Snelson v H W Greenham and Sons Pty Ltd and VWA

[2011] VCC 1394

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-01864

KIRK SEAN SNELSON	Plaintiff
v
H W GREENHAM & SONS PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 24 and 25 October 2011
DATE OF JUDGMENT:	25 November 2011
CASE MAY BE CITED AS:	Snelson v H W Greenham & Sons Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2011] VCC 1394

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Serious injury – whether the consequences of the worker’s injury in relation to pain and suffering and loss of earning capacity were “at least very considerable” – where the worker was aged under the age of 26 years at date of injury – application of sub-s.134AB (38)(e), (f) and (g) – whether the worker had established a loss of earning capacity productive of financial loss of 40 per centum or more.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell SC with	Slater & Gordon Ltd
Mr A McNab
For the Defendants	Mr J P Gorton	Wisewould Mahony
HIS HONOUR:

1          In February 2006, Kirk Snelson was twenty-four years old. He was a fit young man residing in Tongala in country Victoria. He was employed on a full-time basis at the first defendant’s abattoir. He was actively involved in football, golf, cricket, squash, trail bike riding and fishing. He led a full social and recreational life.

2          On 22 February 2006, whilst stepping up onto an elevator at work, his right foot slipped on some fat on the floor, causing him to twist and jerk sharply (“the incident”). He heard and felt a crack in his low-back and immediately suffered from significant low-back pain. He has suffered from ruptured discs at two levels of his lumbar spine.

3          He seeks leave in this proceeding to bring a claim for damages against his employer in respect of pain and suffering and loss of earning capacity arising from that injury.

4 His right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that he has suffered a “serious injury”.[1]

[1] S.134AB(19)(a)

5 The term “serious injury” is defined in sub-section 134AB(37) of the Act, insofar as is relevant, as “permanent serious impairment or loss of a body function”.

6          The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]

[2]             Barwon Spinners v Podolak (2005) VSCA 33 at paragraphs 18-19

7          The term “serious” is to be satisfied by reference to the consequences to Mr Snelson of any impairment or loss of body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]

[3] S.134AB(38)(e)

8          The impairment or loss of a body function shall not be held to be serious for the purpose of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable.[4]

[4] S.134AB(38)(c)

9 Mr Snelson was aged under twenty-six years at the date of his injury. Accordingly, it is not necessary for him to establish that he has a loss of earning capacity of 40 per cent or more, calculated (as would otherwise be the case) in accordance with s.134AB(38) (e)(i) and (f) of the Act. However, in accordance with sub-section (38)(e)(ii), he must nevertheless establish on the balance of probabilities that he will, after the date of this hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Sub-section 38(f) and, in particular, sub-section 38(f)(ii), have no application in this case.

10        The issues to be determined in this application are:

(a)	what injury has been suffered by Mr Snelson?;
(b)	what are the consequences of such an injury?;
(c)	whether Mr Snelson has suffered a loss of earning capacity which is “serious” and which will, after this hearing, permanently be productive of a financial loss of 40 per cent or more.

Injury

11        I accept that Mr Snelson injured lumbar discs at L3-4 and L4-5 in the incident.

12        He underwent a CT scan in March 2006, and an MRI scan in April 2007. He was referred to an orthopaedic surgeon, Mr Barrett, in April 2006. Both Dr Tisdall (general practitioner) and Mr Barrett considered that he had sustained intervertebral disc ruptures involving both the L3-4 and L4-5 lumbar discs.

13        The defendants (or the claims agent acting on their behalf) arranged for Mr Snelson to be examined by orthopaedic surgeons, Mr Kudelka and Mr Ian Jones; a consultant in occupational medicine, Dr Poppenbeek, and a neurosurgeon, Mr Brazenor.

14        Mr Kudelka described the injury to Mr Snelson’s back as a strain which had caused pain and stiffness.[5] However, his reports of September and October 2006 pre-date the 2007 MRI scan. He was not asked for a supplementary report. Accordingly, I place little weight on his opinion.

[5]             Defendants’ Court Book (“DCB”) 93

15        Dr Poppenbeek described the injury as an aggravation of pre-existing L4-5 lumbar spine degenerative disease.[6] He has not seen Mr Snelson for four and a half years.

