Skinner v Victorian WorkCover Authority
[2019] VCC 170
•28 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03002
| NOEL DEAN SKINNER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 January 2019 | |
DATE OF JUDGMENT: | 28 February 2019 | |
CASE MAY BE CITED AS: | Skinner v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 170 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the cervical spine – pain and suffering – loss of earning capacity – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C Hangay | Zaparas Lawyers |
| For the Defendant | Mr A D Clements QC with Mr T Storey | Hall and Wilcox |
HER HONOUR:
Preliminary
1 This is an application by the plaintiff for leave to bring proceedings for common law damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
2 The plaintiff, is a fifty-nine-year-old man who was employed at the Royal Children’s Hospital (“the employer”) as a nurse in the Psychiatric Unit from 28 February 2011 until 10 January 2016 (“the said date”).
3 The plaintiff claims that he injured his neck on the said date when he was assaulted by a patient (“the incident”). In addition, the plaintiff claims that he has suffered a psychiatric condition as a consequence of his work with the employer.
4 The plaintiff has not worked since the said date and claims that his work-related injuries prevent him from doing so.
Legal principles
5 I must be satisfied that the plaintiff has suffered a compensable injury – that is, an injury which he has suffered arising out of, or in the course of, his employment with the employer.
6 The compensable injury must result in an impairment which is serious and permanent.
7 The test for serious injury is subjective, in that it is the effect on or the consequences for the individual plaintiff that must be considered; however, that determination must be made by me objectively, in considering the seriousness of the impairment.
8 In assessing whether or not a physical injury is serious under paragraph s325(1) (a), the consequences in relation to pain and suffering and loss of earning capacity must be such that when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least “very considerable” and certainly more than “significant or marked”.
9 In assessing a mental or behavioural disturbance or disorder under s325(1)(c), the definition requires that the condition be “severe”. This has been held to be more significant than the threshold to satisfy the test under s325(1)(a).[1]
[1]Mobilio v Balliotis & Ors [1998] 3 VR 833
10 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable injury and a Chronic Pain Disorder which meets the “severe” criteria.[2]
[2]Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227 per Ashley JA
11 It is impermissible for the plaintiff to aggregate the impairments from his neck and his psychiatric condition. Each claimed impairment must be considered separately;
12 In this application, 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 the hearing and permanently thereafter.
13 Subsections 325(2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
14 Subsection 325(2)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners & Ors v Podolak[3] in reaching my conclusions.
[3][2005] 14 VR 622
16 The plaintiff swore two affidavits dated 2 March 2018 and 19 December 2018, in support of his application and was cross-examined. He also relied on an affidavit sworn by his wife, Candida, in December 2018. She was not required for cross-examination.
17 I have read all the tendered documents, including medical reports, together with the transcript of the proceedings. Additionally, there was video surveillance of the plaintiff cleaning a car in September 2016 and assisting with some furniture being removed from a van in 2018.
Issues
18 It is not disputed the plaintiff suffered a compensable injury to his cervical spine on the said date.[4]
[4]Transcript (“T”) 9
19 However, the following issues are in dispute:
(i) whether the pain and suffering and loss of earning capacity consequences of the plaintiff’s neck impairment are serious;
(ii) whether any psychiatric impairment is severe;
(iii) whether the plaintiff has established a loss of earning capacity of 40 per cent or more on a permanent basis.
Background to the application
20 The plaintiff is married, has one adult daughter and two grandchildren. He was born in India and migrated to Australia when he was ten years of age. He successfully completed his HSC and after leaving school, studied business/accounting, though he did not complete that course. He worked as an auditor/bookkeeper, then as a labourer.
21 The plaintiff commenced as a student psychiatric nurse in 1982 and completed his studies at Royal Park Psychiatric Hospital in 1985. He worked at various hospitals and institutions as a psychiatric nurse between 1985 and January 2016.
The Plaintiff’s employment with the employer, his injuries and the claimed consequences
22 The plaintiff commenced his employment on 28 February 2011 – at that time he was fit and well. He was employed as a casual bank nurse in the psychiatric ward known as “Banksia”. The Banksia ward contained both a low dependency unit and a high dependency unit, the latter housing patients who were unpredictable, sometimes psychotic and sometimes suicidal. His duties included being the nurse on the floor, administering medication, assessing patients, de-escalating patients and generally ensuring other patients’ safety.
23 The plaintiff suffered an injury to his left shoulder after being assaulted by a patient in the low dependency unit on 15 June 2014. His general practitioner, Dr Samaratna, diagnosed a soft tissue injury. The plaintiff was prescribed anti-inflammatory medication and underwent physiotherapy. He did not take any time off work as a consequence of this injury. He continued to work on the same basis with the employer after the June 2014 incident.
24 On 2 December 2015, whilst undertaking an assessment of a patient, that patient became agitated and commenced assaulting the plaintiff, who felt trapped inside the room. It was not until a Code Grey was called that he obtained assistance and was able to leave the room. Again, the plaintiff did not take any time off work and continued to work on the same basis with the employer after the December 2015 incident.
