Tesanovic v Blue Collar Handling Pty Limited
[2013] VCC 203
•6 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05404
| BOZICA TESANOVIC | Plaintiff |
| v | |
| BLUE COLLAR HANDLING PTY LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2013 | |
DATE OF JUDGMENT: | 6 March 2013 | |
CASE MAY BE CITED AS: | Tesanovic v Blue Collar Handling Pty Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 203 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – back injury – loss of earning capacity – pain and suffering damages.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted for pain and suffering damages and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Zaparas Lawyers |
| For the Defendant | Mr S Loftus | Wisewould Mahony |
HIS HONOUR:
1 This is an application to bring proceedings for damages pursuant to s134AB(16(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of her employment with the defendant on or about 7 September 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity; these discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application first pursuant to clause (a) of the definition of serious injury, to be found in s134AB(37) of the Act. There “serious” is defined relevantly as meaning “a permanent serious impairment or loss of a body function”. The body function relied upon in this application is the lumbar spine.
4 The plaintiff also relies upon clause (c), claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”.[3]
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
[3]Mobilio v Balliotis [1998] 3 VR 833 at 846
6 The plaintiff relied upon two affidavits and gave viva voce evidence, she was cross-examined. Also, the plaintiff’s treating general practitioner, Dr Peter Andrianakis was cross-examined. In addition, both parties relied on medical reports and other material that was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
7 The impairment of a body function must be permanent in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity. By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of the hearing as being more significant than marked and as being at least very considerable.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsection (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured. Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] in reaching my conclusions.
[4](2005) 14 VR 622
12 The defendant concedes the plaintiff suffered an injury on 7 September 2009 but does not concede that such injury meets the requirements of subparagraphs (a) or (c) of the definition of “serious injury” referred to above. Further, in the circumstances of this case, it is incumbent upon the plaintiff to prove that she suffered a compensable physical injury to her lumbar spine on 7 September 2009, and further, that such physical injury either satisfies the requirements of paragraph (a) at the time of hearing or that such compensable physical injury was the cause of a Chronic Pain Syndrome or Adjustment Disorder which satisfies the requirements of paragraph (c).[5]
[5]See Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227 at paragraph 11
Compensable Physical Injury
13 The plaintiff is now aged nearly fifty-two years and she commenced employment with the defendant in approximately 2008 and continued until approximately 2010. She worked for the defendant cleaning domestic and international-use aircraft for Qantas. She worked on a varying weekly roster, including weekends. She was permanent part-time, working an average of about 25 to 30 hours a week, for which she received an average wage of approximately $600 gross per week. She continued to do occasional work for her husband in his employment business until approximately 2009. After suffering her injury, she returned to work on light duties for a limited period, working two hours a day for three days. She later attempted three hours per day but on her evidence, could not manage the increase.
14 On 7 September 2009, in the course of her employment, she was collecting recyclable paper from an aircraft when she developed back pain lifting and moving full bags weighing approximately 20 kilograms each. On the next day, she saw the Qantas doctor in the Qantas terminal, being one Dr Brown. Dr Brown reported on 21 March 2010[6] as follows:
“She gave a history that there was an acute lifting injury at work the previous day and she felt a very sharp pain. On examination there was tenderness from the lower thoracic spine down to S1, in particular from the L4 to S1 disc. Straight leg raising was equal on both sides up to 65 degrees where there was some limitation because of lower back pain.”
[6]Exhibit D
15 Dr Brown considered on that occasion that, because of the central tenderness over the spine, there was a possibility of a vertebral disc irritation. Treatment was commenced with rest and she was started on anti-inflammatory medication as well as pain relief, including Voltaren and Panadol. She was reviewed again on 11 September 2009 and remained on light duties. A plain x-ray was ordered, which, according to Dr Brown, showed mild degenerative spondylosis of the lumbar spine. There was also slight disc space narrowing at L4-5, suggestive of a disc bulge or a prolapse. There was also some mild bilateral L5-S1 facet joint arthritis. He reported that at some stage there were no light duties available and the plaintiff was in effect resting at home and, “concentrating fully on the rehabilitation program”.