[6]             DCB 108

16        Mr Jones considered the history and clinical findings to be consistent with an L4-5 disc disruption.[7]

[7]             DCB 137

17        Mr Brazenor initially considered that Mr Snelson had injured his L4-5 disc in the incident.[8] However, in a later report, having compared the CT scan of 2 March 2006 and the MRI scan dated 21 April 2007, he considered that, at some time between those two scans, the L4-5 disc had been injured. Nevertheless, he thought that the incident had possibly caused a tear in the right posterior segment of the L4-5 disc annulus and that at some stage between March 2006 and April 2007, this material had worked its way out through the torn fibres of the annulus, protruding into the right lateral recess at the L4-5 level by the time of the MRI scan in April 2007. There was no evidence of any event likely to result in a further injury occurring during that period. Counsel for the defendant did not submit that I should find that there had been some intervening injury.

[8]             DCB 124

18        Mr Jones specifically disagreed with Mr Brazenor’s comments in relation to such comparison. He considered that a comparison of a CT scan and an MRI scan could not be absolutely relied upon in terms of assessing the size of any disc injury or prolapse.

19        I accept the evidence of Mr Barrett that Mr Snelson suffered disc ruptures at the L3-4 and L4-5 levels of his lumbar spine as a consequence of the incident. I note this diagnosis was also made by Mr Brownbill, neurosurgeon, who saw Mr Snelson later on a medico-legal basis.[9]

[9]             PCB 53

Consequences

20        I accept that following the incident, Mr Snelson suffered from significant low- back pain. He reported the incident to his supervisor at work who, by coincidence, was his brother, Troy. He was put onto lighter duties and managed to complete his shift. The following day he had difficulty getting out of bed and had difficulty walking because of low-back and leg pain. Within a few days, he consulted Dr Tisdall, and within a relatively short period, was referred to Mr Barrett. Conservative treatment was recommended. He has been advised that surgery is not considered an option as a consequence of his problems at more than one level of his lumbar spine.

21        Since the incident, he has had difficulty lifting, bending, twisting or stooping. These activities aggravate his symptoms. He also has difficulty standing, sitting, or driving a car for any length of time.

22        He finds that when his pain is bad, he needs to lie down.

23        He has difficulty sleeping at night as a consequence of back pain.

24        Prior to his accident, he played a role on his parents’ farm helping his father. He was capable of chopping wood, carrying feed, loading trucks and working with livestock. I accept that as a consequence of his back pain, he is now unable to do these activities.

25        He had always intended to be involved with farming in the future. As a consequence of his injuries to his low-back, he would be unable to cope with farming work.

26        His back pain varies in intensity, depending on what he does. If he does too much physically, he has worse back pain, radiating into his buttock and down his right leg. He suffers flare-ups of pain.

27        He gave evidence that when he had a flare-up of back pain, it was quite severe. This could happen as a result of bending and generally occurred a couple of times a week. When this occurred, he was generally forced to lie down.

28        He takes medication in the form of Panamax (available over-the-counter) and the anti-inflammatory medication, Voltaren. He does not take this medication often. He is concerned about becoming addicted to medication. He had had a previous problem with drugs when he was younger.

29        He has not played football since the incident. He attempted to play golf earlier this year. He played six or seven holes and found he was getting severe back pain and did not finish his round. He has not been able to continue playing cricket as he had before the incident.

30        In the course of his oral evidence, his attention was drawn to an affidavit by one Darren Maloney in which he deposed that he had seen Mr Snelson putting fence posts up with his brother around Christmas 2009. Mr Snelson conceded that at that time he and his brother had been involved in the erection of an electric fence on a property leased by their father from Mr Maloney. He said that his activity was restricted to advising his brother on the line of the fence and fence posts over a period of about an hour-and-a-half. I accept that evidence.

31        Mr Snelson had made an attempt to return to work at the abattoir in November 2006. He was supposedly on light duties but the work he was given was heavy. He was unable to continue. A similar scenario occurred the following year. At that time, he was required to regularly lift boxes of cattle hooves. He thought the boxes were around 25 kilograms. His back was unable to cope with that work.

32        I consider that Mr Snelson gave his evidence in a straightforward manner. He did not appear to exaggerate his problems. Counsel for the defendant did not suggest that he was untruthful.

33        I am satisfied that the pain and suffering consequences of Mr Snelson’s low- back injury are serious for him. Prior to the injury, he was a young man leading a full and active life. As a consequence of the injury, his activities have been grossly reduced. He is still a very young man with several decades of life ahead of him. His ability to participate in a wide range of recreational, leisure and employment activities has been affected to the extent that it could be fairly described as being considerably “more than significant or marked” and as being “at least very considerable”. No medical practitioner predicted any significant improvement in his condition. I consider it to be permanent, in the sense that it is unlikely to improve in the foreseeable future.