25 I note the plaintiff suffered a broken wrist when he had an accident on his bike on 6 January 2016.
26 On the said date, the plaintiff was involved in the incident at Banksia – he was assaulted by a patient who he described as grabbing him around the neck very tightly. After he was released, the plaintiff described the patient running full pelt at him, tackling him on the left side, ramming him with a blow to the left side of the upper torso and being thrown about 2 metres.
27 On 11 January 2016, the plaintiff consulted his general practitioner, Dr Samaratna, and saw him two more times over the next month. The plaintiff reported that he had a tender right shoulder and neck and right wrist and reduced movements of the neck and right shoulder.
28 The plaintiff also reported that he was experiencing emotional and psychological reactions to the incident. He was referred to a psychiatrist, Dr Tipirneni, and prescribed medication.
29 As the plaintiff’s neck condition was not improving, he saw a neurosurgeon, Professor Bittar, on 20 July 2017. The plaintiff also completed a six-week pain management course in July 2018. The plaintiff underwent nerve conduction studies in July 2018 and was also recommended to undergo medial branch blocks and radiofrequency denervation for his neck.
30 In June 2018, WorkCover ceased funding for treatment for the plaintiff’s physical injuries. As he could not afford the recommended treatment, it has not taken place.
31 Since July 2018, the level of pain from the plaintiff’s neck condition has increased. He returned to his general practitioner in about November 2018 and Panadeine Forte was recommenced. The plaintiff currently takes Panadeine Forte four times a day on average for pain most days. He has continued to see Dr Samaratna about once a month.
32 The plaintiff continues to take amitriptyline/Endep 25 milligram for neurogenic pain, Valdoxan 25 milligram a day for depression and Temazepam 5 milligram to help him sleep.
33 The plaintiff has also remained under the care of his psychiatrist, Dr Tipirneni, who he sees two or three times a month or as needed.
34 The plaintiff has not worked at all since the said date.
Consequences of the incident
35 As to the consequence of his neck injury, the plaintiff deposed on 19 December 2018, and gave evidence:
(i) he experiences constant daily pain in his neck that feels like a burning pain radiating from the base of his neck to the back of his skull. He feels numbness and tingling in his right arm which he experiences regularly, almost daily, and weakness in the both hands and daily pain in the left shoulder;
(ii) he has not worked since the incident and he has lost the ability to work due to the pain in his neck and left shoulder. He is unable to carry out the physical tasks required to be performed on a daily basis as a psychiatric nurse;
(iii) he suffers depression and flashbacks approximately once a week, with nightmares approximately three times a week. He has difficulty sleeping because of the nightmares and also the pain in his neck – he finds it difficult because of the pain to get in a comfortable position. He has developed dizziness and experiences frequent headaches;
(iv) he is more irritable, more impatient and less tolerant, and has experienced episodes of anxiety regularly. He has a limited ability to concentrate;
(v) his injuries have affected his marriage and he finds the act of sexual intercourse painful because of his neck injury;
(vi) prior to the incident, he regularly engaged in a number of recreational activities including playing snooker, working on the restoration of cars and renovating his house. He engaged in bike riding and would ride in excess of 200 kilometres per week. He is now unable to play snooker, restricted in the time he can work on his car and no longer does work on his house. His bike riding was reduced and now has ceased;[5]
[5]Transcript (“T”) 58 and T60
(vii) his alcohol consumption has increased;
(viii) he frequently needs naps because of the neck pain, and he is often tired.
(ix) his ability to drive is affected by both pain and his medication. He can only drive short distances.
36 The plaintiff currently takes the following medication: Panadeine Forte and Temaze.[6]
[6]T61 and “Current Medication List” addition to the Plaintiff’s Court Book (“PCB”)
37 The plaintiff was cross-examined regarding his account of the level of his current pain and challenged as to its severity. He was cross-examined extensively regarding his activities as filmed in September 2016 and November 2018, and his capacity to engage in them given his account of pain and suffering. He was also cross-examined about his capacity to engage in pre-injury or other suitable employment.
Lay evidence
38 The plaintiff’s wife, Candida, swore an affidavit on 19 December 2018. She confirmed the changes in the plaintiff since he suffered the neck injury and the impact of the injury to his life, including his complaints of daily pain, problems with nightmares and sleeping and interference with social activities that he used to enjoy.
The Plaintiff’s medical evidence – Treaters
(i) neck
39 In his report dated 19 April 2016 and subsequent letter dated 29 April 2017, Dr Samaratna recorded the history that he obtained from the plaintiff, including that he had experienced injuries on 15 June 2014 and 2 December 2015.
40 Dr Samaratna noted that the plaintiff then continued to complain of constant neck pain and that he experienced nightmares, early morning wakening, irritability and poor concentration and loss of libido.
41 X-ray investigations of the cervical spine revealed severe hypertrophic facet joint degeneration on the right at C2-3 and on the left at C3-4 with prominent osteophytes.[7]
[7]PCB 44
42 Dr Samaratna was of the opinion that the plaintiff’s employment or the incident aggravated pre-existing physical injuries to his left shoulder and cervical spine or neck, and had triggered a recurrence of his previously diagnosed depression and anxiety.[8]
[8]PCB 41
43 Dr Samaratna then recommended the plaintiff continue to see his psychiatrist to help him deal with anxiety and depression. He prescribed Endep 50 milligram, and was of the opinion physiotherapy might help his neck and shoulder.
