Stacey v Insulation Solutions Pty Ltd

[2009] VCC 428

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08 2892

GLORIA STACEY	Plaintiff
v
INSULATION SOLUTIONS PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2009
DATE OF JUDGMENT:	4 May 2009
CASE MAY BE CITED AS:	Stacey v Insulation Solutions Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0428

REASONS FOR JUDGMENT

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Catchwords:	Accident Compensation – Serious injury application – Application of statutory test for determining loss of earning capacity – Whether the plaintiff has capacity for full-time or only part-time work – s. 134AB
Accident Compensation Act 1986

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.D. Philbrick SC, with	Maurice Blackburn
Mr G. Wicks
For the Defendant	Mr C.J. Blanden SC, with	Herbert Geer
Ms C. Boyle

HIS HONOUR:

1           Gloria Stacey injured her lower back in a workplace accident on 14 October 2004. She had worked for the defendant since about March 1995 as a process worker on the production line. Although the plaintiff had previously suffered from intermittent low back pain she was able to perform heavy manual work and lift very heavy weights in the course of her employment.

2           On 14 October 2004 whilst lifting heavy rolls of foil the plaintiff "felt sudden and severe pain" in her low back and sought immediate medical attention. The plaintiff continued on modified duties with the defendant until December 2005 when she resigned her employment and returned to her native New Zealand. Since then the plaintiff has had only occasional and irregular work. It was conceded that the plaintiff’s workplace injury had rendered her incapable of performing her pre-injury work and she would be permanently restricted in her capacity to lift and bend.

3           The plaintiff seeks leave to issue common law proceedings for damages for both loss of earning capacity and pain and suffering pursuant to s.134AB of the Accident Compensation Act 1986. She says that she has suffered a permanent serious impairment of the body function of her lower back.

4           The issues for determination in the case are:

a.	the nature of the plaintiff's injury;
b.	whether her loss of earning capacity satisfies the statutory test;
c.	whether she otherwise meets the test for "serious injury" in relation to the pain and suffering consequences of her impairment.

Nature of the Plaintiff's Injury

5           The plaintiff sought medical treatment immediately following the accident from a medical centre recommended by her employer. The plaintiff was prescribed pain relief medication and was referred for physiotherapy. X-rays and a CT scan were organised. Later she consulted her own GP, Dr Nappally, at the medical centre where she had attended for a number of years.

6           She was referred to a musculoskeletal physician, Dr Robert Gassin, whom she first saw in May 2005. Dr Gassin arranged for an MRI scan which showed degenerative changes at the L3-4 and L5-S1 facet joints of mild spondylolisthesis, spinal stenosis at L3-4 and a broad based disc herniation with a posterior high intensity zone noted at L4-5. Dr Gassin gave the plaintiff two cortisone injections in her low back in an

attempt to relieve the pain.

7           In September 2005 the plaintiff saw a neurosurgeon, Mr Chris Xenos, upon the referral of her general practitioner. Mr Xenos suggested that the plaintiff would "most

likely benefit from a formal referral to a pain management and multidisciplinary

rehabilitation clinic which specialised in chronic pain". Mr Xenos did not feel that
"surgery was of any benefit" to the plaintiff. He saw the plaintiff only once.

8           Dr Nappally referred the plaintiff to Cedar Court Rehabilitation Hospital in about October/November 2005. The plaintiff said that at Cedar Court she learned how to cope with pain and how to do certain things more efficiently; for example, dressing.

9           After the plaintiff returned to New Zealand at the end of 2005 she has been under the care of her general practitioner. In February 2006, she aggravated her back whilst burying a dog in her garden. She developed severe back pain and was taken to hospital by ambulance. She saw an orthopaedic surgeon, Mr Jeremy Everson, who referred her to a physiotherapist for an exercise program. At some stage the plaintiff received acupuncture treatment.

10         The plaintiff has consistently taken pain relief medication; firstly, Tramal, then Panadeine Forte, anti-inflammatories and for many years Codalgin (up to eight tablets a day) supplemented with codeine. Recently the plaintiff has commenced taking Amitrip to help her sleep at night despite the pain. The plaintiff sees a general practitioner, Dr Susan Tarnay, in Christchurch when she requires further prescriptions.

11         After the accident the plaintiff became depressed and required antidepressant medication and regular sessions with a psychologist. After her return to New Zealand the plaintiff's mood improved and she no longer takes Efexor. There is no issue in this case as to the organic basis of the plaintiff's pain although there is no nerve root impingement shown on the radiology and there is a suggestion by at least one examining doctor that "there is a significant degree of functional overlay associated with her low back presentation".

12         The plaintiff complained recently to an examining doctor of low back pain "present all

the time, worse on the left side ... when she stands on her left foot or with jolting,
reaching or prolonged sitting, addition of pain up the back ... occurs intermittently and
is worse when she is lifting ... left leg pain and the back from the buttock to the foot ...

is present nearly all the time".