Loss of Earning Capacity

34 Pursuant to s.134AB(38)(b) of the Act, the term “serious” is to be satisfied by reference to the consequences to Mr Snelson of any impairment or loss of a body function with respect to both pain and suffering and loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of body function. Pursuant to sub-section (38)(c), such impairment or loss of a body function will not be held to be serious in regard to loss of earning consequences, unless those consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable. The “very considerable” requirement applies both to pain and suffering consequences and to loss of earning capacity consequences.

35        Pursuant to sub-section (38)(e)(ii) of the Act, for leave to be granted in respect of loss of earning capacity, in addition to satisfying the “very considerable” consequence test, Mr Snelson must establish that he will, after the date of this hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.

36        The provisions of sub-section (38)(f) do not apply to this application because they apply only for the purposes of sub-section (38)(e)(i). It follows that I am not restricted when assessing what Mr Snelson would have been capable of earning from personal exertion had the injury not occurred, to the income that he was capable of earning during the three years before and the three years after his injury as most fairly reflected his earning capacity. Rather, I am able to look at what his earning capacity would have been at the present time had the injury not occurred.

37        In addition, Senior Counsel for Mr Snelson submitted that sub-section (38)(g) of the Act had no application here. His submission was, as I understood it:

(a)	Sub-section (38)(g) refers to a determination of earnings in accordance with sub-section (f);
(b)	Sub-section (38)(f) does not apply to a worker who was under the age of twenty-six at the time of injury;
(c)	Therefore, no part of sub-section (38)(g) could apply to such a worker;
(d)	If sub-section (38)(g) did not apply, references to “suitable employment” as defined in s.5 of the Act were not relevant. The only reference to “suitable employment” in s.134AB was in sub-section (38)(g).
(e)	Hence, not only is the period of three years before and three years after the injury date of no relevance, the Court can also have regard to availability (or non-availability) of work because the concept of “suitable employment” and, in particular, part (b) of the definition of it had no relevance here

38        I do not accept that submission. Whilst the various parts of sub-section (38) are somewhat confusing, I consider that the net effect of the sub-section is that I am not limited to the period of three years before and three years after the date of injury in assessing the loss of earning capacity in accordance with sub-paragraph (e)(ii). I consider that sub-section (38)(g) continues to apply, in that I must take into account, when considering Mr Snelson’s loss of earning capacity, what his capacity is or would be after rehabilitation or retraining, and taking into account his “capacity for suitable employment” (as defined) and, where applicable, the reasonableness of his attempts to participate in rehabilitation or retraining, I consider that he still must demonstrate a loss of earning capacity of 40 per cent or more on that basis.

39        Evidence was given as to the current earnings of one Patrick Hocking, a current employee of the first defendant, who had worked with the plaintiff up to the time of the incident, performing similar duties. Mr Snelson considered that, had he not been injured, he would have continued in that employment and would have been capable of earning the same gross income as that earned by Mr Hocking. The defendants did not challenge this.

40        Mr Hocking’s PAYG payment summary for the financial year ending 30 June 2011 indicated that he earned a gross income of $48,878. I accept that Mr Snelson would have had the capacity to earn that amount had he not been injured. I consider that I am required by sub-section (38)(e)(ii) of the Act to assess whether or not Mr Snelson’s loss of earning capacity will be productive of a financial loss of 40 per cent or more after the date of this hearing and permanently. That is, in order to be given leave to commence a proceeding for loss of earnings damages against his employer, he must establish that he currently has an earning capacity of $29,326 (being 60 per cent of Mr Hocking’s current income) or less, and that the reduced earning capacity is likely to be permanent.

41        Mr Snelson was cross-examined at length about his potential to return to the workforce. Counsel for the defendants conceded that he would not be able to return to heavy labouring work of the type that he was performing at the time that he was injured. He was asked questions concerning other jobs that he had had in the years before the incident. He had performed work as a machine operator whilst working in Western Australia. He loaded samples of dirt into some sort of industrial washing machine. Another job involved the cutting up of rods with a hacksaw-like machine. These jobs were relatively light but involved a degree of twisting and bending. In any event, they were jobs associated with the mining industry in and around Kalgoorlie. There was no suggestion that such jobs were available in the Tongala region.