44 As of 26 July 2017, Dr Samaratna thought that the plaintiff’s treatment outcome had been affected by his perception of lack of support from the defendant and his own financial restrictions in accessing other specialist treatments or opinions.[9]
[9]PCB 45
45 In his most recent report dated 17 January 2019, Dr Samaratna noted that the plaintiff continued to complain of severe headaches, neck pain and discomfort in the left shoulder. He also complained of anxiety, stress, insomnia and inability to attend to minimal of domestic chores or recreational activities.[10]
[10]PCB 175
46 On 20 July 2017, the plaintiff first consulted Professor Bittar, neurosurgeon and spinal surgeon, on referral from Dr Samaratna. Professor Bittar provided reports dated 20 July 2017 and 19 October 2017.
47 On initial examination by Professor Bittar, the plaintiff complained of neck pain. The plaintiff had some tenderness in the mid and upper cervical spine with no muscle spasm. The plaintiff had a fairly good range of cervical spine motion apart from rotation to the right which was moderately restricted.
48 Professor Bittar suspected that the plaintiff’s symptoms were probably emanating from the facet joints and given the lack of significant disc prolapse spinal cord or symptomatic nerve root compression on his previous MRI, it is unlikely that he would recommend spinal surgery.[11]
[11]PCB 70
49 Professor Bittar suggested that the plaintiff see a pain specialist.
50 Professor Bittar last examined the plaintiff in October 2017, at which time it was noted that the plaintiff reported worsening of his symptoms. The plaintiff reported that the pain is fairly persistent and aggravated by any significant neck or upper limb activity.[12] In Professor Bittar’s opinion, the plaintiff presents with aggravation of cervical spondylosis and that the facet joints are the most likely generators of pain.
[12]PCB 72
51 Professor Bittar considered the prognosis was guarded, noting the plaintiff was likely to continue to suffer from significant pain and disability into the foreseeable future.[13]
[13]PCB 74
52 The plaintiff was referred to Dr McCallum, pain specialist, by Professor Bittar. Dr McCallum provided reports dated 31 August and 18 November 2017.
53 The plaintiff was seen on 31 August 2017 when Dr McCallum noted that the plaintiff reported pain mostly in the neck. The pain felt hot and the lower bit was the most painful area. The pain was constant and made worse with sitting, driving and with stress. The plaintiff reported mild headache in the occiput which could be dull and like a hangover, and that he also experienced pain around the frontal area.[14]
[14]PCB 76
54 Dr McCallum was of the view that the plaintiff had a good range of neck movement but that he was tender in most of his neck to palpation.[15]
[15]PCB 77
55 Dr McCallum thought that the plaintiff’s neck pain was muscular in origin though it could also be related to the facet joint arthropathy.[16]
[16]PCB 77
56 Dr McCallum listed a number of recommendations for the plaintiff including reduction of his alcohol intake, walking and increased bike riding, changing his medication, as the current regime was unsuitable for driving, and the use of diagnostic medial branch blocks.[17]
[17]PCB 77
57 The prognosis was guarded, given the ability to treat the plaintiff’s chronic pain problem with an active substance misuse problem.[18]
[18]PCB 81
(ii) Psychiatric
58 The plaintiff was referred to psychiatrist, Dr Surya Tipirneni, by Dr Samaratna and first attended in February 2018. He has continued to be treated by Dr Tipirneni and consults him every two to three weeks or on an ‘as needs’ basis.
59 Dr Tipirneni prepared a number of reports. He diagnosed the plaintiff as having a Chronic Adjustment Disorder, depressive type, with a work injury resulting in a Chronic Pain Syndrome.
60 Dr Tipirneni was of the view that the plaintiff required ongoing psychiatric treatment, psychological treatment and medication. In his most recent report, he maintained this diagnosis and noted that the plaintiff required ongoing medication, psychopathy, monitoring and support. He prescribed Valdoxan 25 milligram, one nocte, Endep 75 milligram nocte.[19]
[19]PCB 69
Medico-legal evidence
61 On 17 July 2018, the plaintiff was seen by Dr Ali Kian Mehr, rehabilitation specialist and neurophysiologist, who provided a report dated 13 January 2019.
62 The plaintiff reported to Dr Mehr – constant hot burning pain in the neck that radiated on the top of the right shoulder and his right upper back. It was aggravated by any movement or activities or prolonged sitting and was relieved by using a collar or immobilising it.
63 The plaintiff also reported that he occasionally experienced pins and needles and numbness in the right hand in his lateral three fingers. Sometimes it went to the medial two fingers. His pain intensity was between 3 out of 10 to 6 to 7 out of 10. He also complained of headaches, left shoulder pain, back pain and insomnia.[20]
[20]PCB 83-84
64 On examination of the plaintiff’s neck, Dr Mehr found that the plaintiff had limited range of motion of the lumbar spine. Multiple tender points and triggerpoints were found on his lumbar and cervical spine in the midline and paraspinal findings.[21]
[21]PCB 84
65 Dr Mehr noted that the plaintiff had engaged in a pain management program and reported that his psychological condition improved after that program; however, that his pain condition, as at the date of consultation, remained unchanged.[22]
[22]PCB 84
66 The plaintiff reported to Dr Mehr the following restrictions:
· driving tolerance was around 10 to 15 minutes
· walking tolerance was around 30 minutes
· difficulty tying his shoes and bending over
· difficulty with overhead activities above shoulder level
· no problems working with a computer but could only do so for 10 to 15 minutes
· unable to lift more than 5 kilograms with both hands without aggravation of his neck and shoulder pain
· restrictions in engaging in the recreational activities.