16 Dr Brown arranged for a CT scan to be carried out on 24 September 2009. He reports it indicated a left paracentral disc bulge at L4-5, causing some spinal canal stenosis and probably indenting the descending left L-5 nerve. He reports that, unfortunately, over the next number of reviews, the plaintiff was not improving. She continued to have a central ache in the L4-S1 part of the lower back.
17 Dr Brown records that an MRI scan of the lumbar spine was performed on 12 November 2009. He states:
“This found that there was a small L4-5 left paracentral and posterolateral disc protrusion abutting the exiting L-4 nerve within the foramen and causing some minimal distortion to the left L-5 nerve root sheath, origin at the subarticular recess level. Again, this MRI finding confirmed that there was an L4-5 disc injury.”
18 Dr Brown’s diagnosis thereafter changed to:
“L4-5 disc protrusion with right-sided lumbar back strain.”
19 He considered the disc injury was likely caused on the reported day, which finding is not in dispute in this proceeding.
20 Dr Brown continued to treat the plaintiff until approximately February 2010 when she was handed over to her own general practitioner, Dr Peter Andrianakis. The reason given was that Dr Brown's practice was about to close. His prognosis at that stage was that:
“Disc injuries can take many months to heal and sometimes cause permanent ongoing symptoms which means that sufferers need to change activities in their life to not cause any aggravation.”
21 At that stage, Dr Brown further stated:
“She has had extensive rehabilitation treatment and should continue with this. She has remained motivated and attended all of these rehabilitation appointments. Focus continues around physiotherapy, strengthening as well as the strength training program and her medications are appropriate.”
22 His prognosis at that stage was hopeful. He further predicted that if the plaintiff continued to not improve, the disc injury may require long-term restrictions to her work which would mean she would have to look at alternate duties and not be able to return to her pre-injury employment.
Compensable Physical Injury
23 The plaintiff was referred to Professor Richard Bittar, neurosurgeon and spinal surgeon, who reported to the treating general practitioner on 9 January 2012. He obtained a relevant history of the occurrence of the injury and thereafter, treatment by way of referral to the orthopaedic surgeon, Mr Brian Barrett, who recommended conservative treatment, and also the pain specialist, Dr Clayton Thomas, who in turn referred the plaintiff to Dr Andrew Muir, a pain specialist, who performed L3-L5 medial branch blocks in January of 2010. As at 2012, Professor Bittar recorded that the current treatment comprised a rehabilitation program at Dorset Rehabilitation in Pascoe Vale and the plaintiff was taking medications, including Panadol Osteo, Prodeine and Tramadol. He reviewed a CT scan of the lumbosacral spine performed on 24 September 2009 which had suggested a left-sided disc bulge.
24 In a follow-up report to the plaintiff's solicitors dated 7 July 2012, Professor Bittar took a consistent history, and then examined the plaintiff. He found that there was bilateral paravertebral tenderness over the lower lumbar and lumbosacral area; there was limited lumbar flexion; straight leg raising was normal bilaterally. He reviewed an MRI scan of the lumbosacral spine performed on 23 January 2012. He recorded:
“This demonstrated disc bulging at L4-5 and L5-S1 with a left-sided annular tear at L4-5.”
25 Professor Bittar’s opinion was that the plaintiff was suffering from aggravation of lumbar spondylosis. He considered it was most likely she had sustained an injury to the lumbar intervertebral discs, particularly at L4-5. In his opinion, her employment had been a significant contributing factor and remains so, to her ongoing pain, disability and requirement for treatment. In his opinion, she was totally incapacitated for employment and that this capacity was permanent. This opinion was corroborated by the treating general practitioner, Dr Andrianakis, who was cross-examined in this proceeding.
26 This opinion was also corroborated by Professor Mark Cook, neurologist, in his report of 1 September 2012.[7] After taking a history and examining the patient, his diagnosis was one of degenerative lumbar spine disease with probable bilateral radiculopathy. He considered the condition was consistent with the stated cause (that is, the work injury) and there is likely to be acceleration of pre-existing background degenerative lumbar spine disease. He considered she was not currently fit to work in either her pre-injury employment or alternate duties given poor English language skills, the nature of her primary complaint and the lack of suitable training. He thought she would require ongoing management with her pain specialist with medications and physiotherapy. Surgical intervention seemed to him unlikely.
