Thompson v Saizeriya Australia Pty Ltd
[2013] VCC 202
•4 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-12-00622
| KELLY THOMPSON | Plaintiff |
| v | |
| SAIZERIYA AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February and 1 March 2013 | |
DATE OF JUDGMENT: | 4 March 2013 | |
CASE MAY BE CITED AS: | Thompson v Saizeriya Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 202 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left arm, alternatively the right arm – disentanglement – loss of earning capacity – pain and suffering damages – severe mental or permanent severe behavioural disturbance or disorder.
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; Petkovski v Galletti [1994] 1 VR 436; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R M Middleton SC with Mr M X Carey | Slater & Gordon |
| For the Defendant | Mr A J Saunders | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of her employment with the defendant from 2003 until 2009. The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discreet heads of damage require the application of different statutory tests as mandated by s134AB(37)(38) of the Act.
2 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 left arm; alternatively, the right arm.
3 The plaintiff also relies upon clause (c), claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
4 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
5 Winneke P, in Mobilio,[4] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act was a word of stronger force than the word “serious” where used in the Act.
[4]Mobilio v Balliotis (supra)
6 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which 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. 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. Subsections 38(e) and (f) recite the formula by which loss of earning capacity is to be measured. Subsection 38(g) requires questions of rehabilitation retraining to be considered in determining whether the 40 per cent loss has been established.
9 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[5] and Jayatilake v Toyota Motor Corp Australia Limited[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6][2008] VSCA 167
10 The defendant concedes that the plaintiff has suffered an injury to both elbows throughout the course of her employment and due to the nature of employment, but says:
(a) Such physical injury or injuries have produced consequences which do not meet the threshold as set out by the Act;
(b) The plaintiff was suffering from a pre-existing psychiatric disorder which required prescriptions for medication and spasmodic times off work;
(c) Insofar as the physical injury aggravated the underlying psychiatric condition:
(i) that aggravation must be disentangled from the paragraph (a) application;
(ii) pursuant to the claim under paragraph (c), the injury must amount to a “serious injury” in its own right pursuant to the principles laid down in Petkovski v Galletti.[7]
[7][1994] 1 VR 436
11 Accordingly, it is said both claims under paragraph (a) and paragraph (c) should fail.
12 Further, in the circumstances of this case, it is incumbent upon the plaintiff to prove that she suffered a compensable physical injury to her left elbow; alternatively, the right elbow, due to the nature of her employment and further, that such physical injury or injuries either satisfy 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).[8]
[8]See Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227 at paragraph 11
Compensable Physical Injury
13 The plaintiff was born on in January 1962 and is presently aged fifty-one years. She swore an affidavit on 4 October 2011 in these proceedings, wherein she deposes that she was injured as a result of the rapid repetitive straining movements involved whilst working, in particular, on the defendant’s hamburger line, and packaging hamburgers. She swears that she used to work long hours. Her specified hours of duty were from 6.00am to 2.00pm but she frequently worked overtime. She worked on the hamburger line for a period of about three years and whilst working there, she alleges she used to pack around 400 hamburgers per minute. There were a lot of straining movements involving her hands and arms which were required in performing this work, and her elbows had to be held in a flexed position for extended periods, especially when she was working on the “teromat” machine.
14 The plaintiff was referred by her treating general practitioner Dr Ravi Chollangi, to orthopaedic surgeon, Mr Russell Miller, on 12 October 2009. He first saw her on 4 November 2009. He took a history consistent with the plaintiff’s allegations in her affidavit. On clinical examination on 4 November 2009, there was tenderness around the medial epicondyle. Provocation tests were positive for tennis elbow. Mr Miller made a diagnosis of golfer’s elbow or left medial epicondylitis. An MRI scan of the left elbow taken on 7 December 2009 confirmed the diagnosis of medial epicondylitis involving the common flexor origin with associate tendinosis. He recommended surgery for the elbow, which would include an elbow release and neurolysis on the ulnar nerve. He suggested the chances of improvement were approximately 50 to 60 per cent and it would be difficult to return to work involving repetitive activities.
15 The plaintiff underwent surgery of the left elbow on 11 February 2010 at the Freemasons Hospital. Mr Miller reported that a medial incision was made over the medial epicondyle. The ulnar nerve was identified and an ulnar nerve neurolysis was performed. The nerve was constricted in the carpal tunnel and this was released. The medial epicondyle was excised and the flexor origin was lengthened. Thereafter, Mr Miller reviewed the plaintiff on multiple further occasions, including on 8 June 2010. He reported that she had ongoing problems with diffuse ache and discomfort in the left elbow and left arm and was also having problems with her right arm. At that stage, he did not think that she would be fit to return to work in the foreseeable future.