67 Dr Mehr reported that the plaintiff had a number of pain issues, including neck pain, headaches, left shoulder and back pain, and such had an impact on the daily tasks that the plaintiff was able to perform. There was significant psychological impact, including depression, anxiety, Post-Traumatic Stress Disorder, anger issues, irritability and insomnia.[23]
[23]PCB 85
68 Dr Mehr was of the opinion that the plaintiff needed to continue to see his pain specialist to manage his condition and to continue with his psychological/psychiatric support. He recommended physiotherapy and hydrotherapy, and assistance with home-based tasks.[24]
[24]PCB 85
69 The prognosis for the plaintiff’s chronic pain condition was poor due to the chronicity of the condition and multiple perpetuating factors.[25]
[25]PCB 85
70 Dr Aliashkevich, neurosurgeon and spinal surgeon, examined the plaintiff on 12 May 2016 and provided a number of reports.[26]
[26]Reports dated 12 May 2016, 22 May 2017, 28 July 2017, 24 December 2017, 22 November 2018 and 15 January 2019
71 On examination of the plaintiff, Dr Aliashkevich noted that the plaintiff was then complaining of constant burning pain radiating from the base of his neck up to the back of his skull and front of his forehead. He reported that stress, movement, lifting and holding the same posture made his pain worse. That immobilisation and analgesics relieved his pain and the intensity of his neck and back pain was 4 out of 10 on average but increased to 7 to 8 out of 10 sometimes.[27]
[27]PCB 102
72 On examination, Dr Aliashkevich noted the plaintiff’s range of movements of the cervical spine was slightly restricted with rotation possible to around 60 degrees to both sides, flexion possible to 60 degrees and extension possible to 30 degrees. There was moderate paravertebral tenderness noted on palpation of the upper cervical spine.[28]
[28]PCB 103
73 Dr Aliashkevich considered the plaintiff to be restricted in a number of activities including regular or vigorous pushing/pulling, driving for over 30 minutes, prolonged sitting for over 60 minutes, prolonged standing or tolerating static posture for over 20 minutes, repetitive or sustained neck bending and tilting or twisting.[29]
[29]PCB 106
74 Dr Aliashkevich thought that the plaintiff’s condition was consistent with work-related aggravation of pre-existing degenerative disease of his cervical intervertebral discs and facet joints which represented an organic component to his pain. He considered that the core of the plaintiff’s disability and symptoms stem from the physiological and organic aggravation of the pre-existing spine disease.[30]
[30]PCB 108
75 In Dr Aliashkevich’s opinion, the prognosis remained guarded in consideration of a number of factors including: the plaintiff’s failed response to conservative treatment, only partial benefit from a pain management program, regular and long-term intake of opioid pain medications and antidepressants, depression and long period of unemployment.[31]
[31]
76 Dr Aliashkevich viewed the video footage and considered that it was consistent with the history and examination of findings outlined in the body of his previous report.[32]
[32]PCB 109
77 The plaintiff was seen by occupational physician, Dr Joseph Slesenger, on 14 November 2018. He provided reports dated 13 December 2018 and 16 and 21 January 2019, the latter after viewing the video footage.
78 On examination, Dr Slesenger diagnosed a soft tissue injury to the left shoulder with chronic pain, a soft tissue injury to the cervical spine and chronic cervical spine pain aggravation of a left wrist injury that had now resolved, and psychological impairment. He conceded that psychological impairment was not in his expertise.[33]
[33]PCB 179
79 Dr Slesenger thought that the plaintiff had reached a position of maximum medical improvement with regard to his cervical spine and was likely to be left with significant residual impairment that would impact negatively on his employment and his capacity for domestic duties as well as recreational pursuits.[34]
[34] PCB 151
80 Dr Slesenger viewed some video footage of the plaintiff and in his subsequent report dated 21 January 2019, he noted that at the time of the footage in early 2016 or the car wash footage, the plaintiff had a significant residual capacity despite having ceased work in early 2016. That is that the plaintiff appeared to have some limited capacity at that time.
81 Dr Weissman, psychiatrist, saw the plaintiff on 8 December 2017 and 7 November 2018.
82 Following mental state examination on 8 December 2017, Dr Weissmann concluded that the plaintiff was suffering a Chronic Adjustment Disorder with Depressed and Anxious Mood and traumatisation features of moderate intensity or severity, relevant to his employment.[35]
[35]PCB 197
83 Dr Weissman recommended that the plaintiff continue to see Dr Samaratna and Dr Tipirneni and take some alternate medication to alleviate some of the plaintiff’s agitation, emotional distress and nightmares.[36] Dr Weissman viewed the plaintiff’s psychiatric prognosis for the future as quite uncertain and guarded, probably only fair.[37]
[36]PCB 131
[37]PCB 132
84 When the plaintiff was re-examined on 7 November 2018, Dr Weissman considered that the nature, severity and extent of his depressive syndrome had not changed, but there was perhaps slight improvement in the “traumatisation” symptoms.[38]
[38]PCB 197
The Plaintiff’s vocational evidence
85 The plaintiff relied upon a report from Ms Mary Oliver, human resource consultant of Flexi Personnel, dated 16 January 2019 detailing the average earnings for a psychiatric nurse as at that date.
