Thomas v Mobil Oil Australia Pty Ltd
[2013] VCC 522
•22 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-03167
| FRASER THOMAS | Plaintiff |
| v | |
| MOBIL OIL AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 15, 16 and 17 April 2013 | |
DATE OF JUDGMENT: | 22 April 2013 | |
CASE MAY BE CITED AS: | Thomas v Mobil Oil Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 522 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171
Judgment: Leave granted to the plaintiff to commence proceedings for the
recovery of pain and suffering damages only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with Mr S Martin | Slater and Gordon |
| For the Defendant | Ms R Annesley | Herbert Geer |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). The body function relied upon by the plaintiff is the function of the low back. The application seeks leave to commence proceedings for both pain and suffering damages and for loss of earning capacity.
2 Section 134AB(38)(c) states:
“an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;”
3 It is admitted by the defendant that the plaintiff suffered a compensable injury on 23 April 2007. The defendant has indicated that the issues for determination by me are firstly, whether the compensable injury and the resultant body impairment meet the test of “serious injury”, called a “range” issue. Secondly, an intervening event, which was a transport accident in late July 2007, is argued to have resulted in or materially contributed to the consequences. Thirdly, the plaintiff has retained a residual capacity for work and has failed to discharge the onus of proving that he had suffered a permanent loss of earning capacity of 40 per cent or more.[1]
[1]Section 134AB(38)(e)
The Plaintiff’s evidence
4 This forty-three year old man left school part way through Year 11 and commenced work as a labourer. He then worked as a storeman for a number of years before joining another company where he worked as a warehouse manager. He commenced employment with the plaintiff on 27 November 2000 as a plant operator but was promoted through the years to the position of fill team leader.
5 He had been in that position for some years at the time of his injury and the extensive duties required in that position are set out in the Job Profile.[2] That profile describes a considerable breadth of skills required of the plaintiff on a daily, weekly and monthly basis as well as the knowledge and experience required of him. I accept that he filled this position competently and demonstrated a capacity for all of the skills over the years prior to his being injured.
[2]Defendant’s Court Book (“DCB”) 24-27
6 The medical records indicate some low back pain in 2005. However, I find that as at the date of his being injured on 23 April 2007, he was not incapacitated in any way by any impairment of low back function. On that day, he jarred his back when he missed a step and his treatment commenced virtually straight away.
7 He was off work for a short time, but returned to work in early May 2007 and then in late July 2007 was involved in a single vehicle transport accident. The vehicle swerved at speed and then spun out into a ditch. He returned to his general practitioner and physiotherapist after this and was given one or two weeks off work.
8 On 6 September 2007, he was referred to a Mr Kavar, neurosurgeon, who eventually undertook an L4-5 micro discectomy on 22 October 2007. Following rehabilitation and conservative therapy, he recommenced work in early 2008.
9 He worked on restricted duties of one type or another with differing regimes of hours until November 2010 when he accepted retrenchment. At that time he was working 20 hours per week and his usual hours of work in a full time capacity were 35 hours although he did work extra hours to complete his duties.
10 The plaintiff has not returned to work since that retrenchment and he has been in receipt of a disability pension that is paid out pursuant to an employer insurance policy. This followed an AIA claim form which is headed “Salary Continuance Insurance”.[3] These benefits are payable at 67% of his wage to age sixty-five, the claim having been accepted by the defendant and / or its insurer.[4] In a Corporate Employer Statement dated 5 October 2010, the reason for the retrenchment is described:
“The L and S business and the Lube Plant at Yarraville are in the process of closure.”[5]
[3]Plaintiff’s Court Book (“PCB”) 51
[4]PCB 58
[5]PCB 60
11 The plaintiff has not worked since that retrenchment. Significantly, neither his first affidavit on 15 February 2012 nor the second on 5 April 2013 depose as to any attempts to obtain employment over the last two and a half years since leaving the defendant’s employ. Some oral evidence was given of other job applications but only three written applications were provided pursuant to a Notice to Produce.[6] These three were all very recent being in 2013.
[6]Exhibit 1
The Plaintiff’s medical evidence
12 In view of the repeal of s134AE of the Act, I will not summarise the medical evidence in great detail other than pointing out parts which I accept in this threshold application.
13 Generally I found the plaintiff a reliable witness and somewhat stoic in regard to his injury. However, that part of the evidence about efforts to get back into the workforce and generally rehabilitate himself was inconclusive and not persuasive in my opinion. I do not accept that he has made reasonable efforts to fully explore and exploit the residual earning capacity he has.