42        A number of medical practitioners expressed views on the plaintiff’s capacity to return to the workforce:

(a)	Dr Tisdall, in September 2008, was of the view that Mr Snelson was not able to carry out heavy work but that he should be fit for full-time menial work that might have required some retraining.[10] In his report of 22 November 2010, he said that Mr Snelson was only suitable for sedentary employment in the future.[11] He thought that he could carry out any work in a sedentary role with the opportunity to stand and walk if necessary to relieve pain and discomfort in his back. He considered that Mr Snelson had improved his chances of finding new employment by completing a certificate in retail sales and in undertaking a certificate in business studies.[12] Clearly, Dr Tisdall was not of the view that the plaintiff had no work capacity and made no reference to any restriction in working hours. Dr Tisdall is no longer alive and has not seen Mr Snelson for some years.
(b)	Mr Barrett, in his report of 8 August 2008, stated that he had warned Mr Snelson that future work should be much lighter than that of a slaughterman to prevent increasing symptoms and lumbar disc deterioration in the future. He foresaw a graduated return to lighter work in the future.[13] He did not refer to any permanent restriction in working hours. He last saw Mr Snelson about four and a half years ago.
(c)	In September 2011, Dr Capes expressed the view that Mr Snelson could probably work as a ticket seller or a tourist information officer referred to in a vocational assessment report with which he had been provided. He thought that it was likely he would be restricted in bending, lifting, twisting, stooping, pushing, pulling, repetitive and/or prolonged use of his back, overhead activities, kneeling, sitting, walking and standing, and that this incapacity would continue for the foreseeable future. Dr Capes thought he did have the capacity to perform suitable duties involving lifting weights of less than 5 kilograms, no repetitive lifting, bending or twisting and no prolonged sitting or standing, and no driving of a motor vehicle for more than fifteen minutes. Further, he should not walk on uneven ground. If these conditions could be met, he thought Mr Snelson could work some sixteen hours per week;[14]
(d)	Mr Brownbill, in his report dated 8 December 2010, stated that Mr Snelson should not be involved in repetitive pushing, pulling or lifting, repetitive or prolonged use of the back, overhead activities, kneeling, squatting, crouching or prolonged sitting, walking or standing. He considered that Mr Snelson would have difficulty obtaining suitable employment which he could pursue in a regular and ongoing fashion.[15] He thought that incapacity would continue for the foreseeable future.[16] In his report dated 12 October 2011, Dr Brownbill indicated that he agreed with activity restrictions proposed by Dr Capes, whose report he had perused, and agreed that Mr Snelson could work sixteen hours per week if those restrictions could be met.
(e)	In October 2006, Mr Kudelka considered that Mr Snelson was fit for restricted duties, specifically with no repetitive bending or twisting of his back and no lifting in excess of 10 kilograms;[17]
(f)	In May 2007, Dr Poppenbeek considered that Mr Snelson had a current work capacity and was fit for full-time restricted duties, avoiding unsupported, frequent or repetitive forward bending, continuous lifting of over 5 kilograms of intermittent lifting of over 10 kilogram weights, and remaining in one posture for periods in excess of sixty minutes at a time.

[10]           PCB 41

[11]           PCB 44

[12]           PCB 45

[13]           PCB 49-50

[14]           PCB 60-61

[15]           PCB 54

[16]           PCB 55

[17]           DCB 95

In June 2007, Dr Poppenbeek conducted a worksite assessment and, in particular, inspected work involving the cleaning of cattle hooves. He considered that was a job that Mr Snelson was capable of performing, provided he could work at his own pace and take breaks whenever he needed to. I consider that a job involving a worker working at his own pace and taking breaks whenever he needed to is not a real job but rather an activity arranged by an employer for an injured employee for the purpose of complying with its WorkCover obligations and in the hope that the worker might, at some later date, improve to the point where he could perform a real job.

(g)

In October 2011, Mr Jones considered that Mr Snelson was incapable of physical employment where there was any requirement to bend, lift or carry. He thought that he would be capable of undertaking duties in a number of sedentary employments such as a tourist information officer, ticket seller or sales assistant (provided there was no requirement to lift, bend or carry), product assembler and product examiner.

(h)

In May 2011, Mr Brazenor was of the view that Mr Snelson was capable of performing a number of sedentary jobs.

43        With regard to sedentary or administrative jobs, I formed the view that Mr Snelson was a relatively unsophisticated country man, whose work history consisted entirely of farming and other forms of manual labour. He had limited school education, having taken two years to pass Year 11. His school had advised him not attempt Year 12. He did not strike me as someone realistically suitable for office or administrative employment, notwithstanding that he had completed some basic TAFE courses in business studies and in retail sales.

44        As a consequence of his back injury, he has difficulty driving, standing or sitting for lengthy periods. I consider that any job requiring him to do so would not be suitable. It was suggested to him in cross-examination that he could work as a stock inspector. However, the evidence as to what such a position involved indicated that it involved a great deal of driving and would, in my view, have been unsuitable for him.