The Defendant’s medico-legal evidence
86 The defendant arranged for the plaintiff to be examined by occupational physician, Dr John Lange, in May 2018.
87 The plaintiff reported to Dr Lange pain in the neck and back of the skull that felt hot. He reported that the pain is exacerbated by driving for 30 minutes and then followed by pain in the frontal area of the head. That he is able to sit for about 45 minutes then needs to change his posture to settle the pain, which usually takes 30 to 45 minutes. The plaintiff is limited in household duties like vacuuming and can only do that task for about 10 minutes. Stress and anger make his neck pain worse.
88 On examination, Dr Lange noted the plaintiff to be a pleasant, co-operative gentleman who demonstrated no evidence of any abnormal illness behaviour. Examination of the cervical spine revealed 70 per cent normal range of movement. Upper limb neurological examination revealed normal lower tone and reflexes. There was no sensory abnormality. Phalen’s and Tinel’s tests were both negative.[39]
[39]Defendant’s Court Book (“DCB”) 49
89 Dr Lange considered the opinion that the plaintiff had sustained an exacerbation of his cervical spondylosis as a result of the incident. He thought that this condition had now settled and that the plaintiff’s ongoing condition was not related to his employment given that he had had two years of rest.[40]
[40]Counsel for the defendant conceded that the plaintiff’s employment continued to contribute to his present employment - T113
90 The defendant also arranged for the plaintiff to be examined by psychiatrist, Dr Timothy Entwisle, on 7 June 2018 and 24 September 2018.
91 Following mental state examination on 7 June 2018, Dr Entwisle diagnosed the plaintiff as having a Chronic Adjustment Disorder with Depressed and Anxious Mood secondary to pain and incapacity which has improved with psychiatric treatment.
92 Dr Entwisle recommended further psychiatric treatment given his improved status and was of the opinion that this would likely result in further stabilisation of the plaintiffs psychiatric condition and improve his mood. He thought the plaintiff’s prognosis was good.
The Defendant’s vocational evidence
93 The defendant relied on:
(i) AMS Consulting Group 130-Week Vocational Report dated 18 April 2018, prepared by Alexandra Galloway, vocational consultant;
(ii) Further AMS Consulting Group report dated 13 August 2018 prepared by Alexandra Galloway; and
(iii) Vocational Assessment Report dated 12 December 2018 prepared by Janette Ash, occupational therapist, and Nicky Burden, vocational consultant.
94 Counsel for the defendant relied on these vocational assessment reports and submitted that the following could be regarded as suitable employment, with the wage estimate gross per week for each job:
Nurse Educator $1,719 gross per week
Vocational Education Teacher $1,626 gross per week
Sales representative $1,802 gross per week
Rehabilitation counsellor $1,772 gross per week
Health Coach $1,480 gross per week
Psychiatric nurse $1,480 gross per week
Community mental Health $1,480 gross per week.
95 Counsel for the plaintiff challenged the admissibility of the vocational reports tendered by the defendant on the basis that they did not meet the criteria under s79 of the Evidence Act.
Pain and suffering consequences for the Plaintiff
The Plaintiff’s reliability and footage
96 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[41]
“The weight to be attached to the plaintiff’s account of the pain experience will of course depend upon an assessment of the plaintiff’s credibility.”
[41](2010) 31 VR 1
97 It is necessary for me to make an assessment of the credibility of the plaintiff – whether he can be considered a reliable witness in relation to his account of the consequences of his injuries as indicated by him in his affidavit, oral evidence and the history and symptoms that he provided to relevant medical professionals. Counsel for the defendant submitted that the plaintiff had exaggerated the pain that he experienced in respect of the neck injury. This, it was submitted, was supported by:
· viewing of the footage depicting the plaintiff on 10 September 2016 washing and polishing the car – that this work was moderately strenuous, over a period of two and a quarter hours, and largely continuous.[42] Further, it was submitted that the plaintiff was entirely unrestricted by any neck or shoulder pain he was suffering that day – that there was nothing in the footage to indicate that he was suffering from any significant pain as would have been expected if the plaintiff’s evidence of burning pain is to be accepted.[43]
· viewing of the footage regarding the plaintiff taking furniture from the van in November 2018 that both a table that he assisted in carrying and a chair that he took off alone, were heavy items that he was able to carry.[44] It was submitted that if the plaintiff was suffering the pain that he indicated in his evidence, he would not have been capable of lifting or helping to lift such furniture.
[42]T107
[43]T108
[44]T110
98 It was submitted the plaintiff was inconsistent in his account of his symptoms to Dr Entwisle as compared to other medical professionals relating to his current capacity to work on his cars, carry out domestic duties and the need for daily afternoon rest. The plaintiff denied that he had told Dr Entwisle any of these matters as they were untrue.[45]
[45]T16-21
99 Additionally, counsel for the defendant submitted that I should not accept the reason proffered by the plaintiff for not working. It was submitted that this was not to do with his level of pain, rather, that his financial situation was such that he was able to sustain his lifestyle without the need to work. Further, it was submitted that he had no motivation to work and I should not accept the plaintiff’s explanation for not returning to or actively seeking any form of employment.