14 The medical practitioner, Dr Harold Lifson, has reported on a number of occasions and gave extensive viva voce evidence. He considered that the plaintiff had suffered “an acute lumbar disc injury”[7] as a result of the subject workplace accident. This opinion was given prior to the motor vehicle accident in July 2007 and I accept it. It is confirmed in an MRI scan of 26 June 2007 which states:
[7]PCB 74
“There is degenerative desiccation at L4-5 disc which is reduced in height associated with a shallow left paracentral posterior disc protrusion which indents the thecal sac and abuts the origin of the left L5 nerve root sheath.”[8]
He further noted in oral evidence the ruptured annulus[9] and the nerve impingement causing sciatica[10] occurring before the transport accident. I accept that evidence.
[8]PCB 62
[9]T92
[10]T136
15 It is worth noting that a further MRI scan conducted on 11 October 2007 after the transport accident reads in very similar terms to the earlier MRI:
“L4-5 left paracentral disc extrusion appears to compress the descending left L5 nerve root.”[11]
[11]PCB 63
16 Clinical notes contain numerous references to leg symptoms prior to the transport accident.
17 I accept that the plaintiff suffered an acute disc injury with sciatica in the workplace accident. I also accept that in the motor vehicle accident there was some aggravation of an already damaged, vulnerable disc at that level. I find that the present impairment of the lower back was suffered in the April 2007 workplace insult to the spine.
18 The general practitioner’s view about work capacity was the subject of extensive cross-examination in which he was taken through all of his clinical notes. I accept his evidence that the hours of work the plaintiff could cope with after he was injured in April has varied with at times a full-time hours’ regime being advised and at other times reduced hours.[12] There had been some fluctuation with respect to symptoms and this was reflected in the different hours that the doctor thought appropriate for the plaintiff to work over the three years from early 2008 to November 2010. I accept, however, that taking his evidence as a whole, the general practitioner was of the view that the plaintiff could work at least 20 hours per week performing the mixture of duties that was described in the Job Profile.[13] However he could probably work full time in clerical work provided he could get up and walk around in the course of the day.[14]
[12]PCB 128-129
[13]T138
[14]T117
19 Over the four days of this application the plaintiff demonstrated a capacity to sit for very lengthy periods as he did in the videos.[15] I invited him to sit or stand in the witness box as he saw fit but he did not have to change posture often if at all. The videos also demonstrated this capacity to sit for a long period and to walk briskly without obvious discomfort.
[15]Exhibit 5
20 I note in the claim form the plaintiff gives a description on 25 August 2010 of his duties. He describes[16] in percentage terms the work that required sitting 10 percent, standing 10 percent, walking 60 percent, bending 10 percent and lifting 10 percent, as reflective of his activities while performing his usual job. While he amended this slightly in oral evidence I find the majority of his duties were more clerical/administrative than physical.
[16]PCB 54
21 This is consistent with the Job Profile that describes in detail what was expected of him at work.
22 I find the plaintiff is capable of working at least 20 hours per week in normal duties out of the usual 35 hour week consistent with the doctor’s opinion when he last certified. I accept that this is a minimum position with respect to his current capacity in his old job. Moreover, I find that the plaintiff has a capacity for significantly more hours and full time work, if working in a clerical capacity where he was able to move around somewhat.
23 The plaintiff voluntarily accepted a retrenchment package[17] which he felt was “too good to be true”.[18] I do not find he left his job as a result of any impairment of his low back.
[17]T142
[18]T143
24 The general practitioner has treated the plaintiff since 1996 and knows him best of all. I am not satisfied on the general practitioner’s evidence that the plaintiff has discharged the onus of showing a permanent loss of earning capacity of 40 percent or more.
25 The treating surgeon, Mr B Kavar, neurosurgeon, reported on 27 November 2009 that the plaintiff should not be involved with:
“… work that involved heavy lifting, bending and twisting type activity.”[19]
[19]PCB 71
26 He further felt that the plaintiff:
“… should be able to return to the workforce provided he is able to strengthen his spinal musculature and avoid activities that are likely to exacerbate the problem.”
27 In this regard he was correct in that the plaintiff did return to work for close to three years through 2008 to the end of 2010. I do not find on Mr Kavar’s report that the plaintiff would be precluded from his old position provided he could avoid the heaviest parts of that work, which I have already indicated, only involved a minor percentage of the activities required of him.