45        The plaintiff tendered a report from a human resources consultant, Louise Meilak. She also gave oral evidence and was cross-examined. She had been provided by Mr Snelson’s solicitors with reports from Mr Brownbill, Dr Tisdall and Mr Barrett. She had not been provided with reports of Mr Kudelka, Dr Poppenbeek, Mr Brazenor or Mr Jones. The thrust of her evidence was that, as a recruiter, she would be concerned about his limited work capacity and possible low productivity. She stated that she would not have put Mr Snelson forward to any employer in respect of any job.

46        I did not find Ms Meilak’s evidence helpful. She had only considered part of the medical evidence available concerning Mr Snelson’s work capacity and work restrictions. I found her views that Mr Snelson was unfit for any work of any nature, even on a part-time basis, to be unjustified. I accept the submissions of counsel for the defendants that there were a number of features of her evidence which should cause me concern.

(a)	Ms Meilak had never heard of the expression “a light work back”, which I found surprising given that she was put forward as a vocational expert and was likely to have dealt with many workers with back injuries;[18]
(b)	She had no understanding of the frequency with which Mr Snelson took painkilling medication, or the type of medication involved;[19]
(c)	It surprised her that Mr Snelson’s evidence was that he only took over- the-counter painkilling medication every one to two months;[20]
(d)	She appeared to approach her task on the basis of whether, from a recruiter’s perspective, Mr Snelson would be easy to place in employment. That is not the consideration here. In this case, the onus is on Mr Snelson to establish that there is no suitable work available for him.[21]

[18]           T 127

[19]           T 128

[20]           T 131

[21]           T 139

47        I place little weight on Mr Meilak’s evidence in relation to the issue of Mr Snelson’s earning capacity. However, I note and accept the likely wage rates referred to by her in her supplementary report.[22]

[22]           PCB 75

48        In respect of the loss of earnings consequences of his injury, I am satisfied that Mr Snelson is unlikely to ever return to the type of work that he was doing at the time of his accident and will not be able to take on the wide range of farming activities that he was previously able to do.

49        I accept that Mr Snelson is capable of performing jobs involving work with restrictions outlined by Dr Capes. All medical witnesses were of that or similar opinion.

50        The issue comes down to whether Mr Snelson is likely to be able to perform work involving lighter duties on a full-time basis or whether he would be restricted in his hours of work

51        Here, there are differing medical opinions as to Mr Snelson’s capacity. I prefer the evidence of Dr Capes. His specialty relates directly to employability and earning capacity. I accept that Mr Jones and Mr Brazenor have expertise in their respective fields of surgery. It is not clear to me what expertise or knowledge either of them have in the area of occupational medicine or of duties required to be performed in various light duty jobs. I am conscious of the danger that medico-legal experts (without specialist occupational health and safety qualifications or experience) will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by a worker.[23]

[23]           Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [96]

52        I place less weight on the views of Mr Barrett, Dr Poppenbeek and Mr Kudelka, because those views were expressed some years ago. I am required to assess loss of earning capacity at the present time.

53        The onus of establishing the required loss of earning capacity lies with Mr Snelson. I am satisfied that he has discharged that onus.

54        I accept that Mr Snelson is likely to continue to experience ongoing back pain with regular flare-ups which would interfere with his ability to work in and hold a full-time job. On balance, I find that he will, in the future, be limited to light, part-time work and I accept that he is unlikely to be able to cope with more than sixteen hours of work per week on an ongoing basis. There is no direct evidence as to what hourly rate he would be likely to earn in such work. However, I note the hourly rates of pay nominated by Ms Meilak.[24] I consider that in relatively unskilled, part time, light work, Mr Snelson is unlikely to earn more than $18 per hour, and, for a 16-hour week, $288 per week or about $15,000 per annum. This is considerably less than 60 per cent of the income I have found he would have been capable of earning but for his injury. I do not consider it likely that further retraining or rehabilitation is likely to alter that situation.

[24]           PCB 75-6

55        There is no suggestion in the medical evidence that his condition is likely to improve. I am satisfied that such loss of earning capacity is permanent, in the sense that it likely to continue for the foreseeable future.

56        Accordingly, I am satisfied that Mr Snelson has suffered a loss of earning capacity of 40 per cent or more and is at least very considerable.

Conclusion

57        For the reasons expressed above, leave will be granted to Mr Snelson to bring proceedings for the recovery of pain and suffering and loss of earnings damages in respect of injuries suffered by him in the course of his employment on or about 22 February 2006.

58        I shall hear the parties in relation to costs.

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