100 Generally, counsel for the defendant submitted that I should not accept the plaintiff as a credible and reliable witness.
101 Counsel for the plaintiff submitted that:
· As to the September 2016 footage, there was only an hour of film when the activity engaged in by the plaintiff took two and a half hours and there were gaps, and in only a portion of the time was the plaintiff working on the car. Although the plaintiff was engaging in an activity involving a continuous motion of or use of his arms, that activity could not be described as particularly strenuous.
· the plaintiff did not assist in taking all of the furniture out of the van, leaving the heavier items to the professionals. His wife was not cross-examined about what the plaintiff took from the van, although she was present in Court during the hearing.
· the plaintiff, in the course of cross-examination, readily made concessions, particularly regarding the impact of his shoulder injury.[46] Further, the plaintiff conceded that he had engaged in various activities such as working on his BMW[47] and bike riding.[48]
· I should accept the plaintiff’s evidence and that he gave “reasonable and plausible explanations”.[49] There was little other challenge, apart from with the footage, to the specifics of the plaintiff’s account of his pain in his evidence or account to medical practitioners.
[46]T56-57
[47]T34
[48]T52
[49]T138
Assessment
102 Criticisms made by counsel for the defendant of inconsistencies in the plaintiff’s account to Dr Entwisle should be viewed in the context that the report did not purport to be a verbatim record of the history that was provided by the plaintiff during his examination. Having seen the plaintiff give his evidence, any inconsistency was not of such a nature as to undermine his credit.
103 I have viewed the surveillance whilst the plaintiff was being cross-examined and after the completion of the hearing.
104 The first footage depicts the plaintiff engaging in cleaning and or polishing the side of a car – he repetitively uses both hands in rubbing the car with different materials and he bends down to the area on the car where he is focussing. At no time did he evince any sign that he was suffering any physical pain to his neck or otherwise whilst carrying out the task.
105 On its face, the physical activity in which the plaintiff engaged as depicted in the first footage raises a question as to the credibility of the plaintiff’s account in his affidavit and to medical practitioners of the extent of the physical limitations imposed on him by his injury to his neck. This is particularly so given the footage was taken in September 2016, eight months after the incident.
106 However, when cross-examined regarding this activity, the plaintiff maintained that when he was performing the car wash/polish/detailing tasks, within about 20 minutes he was in serious neck pain but he continued to do the task. He conceded that his suffering was not apparent on viewing the footage.
107 This footage is not a continuous record of the plaintiff over an approximate two-hour period. There are jumps in time and breaks – the plaintiff gave evidence that he did not work continuously on the car. When his activities can be observed, I view the plaintiff as having engaged in this work on the car in an ambling or slow manner, without any degree of urgency or haste, and with no evidence of vigorous application of force at any time. The fact that it is not discernable from the film that the plaintiff is experiencing any pain is not determinative.
108 Additionally, the plaintiff provided an explanation for continuing with the job despite the pain, as he wanted to complete the job so the owner of the car, who was dying, would be able to sell the car as soon as possible.
109 The second footage clearly shows the plaintiff assisting in carrying off a table, a chair and another item off the van. I accept that the plaintiff was cautious in assessing what he was capable of carrying, and his level of assistance as revealed in the footage is not inconsistent with his account of the pain suffering as a result of his neck injury.
110 Both periods of footage are a small snapshot of the plaintiff’s activities over the past two years[50] – I do not consider that footage to be inconsistent with his capacity to do some tasks.
[50]Case regarding surveillance and snapshot
111 The plaintiff has consistently maintained a level of pain associated with the neck to all medical practitioners. None of the medical professionals were of the opinion that the plaintiff had exaggerated or feigned his pain or restrictions in any way. Dr Lange describes the plaintiff as a “pleasant, cooperative gentleman”.[51] Dr Weismann described the plaintiff as “very straightforward, genuine, candid and a credible historian and witness”.[52]
[51]DCB 49
[52]PCB 197
112 The plaintiff did make a number of concessions in the course of his evidence – including regarding improvement in his sleep after taking Valdoxan medication, and his capacity to undertake some activities – these point to an assessment of him as reliable.
113 Having had the opportunity to view the plaintiff in the witnessbox, it is also important for me to make an assessment of the manner in which the plaintiff gave his evidence. The plaintiff was cross-examined and I was able to observe how he responded to challenges regarding his capacity to undertake tasks given the video footage and as to the source of information in Dr Entwisle’s report.
114 I found the plaintiff to be a truthful witness who gave a credible account of the neck pain that he is suffering and the consequences to him. I accept that he feels that he is unable to work because of the pain he is experiencing, that he would not be a reliable employee as he requires a rest most days in the afternoon and that the impact of his medication is also such that he does not have the ability to concentrate for extended periods.
115 Taking into account all of the evidence I am satisfied that the plaintiff suffers from neck pain – I accept his evidence of ongoing pain and restriction, and the need for significant ongoing pain medication. In these circumstances, I accept that as a result of the injury, the plaintiff is no longer able to do the job for which he was trained as a psychiatric nurse. Such an impairment is serious.