13         There are some differences in the various diagnoses of the treating and examining doctors:

a.	Mr Anthony Buzzard, a general surgeon, who examined the plaintiff at the request of the defendant's solicitors on 8 April 2009 considered that the plaintiff had aggravated "pre-existing degenerative disease" in the low back region;
b.	Mr Peter Battlay, an orthopaedic surgeon, saw the plaintiff in May 2007 at the request of the Workers Compensation insurer. He considered that the plaintiff condition was "discogenic, mechanical, low back pain";
c.	Mr David Brownbill, a neurosurgeon, who examined the plaintiff at the request of the plaintiff's solicitors on 7 April 2009 considered the plaintiff "had long

standing, asymptomatic lumbar spine or degenerative changes which were
rendered symptomatic by the described work incident ... with likely occurrence

of L4-5 intervertabral disc derangement";

d. Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, who saw the plaintiff at the request of her solicitors on 5 March 2009 said the plaintiff had "symptomatic spondylosis [with] pain arising from the lower lumber spine ... likely to be facet joint related than discogenic".

14         These opinions cover the range of views expressed both by the treating doctors and her examiners in earlier years. Although the plaintiff had previous intermittent back pain which did not impinge on her work and recreational activities, after the accident she suffered significant and debilitating levels of pain.

Effect on the Plaintiff's Ability to Work

15 plaintiff was born on 18 May 1950 and she is now aged 58. She had worked for the
defendant for about nine and a half years at the time of the accident performing

The most significant effect on the plaintiff has been on her capacity to work. The accident employment and can only perform work with limited lifting and bending and with the need to move around and alternate between sitting and standing.

16         Before the accident, in the year to 30 June 2004, the plaintiff earned $62,977. This was agreed as her without injury earning capacity. In recent times the plaintiff has had only occasional employment and now does casual ironing and babysitting work.

It was suggested that there were a number of jobs the plaintiff has the capacity to perform. Many of these would return an income of more than 60 per cent of her pre- injury capacity, if she were able to work full-time. They include: product quality controller, forklift driver, disabled carer, patients services assistant, ticket seller, registry clerk and product assembler.

17         In a recent supplementary report Mr Buzzard expressed the opinion that the plaintiff would be "capable of working" in these occupations although for many of them he added the rider that the jobs would only be appropriate if they "did not involve heavy lifting".

18         Mr Buzzard expressed these views after considering a vocational assessment report prepared, at the request of the plaintiff's solicitors, by Ms Margaret Leitch, an occupational therapist. In the report, Ms Leitch carefully examined each of the occupations and concluded that by reason of the plaintiff's medical limitations and the demands of the particular jobs the plaintiff would be only suited for working as an ironer and as a childcare worker "for a maximum of three hours a day, three days per week".

19         Mr Buzzard expressed his conclusions without disclosing his reasoning processes. Ms Leitch's views are supported by reasoned argument and reference to the medical opinions upon which her ultimate conclusions were based. I prefer her opinions. They are generally consistent with the plaintiff's work history and the medical views as to her capacity.

20         The medical opinions expressed about the plaintiff's work capacity are as follows:

a. Dr Michael Baynes, an occupational physician, saw the plaintiff at the request of the Workers Compensation insurer in March and October 2005. Following a later examination Dr Baynes considered that "working six hours a day would

not be a long-term proposition" for the plaintiff;

b.	Mr Buzzard considered that the plaintiff was "fit for light duties with a lifting limit of, say, 15 kilograms";
c.	When Mr Xenos saw the plaintiff he noted that she "was working five hours a day on restricted duties". His view was that this was "something that will

probably need to be continued indefinitely since the likelihood of this patient

returning to normal duties with no restrictions would be most unlikely";

d.	Dr Tarnay said in a report dated 1 May 2009, "Her work capacity is very
limited as she has difficulty with any work that would involve standing, bending or twisting. Some work sitting for short periods is possible. Her long term

prognosis is for ongoing chronic pain";

e. Mr Brownbill considered that although the plaintiff had a "current work capacity" provided she avoided "heavy lifting, forced spinal mobility, repeated

bending or prolonged standing or sitting ... any such attempt at a return to work would need to be performed in a graded fashion under close medical

supervision to determine her responses";

f. Dr Thomas said that the plaintiff "would not be able to return to work which

involved bending, lifting and twisting below waist height. She has however work capacity to lift up to five kilograms between waist and shoulder height repetitively. I think the maximum tolerance that she could have would be

four hours on a five day per week basis. The work would need to be ideally

set up for her to give some flexibility to sit and stand";

g. In a subsequent report by Mr Buzzard, he said that, "In essence

Clayton Thomas' opinion is in accord with my own [although] I note that my conclusions in relation to employment capacity are a point of major difference between my opinion and that of Clayton Thomas. There is nothing to cause

me to change my opinion here".