28 A physiotherapy report on 23 February 2010 really completes the material from the treaters. However, that report does not assist other than describing the disc injury suffered at work with an exacerbation in the transport accident. This exacerbation is consistent with Mr Kavar’s view about the involvement of the motor vehicle accident.[20] I read both the physiotherapist and Mr Kavar as indicating the disc injury and its consequential impairment of function resulted from or were materially contributed to by[21] the workplace injury with some exacerbation from the subsequent transport accident trauma.
[20]PCB 68
[21]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
29 The first of the medico-legal opinions obtained for the plaintiff was Mr Peter Dohrmann, neurosurgeon, on 25 January 2010.
30 Mr Dohrmann, on 25 January 2010, took a history of the motor vehicle accident and the increase in low back pain that resulted.[22] His opinion was that the plaintiff suffered form quite chronic low back pain and left leg pain due to a left L4-5 disc prolapse. He does not comment on any causative link with the motor vehicle accident.[23] When he speaks of “the direct effects of the injury”[24], I read that as the work injury. I accept that evidence. In terms of work, it could be fairly said that he described the plaintiff as having light work restrictions and with respect to non-physical work he would need some breaks in standing and sitting for long periods.
[22]PCB 84
[23]PCB 86 and 87
[24]PCB 87
31 The physical restrictions he describes in the work context translate into very considerable limitations on physical recreation and sport for a man injured at 37 years of age. These are serious consequences for the plaintiff in terms of pain and suffering and enjoyment of life.
32 Mr Paul D’Urso, neurosurgeon, reported more recently on 28 September 2012. Again, he took a full history of the motor vehicle accident and the aggravation of pre-existing back pain and sciatica that it caused.[25] He makes it clear that the work injury is the cause of the plaintiff’s symptoms when he states:
“It appears likely that Fraser sustained an injury to the L4-5 disc as the result of a workplace injury on 23 April 2007. The injury is most likely a tear to the annulus at the L4-5 disc allowing a left paracentral prolapse to develop.” [26]
[25]PCB 92-93
[26]PCB 92
33 He offers no comment on any part that the motor vehicle accident has played in relation to the injury that he described and the consequences. I read that as indicative of the fact that the symptoms he accepts were the result of or materially contributed to by the workplace accident. He thought the plaintiff had a partial incapacity for work and again it could be described as a light work back with an allowance to walk and stand to avoid sitting for long periods. He puts no restriction on hours of work.
34 He thought that the plaintiff had a permanent incapacity for recreational sport and arduous domestic cleaning and gardening activity. The work restrictions also would impact on the ability to carry out many physical recreations such as, house renovation and working on cars.
35 Finally, Mr D’Urso comments unequivocally on the question of causation when he states:
“It would appear that a workplace injury was the initiating, the precipitating factor in the development of the disc prolapse and subsequent disability.”[27]
[27]PCB 93
36 Katrine Green provided a vocational assessment report on 14 February 2013 which really addresses a number of alternative employment suggestions. She reaches a conclusion that he is in effect incapable for any suitable employment within the foreseeable future.[28] I do not accept that opinion as it does not reflect in my view a proper understanding of the medical evidence in this case. Through her reference to a Medical Panel Opinion and its Reasons[29] these were admitted into evidence but they did not assist greatly.
[28]PCB 110
[29]Exhibit C
37 WorkCover certificates indicate not only variable hours due to the fluctuating back condition but different restrictions that limited him to lighter physical duties.[30]
[30]DCB 28-53
38 These certificates indicate further that the plaintiff has a partial capacity for work. I accept that full time unrestricted physical work would be beyond him. However he probably has a capacity for full time clerical / administrative work where he can change posture from time to time.
39 Accordingly, even on the plaintiff’s medical material the application fails to prove a permanent loss of earning capacity of 40 percent or more.
The Defendant’s evidence
40 The defendant’s medical material consists of a series of reports from Mr Daryl Nye, neurosurgeon, and from a radiologist, Dr Anthony Kam. Mr Nye’s opinion with respect to causation of the significant disc prolapse at L4-5 level, which he found radiologically demonstrated,[31] is best summarised as follows:
“I consider there has been a contribution to the worker’s condition consequent upon employment with Mobil and I would assess this as being significant.”[32]
[31]DCB 10
[32]DCB 13
41 He has a history of the motor vehicle accident and he gives a percentage responsibility in relation to that. However, I find on Mr Nye’s reports that the workplace accident has resulted in or materially contributed to the plaintiff’s disc injury and its consequences. He thought also the plaintiff had a permanent partial work incapacity.[33] Again, the restrictions he describes on work impact very considerably on recreational, domestic and sporting interests for this relatively young man.