[7]Exhibit L
27 In contrast to these opinions, the defendant had the plaintiff examined by three physicians or surgeons, being Mr Peter Kudelka, on 7 May 2010, 14 February 2011 and 9 May 2011; Associate Professor Graeme Brazenor, on 19 October 2011 and 9 November 2012, and occupational physician, Dr David Ho, on 4 November 2011 and 13 November 2012.
28 Orthopaedic surgeon, Mr Peter Kudelka, on his first examination, took a relevant history and examined reports of x-ray dated 17 September 2009, CT scan dated 24 September 2010 and MRI scan of the lumbar spine dated 12 November 2009. After conducting an examination, his opinion was that the plaintiff was suffering from backache and right leg pain due to a lower lumbar disc abnormality and some irritation of the right sciatic nerve root. He considered it was related to the work incident. He further thought the plaintiff would not be able to return in her pre-injury duties in the future. He thought that she could return to modified or alternative employment with certain restrictions and he noted an offer of suitable duties, which offer is not in evidence in this proceeding. With respect to her condition, he considered that there was a significant degenerative component to her condition and that the employment remained a material contributing factor in the form of aggravation. The prognosis at that stage was guarded and the plaintiff would probably have to continue with modified or alternative duties indefinitely.
29 When reviewing the plaintiff on 10 February 2011, Mr Kudelka noted that she had tried to return to work for six weeks in the office until it closed. She was happy doing this sort of work, avoiding any strains on her back, which was still very painful. She was taking Panadeine Forte and Panadol Osteo. She had also seen Dr Clayton Thomas for rehabilitation, which had not helped her. At page 3 of his report, he noted that he had read the three-month progress report dated 4 November 2010, which noted that there were no alternative roles within the company, and suggested further assessments. It was his opinion, at that stage, that the plaintiff had significant degenerative changes in the lumbar spine, which had been aggravated by the nature of her work. He thought the effects of the aggravation would gradually resolve but they were only incompletely resolved at that stage. He suggested another review in six months' time. He did note, however, that the plaintiff, who was now fifty years of age, would not completely recover lumbar spinal function.
30 In a report dated 9 May 2011, Mr Kudelka stated he had read the offer of suitable employment plan number two, which he regarded as suitable. I again note that this offer was not in evidence before me.
31 Mr Kudelka last examined the plaintiff on 20 September 2011. Symptoms were then still aching and stiffness in the back. She was taking Panadeine Osteo, Tramadol and Codeine 50. He referred to an “NES vocational assessment report” dated 7 June 2011 which suggested certain alternative employments. Once again, I note that this vocational assessment report is not in evidence before me. Mr Kudelka thought that the plaintiff would be able to undertake activities of daily living but would be unlikely to attempt to return to work if palliative and symptomatic treatment ceased. He thought that Mr Brian Barrett may suggest spinal surgery, as two years of conservative treatment had failed. He considered that the aggravated degenerative changes at L4-5 and L5-S1 due to her injuries on 7 September 2009 had not resolved. He considered that on the history given, the incident of 7 September 2009 was responsible for her symptoms and he did not think that she could return to work in her pre-injury duties and hours because of the persistence of those symptoms. He did not think that she could do her previous work as a cleaner, even in a modified way or part-time. Theoretically, alternative duties in an office would be suitable if such work was made available; however, he conceded the plaintiff “has limited qualifications for such work”. Finally, he stated:
“I believe effectively that the patient has no current work capacity when one considers the intensive pain and its failure to respond to appropriate conservative treatment and her lack of background experience and education in office, clerical or similar duties.”[8]
[8]Exhibit 2, page 3
32 Thereafter, the defendant had the plaintiff examined by Associate Professor Graeme Brazenor on 19 October 2011. He took a similar history as to the onset of the injury. He noted the report of the MRI scan dated 12 November 2009 to the effect that “there was a small L4-5 left paracentral posterolateral disc protrusion” et cetera. He took a history from the plaintiff that she considered her condition was getting worse. At that stage, she was on the waiting list to be accepted for a course of rehabilitation at Dorset Rehabilitation in Pascoe Vale. Treatment for the pain included regular Panadol Osteo and Tramadol. He noted inconsistencies at examination and recorded:
“At the end of supine examination I sat her up easily to 90 per cent of lumbosacral flexion on the couch. It appeared to cause her no more than very mild discomfort in so doing. She did not even grimace. This was, I thought, incongruous with her alleged limitation to 30 degrees of flexion when standing.”