21         Mr Buzzard however does not expressly address the question of whether the plaintiff has a current work capacity for full-time or only part-time work. I consider that it is more likely that the plaintiff has a limited work capacity. I accept the opinions of Dr Thomas and Dr Tarnay in particular. I am most influenced by the following matters:

a.	the plaintiff had an excellent work history at the time of her accident. She had performed heavy manual work for almost 10 years with the defendant. It is likely that her efforts to work after the accident generally reflected her work capacity;
b.	when the plaintiff resigned from her employment with the defendant in December 2005 she was only working four hours a day in modified duties. She had however continued working for the defendant since shortly after the accident;
c.	in New Zealand, the plaintiff obtained a number of jobs. She was unable to cope with the demands of even the part-time hours she worked;
d.	currently the plaintiff has irregular work. Although she stated she would like to work longer hours than she presently does, it is clear that her capacity is limited;
e.	the plaintiff is prescribed a significant quantity of pain medication to cope with her present level of pain. The medical reports suggest that pursuit of a range of activities would exacerbate her condition;
f.	Dr Thomas specifically addressed the plaintiff's present capacity for full-time work. Apart from Mr Buzzard, the other medical opinions supports the view that it would be unlikely the plaintiff would ever return to full-time employment;
g.	unless the plaintiff were able to work more than 80 per cent of full-time hours as a ticket seller and higher percentages in relation to the other possible occupations, in respect of which full-time work exceeds the 60 per cent threshold, the plaintiff will have satisfied the statutory test;

22         In my view there is nothing in the evidence which would support the conclusion that the plaintiff has a capacity to work 80 per cent of full-time hours at any of the occupations under consideration. The plaintiff has satisfied the statutory test for leave to bring proceedings for loss of earning capacity damages.

Pain and Suffering

23         It is now generally accepted that, as a matter of statutory interpretation, once the conclusion is reached that the plaintiff should have leave to bring proceedings for loss of earning capacity damages, that she must also have leave to bring proceedings for pain and suffering damages. This matter has not, however, been authoritatively determined and it is therefore appropriate that I should consider the matter separately and briefly state the reasons for my conclusion.

24         Defendant's senior counsel, Mr Blanden SC, submitted that the plaintiff had improved since December 2005 when she moved to New Zealand. At that time she could not stand up straight and found it difficult to walk even 150 metres. In New Zealand the plaintiff's condition has improved and she only occasionally needs to consult her general practitioner. This analysis ignores the following matters:

a.	the plaintiff has suffered severe pain in her lower back and left leg for about four and a half years. She has consistently required significant levels of prescription medication for pain relief;
b.	the plaintiff's condition is stable and it will not improve. She has undertaken all treatments offered to her or suggested by the treating and examining doctors;
c.	there are permanent restrictions on the activities she can pursue including a limited time that she can stand or sit;
d.	as well as the significant effect on the plaintiff's work capacity, activities of daily living have been affected in a major way;
e.	before the accident the plaintiff pursued a hobby of breeding, showing and selling Pekingese dogs. In October 2004 she had 17 dogs. After the accident she could no longer carry out these activities. She and her husband now have a Chow which her husband looks after;
f.	the plaintiff's husband and other family members assist with many household tasks.

25         I have not found it necessary to refer to the affidavits of the plaintiff's husband and her friend, Cheryl Jackson, in reaching these conclusions. No issues of credit were raised in relation to the plaintiff. Surveillance video taken on 7 and 8 April 2009 was

shown to the plaintiff in court. On each of these days she was required to attend a
medical examination. The video, which is not continuous, shows the plaintiff walking
around Melbourne for some hours. She walked slowly and at times with a
pronounced limp. There is video of the plaintiff taking breaks when she sat down and
rested. It is not clear what the plaintiff was doing when she was not filmed.

26         On 7 April 2009 the surveillance started at 10.38 am and continued for over five hours to 3.51 pm. On 8 April 2009 video commenced at 9.12 am and concluded at 11.18 am. The total length of the film from the two days was about one hour. There was nothing shown on the film which was inconsistent with the plaintiff's evidence.

27         In my view the evidence clearly establishes that the pain and suffering consequences to the plaintiff of the impairment to her lower back might fairly be described as "very considerable". She clearly satisfies the test of "serious injury".

28

The plaintiff will have leave to bring a proceeding for damages for both loss of earning the workplace accident on 14 October 2004.

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Certificate

I certify that these 9 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 4 May 2009.

Dated: 8 May 2009

Caroline Dawes

Associate to His Honour Judge Anderson