[33]DCB 14
42 Dr Anthony Kam, consultant radiologist, compared the radiology reports. He formed a view that while it was not possible to determine on the radiology whether the difference between the MRI scans taken before and after the motor vehicle accident was “due to the natural progression of the 26 June 2007 process” or was due to the intervening motor vehicle accident. He felt it was more likely due to the latter. This opinion is looking purely at radiology save for two lines of history from Mr Kavar.[34] It ignores the important clinical material that the other doctors have had the opportunity of assessing. Dr Kam is reporting essentially as a radiologist and not as a clinician. I prefer the opinions of the other doctors I have referred to.
[34]PCB 63
43 I find the plaintiff still retains an earning capacity that sees his application fail to prove the requisite 40 per cent or more loss. Dealing with the medical evidence as a whole, I find that as a result of the workplace accident the plaintiff has suffered a disc injury that has led to permanent consequences flowing from the impairment of the body function of the low back.
44 Furthermore, the plaintiff has failed to discharge the onus under s134AB(38)(g) in relation to participating in retraining, rehabilitation seeking alternative employment or further or additional employment. I find the plaintiff’s evidence unsatisfactory and his attempts not reasonable.
45 He has a clear residual capacity exercised right up to the day of retrenchment. His affidavits do not refer to any efforts at all to find such work. He clearly has virtually all day between school drop off and pick up to routinely make attempts to up skill and look for work. The oral evidence of other job applications is not supported by any documentation and save for two short courses and using a computer site I find the plaintiff has not made reasonable attempts over the last two and a half years since leaving the defendant.
46 I find the pain and suffering consequences are very considerable in terms of enjoyment of life. They include the need for invasive treatment. As well, a good deal of conservative treatment and different medications including narcotic drugs at times have been required for pain over the last six years. He still needs weekly acupuncture and has done so for the last two years.[35]
[35]T176
47 A consequence for a man aged thirty-seven years of age that in my view is very considerable, is that he now has an impaired earning capacity. He must now avoid the heavier aspects of future employment. This worries him as the provider for his children.[36]
[36]PCB 17
48 I am assisted in reaching the view that the plaintiff has a residual capacity for clerical / administrative and organisational employment, with some limited physical tasks, by his work at the school.[37] This voluntary work is consistent with the broad ranging duties he more or less carried out with restricted hours at work until he took the retrenchment offer. Nevertheless, he must now accommodate this impairment and the concern it causes.
[37]Exhibit 4
49 There are other lifestyle consequences that are at least considerable. An example is the effect on his sleep. It is referred to in the clinical notes as well as the fluctuating but generally constant pain. The need to still attend acupuncture weekly for pain many years after the injury is of significance. I find what the GP said about the impact on his lifestyle amounts to consequences that are at least very considerable.[38]
[38]T133
50 I accept the plaintiff’s evidence in relation to these consequences and the extensive videos did not detract from his reliability in this regard. There was nothing I saw in the videos that was repetitive, heavy or in my view strenuous low back activity. They did confirm that the plaintiff can sit, stand and walk relatively freely and for lengthy periods of time.
51 Argument was directed to the falling off in treatment. The plaintiff’s need for active treatment has lessened considerably since leaving work in November 2010.[39] This assists in concluding that his residual capacity for less physical work than was inherent in his old job largely remains today. Providing he observes “the fence” the doctors put around strenuous activities, he can cope and with less treatment. However, the observance by him of those limits is a very considerable consequence in his domestic and recreational life away from employment.
[39]PCB 112-162
52 I accept the argument that the acceptance of the s.98C claim for permanent impairment by the defendant[40] is an admission by the defendant that I can take into account on causation. However, it is not conclusive.[41]
[40]PCB 43-50
[41]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171
53 An admission was argued in relation to the acceptance by the defendant of the disability pension. I take it into account but it is of limited weight. I do not accept that an industrial benefits scheme for injured petroleum workers outside the scheme of the Act, administered largely or in part by the intermediary AIA insurance company assists greatly. The persons involved in discussions under the policy, the contract definitions involved and the industrial relations policy considerations are extraneous to this leave application with all its various precise statutory hurdles.
54 It follows that I grant leave to the plaintiff to bring proceedings for the recovery of damages for pain and suffering. I refuse the application for leave in relation to loss of earning capacity.
55 I will hear the parties as to costs.
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