33 Professor Brazenor considered that the CT scan of 17 September 2009 “probably does signify disc injury or degeneration (or both)”. He considered she had suffered “a diffuse injury to the left posterior quadrant of the disc annulus”.[9] Professor Brazenor specifically recommended that a repeat MRI scan be performed so that it could be compared with the contemporary one and stated:
“Any worsening or conversely improvement in the annulus deformation at L4-5 will be highly significant in determining my final opinion on this lady.”
[9]Exhibit 4, page 6
34 Professor Brazenor next examined the plaintiff on 9 November 2012. Before I turn to that examination, I should note that Dr Andrianakis recorded in August of 2012 that the plaintiff had complained about an alleged perfunctory examination by Professor Brazenor on the first occasion. When examining the plaintiff on the second occasion, Professor Brazenor noted the absence of certain documents, to wit:
(a) a report from Professor Mark Cook dated 1 September 2012; and
(b) the report of the MRI scan dated 1 September 2012.
35 It would appear that, despite him noting same, that MRI was not forwarded to him on a later occasion. He took a history from the plaintiff that her condition was worsening. Instead of calling for the first MRI, Professor Brazenor decided to compare the CT scan of 17 September 2009 with the MRI scan of 23 January 2012 and opined:
“It is very significant that there has been absolutely no change in this abnormality over a more than two-year period.”
36 Further, he stated:
“The fact that the radiological lesion has neither improved nor deteriorated in the period 17 September 2009 until 23 January 2012, it is strong evidence that it was not an injury incurred just before the scan of 2009. Had it been so, it would have most likely either improved or deteriorated since then.”
37 Further he states:
“If we add to this anomaly the fact that this lady's allegation of pain and disability and her alleged deficits on examination are actually getting worse rather than better, one must conclude that something other than a bona fide injury to a lumbar anatomical structure is the main generator of Mrs Tesanovic's complaints.”
38 Given the treating neurosurgeon's opinion of the description of the injury and its consequences leading to total incapacity for work based on, inter alia, an annular tear at L4-5, the point was put squarely to the treating general practitioner, Dr Andrianakis, who, when comparing the two MRI scans dated 12 November 2009 and 23 January 2012, noted specifically that the second MRI noted:
“A broad-based disc bulge at L4-5 associated with a left posterolateral annulus tear. There was also flattening of the ventral theca.”
39 In his opinion, both findings were absent from the first MRI, such that there had been “progress” in the condition, to the effect that it had deteriorated, not improved. Accordingly, I am disposed to prefer the opinion of Professor Richard Bittar, neurosurgeon, to that of Associate Professor Graeme Brazenor, neurosurgeon, in this regard.
40 Finally, the defendant had the plaintiff examined by Dr David Ho on 4 November 2011.[10] He was in possession of the CT scan of 24 September 2009 which had recorded the “probable indenting the descending left L-5 nerve”. He was also in receipt of the MRI scan of the lumbar spine dated 12 November 2009, which had noted the “small L4-5 left paracentral/posterolateral disc protrusion abutting the exiting L-4 nerve of the foramen” et cetera. He also reported inconsistencies in examination based on, essentially, restrictions in flexion compared with an ability to sit at 90 degrees on the couch. I note that Professor Bittar recorded no restrictions in straight leg raising but was not disposed to find this a disqualifying finding. In any event, Dr Ho recorded:
“From the history I believe (the plaintiff) a 51-year-old part-time cabin cleaner had most likely caused or aggravated an intervertebral disc injury in her lower back when allegedly picking up papers and pulling a bag of papers whilst cleaning a domestic plane at work in early September 2009.”