Loss of earning capacity
116 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish under s325(2)(e) of the Act, on the balance of probabilities, that as at the date of the hearing:
(i) he has a loss of earning capacity of 40 per cent or more, measured as set out below; and
(ii) he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
117 For the purposes of paragraph (i), a plaintiff’s loss of earning capacity is to be measured by comparing the plaintiff’s gross income from personal exertion (expressed at an annual rate) which the plaintiff is —
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the plaintiff was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred; (s325(2)(f) of the Act).
118 The plaintiff carries the onus in relation to economic loss and particularly in establishing satisfaction of this statutory criteria.[53]
[53]Barwon Spinners & Ors v Podolak (supra)
119 I am therefore required to:
(i) determine a “without injury” earnings figure;
(ii) determine the plaintiff’s capacity for suitable employment;
(iii) determine the potential for rehabilitation and retraining.
“Without injury” figure
120 Counsel for the plaintiff submitted that before the incident, or but for his injury, the plaintiff would have earned in the vicinity of $181,083 per annum[54] – 60 per cent of that amount is $108,650 per annum or $2,089 per week.
[54]See Amended Plaintiff’s Statement of Issues regarding loss of earning capacity
121 This was calculated on the basis of taxation returns of the plaintiff showing income for the previous financial years up until the time of the incident or the said date and taking into account other benefits:
Financial year 2013-2014 $72,693
Financial year 2014-2015 $72,696
Financial year 2015-2016 (up till the said date) $94,024 ($3,482 per week).
122 Counsel for the defendant submitted that the figure that most fairly reflects the plaintiff’s earning capacity were not those in the period in the financial year immediately preceding the incident as:
(i) there was a significant increase (more than double) in his gross income from the two previous financial years to that in the period to be calculated; and
(ii) the figure was more than that relied on by the plaintiff as to the salary of a psychiatric nurse in their report[55] – $134,194 per annum or 60 per cent of $2,580 gross per week = $1,548.
[55]See Amended Plaintiff’s Statement of Issues regarding loss of earning capacity.
123 Rather, it was submitted, the fair approach would be to average out the earnings of the plaintiff over the three-year period from the beginning of the 2013-2014 financial year until the said date – that leaves 60 per cent of $1,927 gross per week = $1,156.
124 It is necessary to consider the part of the six-year period that most fairly reflects the plaintiff’s earning capacity:
“The essence, then, of the inquiry is to fix a figure which ‘most fairly’ reflects the earning capacity of the injured worker, absent the subject injury.”[56]
[56]Acir v Frosster Pty Ltd [2009] VSC 454
125 In the circumstances of this case, averaging the gross income from the plaintiff’s personal exertion within the relevant period is not a fair reflection given that the plaintiff, in the years where his income was reduced, was working on renovating his house, working only 20 to 30 hours a week. The plaintiff took on additional hours as a nurse when he was unable to continue doing that renovation work, resulting in a significant increase in his income.[57]
[57]T73 and T83
126 In this case, for a period prior to the injury, the plaintiff was working or had the capacity to work increased hours as a psychiatric nurse and did so. After the injury, he no longer had the capacity to work any hours. I have taken into account the full picture of the plaintiff’s capacity to earn money in the workforce prior to the said date.
127 I accept that a fair reflection of the plaintiff’s pre-injury earnings is as submitted by the plaintiff – the fact that the plaintiff substantially increased his income in the period preceding the incident is demonstrative of his physical capacity and reflective of the changed circumstances of the plaintiff, with him being available for more work or hours as a psychiatric nurse.[58]
[58]Herald and Weekly Times and Victorian WorkCover Authority v Jessop [2014] VSCA 292
128 I am satisfied that the $181,083 per annum[59] – 60 per cent of that amount, or the pre-injury figure, is $108,650 per annum or $2,089 per week.
[59]See Amended Plaintiff’s Statement of Issues regarding loss of earning capacity
129 Therefore, I must be satisfied that the plaintiff is incapable of earning more than $2,089 per week now and on a permanent basis.
Capacity for suitable employment
130 The assessment as to what constitutes suitable employment for a plaintiff is a test of physical capacity, not employability, and it involves consideration of what the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvements as might be thought likely or possible after undertaking vocational education.[60]
[60](Supra) at paragraph [49]
131 The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether or not the work is a reasonable distance from the plaintiff’s place of residence. Given my acceptance of the pre-injury earnings as $2,089 and rejection of the defendant’s submission that the pre-injury earnings should be $1,156, it was conceded by counsel for the defendant that if I was satisfied that the plaintiff had no capacity or limited capacity for suitable employment, that the plaintiff had discharged the evidentiary burden.
Medical opinion regarding current capacity to work – neck injury
132 A number of the medical practitioners expressed their views regarding the plaintiff’s capacity to work at the time of their assessment.[61] These are of limited assistance given that they are dated, though are consistent to the extent that they indicate that the plaintiff was not capable of returning to his pre-injury work.
[61](Supra) at paragraph [49]
133 Dr Samaratna’s current view is that the plaintiff is unable to return to his pre-injury duties as a mental health nurse which involves direct contact with patients, though he considered that he may be suitable for administrative duties in a mental health service.[62]
[62]PCB 175
134 Dr Aliashkevich’s current view was that the plaintiff was unfit for pre-injury employment and alternate duties – that he was not currently suited for any reliable, consistent and productive work while being on opioid medications and anti-depressants. He noted that if the plaintiff responded positively to treatment suggested by Dr McCallum and Dr Mehr in the future, the plaintiff may regain some work capacity for suitable employment, but that would require assessment by an experienced qualified occupational specialist.[63]
[63]PCB 108
135 Dr Slesenger is of the opinion that the plaintiff has a restricted capacity for work – that he could return to work four hours a day, four days a week, performing suitable duties, although he would have difficulty attending work on a reliable and consistent basis.[64] Dr Slesenger believed that the plaintiff had the capacity to work with the following restrictions:
[64] PCB 184, PCB 151 and PCB 182
· avoid sustained forward reaching
· avoid over-shoulder reaching
· avoid push, pull, carry or lift over 5 kilograms.
· avoid repetitive neck and shoulder tasks.
136 Dr Slesenger considered each of the jobs included in the Recovre report of 12 December 2018, commented on the role or tasks that would be required to be carried out by the plaintiff and expressed his opinion as to the plaintiff’s capacity to do so. Dr Slesenger sets out the reasons why he is of the opinion that the plaintiff was capable or not of each of the specific jobs. He was of the opinion that four out of the seven jobs were suitable employment for the plaintiff, each with relevant restrictions outlined in his report and for limited hours.
137 Dr Lange, occupational physician, expressed his opinion that the plaintiff was capable of returning to his pre-injury duties and hours. He accepted that the plaintiff had the capacity to perform a range of employment options on a full-time basis, contained in the 130-hour week vocational assessment report dated 9 April 2018. This opinion was confirmed in a later report dated 4 January 2019, again with suitable employment options detailed therein.
138 In his final report dated 4 January 2019, Dr Lange considered the employment options recommended by vocational assessors, Recovre, in their report of 12 December 2018. Dr Lange considered that the plaintiff would be capable of performing six out of the seven roles listed in the Recovre report, namely:
(i) Health information officer
(ii) Admissions clerk
(iii) Welfare support worker
(iv) Health coach
(v) Psychiatric nurse and community mental health clinician.
139 Dr Lange was of the view that the role as a clinical nurse educator was not suitable employment for the plaintiff.
140 Counsel for the plaintiff relied on the opinion of Professor Bittar that the plaintiff did not have any realistic capacity for employment, or alternatively, Dr Slesenger’s view that the plaintiff had the capacity to work for up to 16 hours in suitable employment.
141 Counsel for the defendant relied on Dr Lange’s opinion. As noted, Dr Lange considered each of the jobs included in the Recovre report – he is of the view that the plaintiff has capacity to return to his normal duties as a psychiatric nurse but also considered that the plaintiff had the capacity for suitable employment in six to seven occupations listed in the Recovre report.
142 Dr Lange provided reasons as to why the plaintiff would not be suitable for the role of clinical nurse educator. Although reference is made in his report to the detailed job descriptions in the Recovre report, Dr Lange does not, in his report, individually consider each alternative job or reveal the basis of his reasoning for his opinion that:
(i) all the other jobs would be suitable employment;
(ii) the plaintiff has the capacity to engage in them on a full-time basis.
143 Such an analysis was conducted by Dr Slesenger.
144 The plaintiff has persistently reported neck pain since January 2016. The optimism of Dr Lange as to the plaintiff’s capacity to return to pre-injury employment or other suitable employment on a full-time basis, needs to be viewed in the context of his opinion that the plaintiff’s pain, as a result of the incident, has now settled.
145 I accept that due to the nature and severity of his neck pain, the plaintiff would not be a reliable employee and would be unable to attend work on a regular basis. I accept that the plaintiff has a desire to return to employment but is incapable of returning on a full-time basis – he would however be capable of returning to suitable employment at a maximum of 16 hours a week.
146 In considering the whole of the evidence relevant to his spinal impairment, I am satisfied that the plaintiff could only work very reduced hours in order to ensure that he was able to attend work on a consistent and reliable basis. Given the unpredictable nature of his symptoms and level of pain after engaging in some activities, I am not satisfied that the plaintiff could work full time. Rather, I am satisfied that he could work on a reduced basis as suggested by Dr Slesenger.
147 As conceded by counsel for the defendant, if I was satisfied that the plaintiff could engage in suitable employment on a reduced basis of up to 16 hours a week, the plaintiff suffers the requisite 40 per cent loss of earning capacity as a consequence of his spinal impairment.
148 It is not necessary for me to rule on the admissibility of the defendant’s vocational reports having regard to this concession by counsel for the defendant.
Section 325(2)(g) permanence
149 As the plaintiff’s cervical problems have continued for some years, despite treatment, I am satisfied the impairment in relation thereto is permanent.
Conclusion
150 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both loss of earning capacity and pain and suffering.
The Plaintiff’s psychiatric impairment
151 Having granted leave to bring proceedings for damages for pain and suffering and loss of earning capacity pursuant to ss 325(1)(a), I am not required to determine the application pursuant to ss 325 (1) (c).
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