[10]Exhibit 5
41 Further, he records:
“The CT scan of her lumbar spine had revealed a left paracentral disc bulge at L4-5, probably indenting the descending L-5 nerve. This was confirmed with the MRI of the lumbar spine, which also revealed a small L4-5 left paracentral posterolateral disc protrusion abutting the exiting L-4 nerve with some minimal distortion to the left L-5 nerve sheath origin at the subarticular recess level.”[11]
[11]Exhibit 4, page 7
42 When examining the plaintiff on the second occasion, being 13 November 2012, Dr Ho recorded:
“I reviewed the MRI of her lumbar spine dated 23 January 2012. At L4-5 there was a reduced disc height and signal and the broad-based disc bulge is associated with a left posterolateral annular tear. There is flattening of the ventral theca. No foraminal narrowing or neural compression.”
43 On examination, he recorded some discrepancies; for example, he noted that she sat with an erect posture without any obvious discomfort, however, in comparison, he noted that she asked for help to sit up from the examination couch, which was corroborated by the plaintiff in viva voce evidence. In any event, he made no attempt to compare the apparent discrepancies between the two MRI scans and the opinions from the plaintiff's practitioners, that it represents a worsening of the plaintiff's condition. His ultimate opinion was:
“After the last examination, I believe the plaintiff had recovered well from her likely intervertebral disc strain in her lower back sustained in September 2009.”
44 He believed, further, that there were non-physical factors or psychosocial factors contributing to the plaintiff’s ongoing symptoms and perception of incapacity. He thought that on this occasion there was voluntary limitation of movement in her lower back, with evidence of exaggeration of her pain on examination. Overall, he thought that she had recovered well in the last three years from the physical injury. The defendant relies on this evidence, together with that of Professor Brazenor, to the effect that the plaintiff has not disentangled the psychological consequences that are existing with respect to the physical injury.
45 In my view, the physical consequences complained of are commensurate with the injury attested to by Professor Bittar and others, which, on the balance of probabilities, I find to exist. Accordingly, it would not be surprising if some psychological reaction would also occur in reaction to those physical injuries according to the principles laid down in Jayatilake v Toyota Motor Corp Australia Limited.[12] I consider that this is not a mere soft-tissue strain but a discal injury, the effects of which are worsening on clinical and radiological evidence, such that the plaintiff is significantly disabled in the manner that she describes. In addition, I find the plaintiff to be an honest historian who did her best at all times, in my view, to tell the truth when being cross-examined at length. I accept her evidence that she was not able to work, by increasing her hours from two hours to three hours per day doing light clerical duties in her return to work and, accordingly, that situation is likely to have persisted to the present time, such that it satisfies the requirements of permanency. In fact, the injury, in my view, is deteriorating.
[12][2008] VSCA 167
46 Accordingly, leave will be granted to the plaintiff to issue proceedings for economic loss for the injury claimed and upon the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle.[13] Leave will also be granted to issue proceedings for pain and suffering.
[13][2009] VSCA 170
47 If I was wrong in my analysis of the plaintiff's loss of earning capacity, the principles of Haden Engineering Pty Ltd v McKinnon[14] would lead to the conclusion that the plaintiff, based on extensive treatment, and loss of sleep as set out in her affidavit, had suffered consequences which would be serious with respect to pain and suffering.
[14](2010) 31 VR 1
48 For the sake of completeness, the claim under paragraph (c) was relied upon by the plaintiff. The treating psychologist, Mr George Tsironis,[15] whilst diagnosing a Chronic Adjustment Disorder with Mixed Anxiety and Depression, noted:
“[The plaintiff] seems genuinely traumatised by her predicament. I see no evidence of exaggeration or malingering. In my opinion she is an honest person who appears to be genuine in her attempts to get well physically, emotionally and psychologically. [The plaintiff] always spoke and behaved appropriately during the sessions. Her memory appeared intact and in spite of her depression, her thought processes were clear. There was no evidence of personality disorder or loss of contact with reality.”[16]
[15]Exhibit E
[16]Exhibit E, page 61
49 With respect, my impression of the plaintiff in the witness box was in accordance with these findings and, suffice to say, I do not believe that the threshold of severe mental disorder has been met in this case.
50 Leave will be granted for the plaintiff to bring proceedings for pain and suffering and in relation to loss of earning capacity with respect to injury suffered in the course of her employment on or about 7 September 2009.
51 I will hear the parties with respect to any consequential orders.
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