16 Post-operatively, Mr Miller considered that the plaintiff had medial epicondylitis affecting the left and right arms. There was constriction of the ulnar nerve in the left arm. She had had surgery to the left arm with only moderate improvement following the surgery. It was too early to offer a long-term prognosis, but it was only likely to be fair. He considered that the plaintiff’s work had contributed significantly to the evolution of the disease in the right and left elbows and accounted significantly for the current clinical status. He predicted that the plaintiff would require ongoing analgesics, anti-inflammatory agents and physiotherapy and may ultimately require surgery for the right arm, but there were no such plans at that stage.
17 When Mr Miller last saw the plaintiff in 2010 he considered that she would be left with significant long-term impairment. He was hopeful of stabilisation of her injuries in perhaps six months’ time and then a determination of her work capacity could be made.
18 Thereafter, the medical treatment was supervised by the treating general practitioner, Dr Chollangi. Prior to the operation he had given her intra-articular steroid Depo injections into her left elbow. The treatment regime for the physical injury included a referral to occupational rehabilitation by Gallagher Bassett on 29 January 2010. Dr Chollangi noted that post surgery, the pain got worse and she started on strong morphine-based painkillers on 19 February 2010. After review by Mr Miller on 9 March 2010, the plaintiff had been tried on multiple analgesia and had increased the morphine-based painkillers.
19 In or about October 2009, Dr Chollangi had received a report from Dr James Rowe, who was a specialist occupational physician whose opinions I shall return to later. Treatment for the physical condition included a referral to the Melbourne Hand Rehabilitation Clinic for therapy on her swollen hands and elbows. Sunshine Pain Clinic started the plaintiff on OxyContin, 20 milligrams twice a day, and then gradually increased to a very high dose of 120 milligrams. Dr Chollangi also noted that other analgesia was required, including Lyrica. Further, he took a history that she could not attend to her personal needs like combing her hair, showering and putting on her clothes. She had much difficulty in feeding herself, cooking and preparing her food. She could not drive, as both of her hands were severely affected from her work injury. She had gained an enormous amount of weight and all of her daily living activities had been greatly affected. She was having difficulty in attending to her ability to do gardening and housework. “She started to rapidly fall apart in both her physical and mental health from her workplace injury”.[9]
[9]Exhibit C, page 57
20 In his follow-up report dated 8 February 2013, Dr Chollangi recorded that he had been trying a new medication for the plaintiff’s pain management, Targin, which was a substitute for OxyContin. He noted that the Lyrica was another analgesic for nerve pain. He felt he had been compelled to go for higher and higher doses of analgesia to give her some relief from the severe pain which she was suffering. He recorded that the pain was so severe it was causing sleepless nights and affecting her quality of life from the sedative side-effects of analgesia. He noted that her personal care was deteriorating: for example, brushing her teeth; going to the toilet; cleaning and dressing herself and putting on her shoes; feeding herself; cooking and keeping her house clean. She cannot drive and do shopping. In reality, he considered that she needed a full-time carer. In giving viva voce evidence, although conceding that there was a psychological component to her physical injury, he considered that the presentation was 90 per cent physically based.
21 The defendant has had the plaintiff examined for the physically-based injury to the left elbow by three medical practitioners, being Dr James Rowe, Dr David Barton and Mr Michael Dooley. Dr Rowe, who is a specialist occupational physician, saw the plaintiff first on 8 October 2009, which was, of course, pre-operation. At that stage, he considered the plaintiff had symptoms of bilaterally medial epicondylitis, but the left side was more pronounced than the right. He considered that there were no non-work related factors involved in this physical presentation. He further considered that the plaintiff was not exaggerating her claim and that there was no functional overlay or psychological factors present.[10] Further, he stated that the condition was an injury, not a disease, and it was not an aggravation of an underlying condition. He said it was a new injury caused by her work.
[10]Exhibit 1, page 8
22 Dr Rowe examined the plaintiff again on 20 April 2010. With respect to the surgery performed he stated:
“You can see that she had quite extensive surgery to the elbow including a nerve neurolysis and a flexor release; that is an ostectomy. However, she said she did not do well after the surgery.”
23 The current symptoms complained of were pain and swelling about both elbows but more so on the left than the right. In the right elbow she had pain in both the outer and inner aspects of the elbow and in the left more so in the inner aspect. The elbow (presumably the left) was swollen and movements were still restricted and she could not fully straighten the left elbow. There was no change in sensation about the arm or hand, but around the point of the left elbow it felt a bit different the right side.
24 At that stage, she had returned to work on light duties and was doing four hours a week in the office using a computer. Dr Rowe noted that a rehabilitation company, WorkStreams, was involved, and they were possibly looking for some alternative work for her to do. She had worked for this company for a number of years and had worked in every department, and she thought there may be some work that she could do. At that stage, he considered that the plaintiff suffered with bilateral medial epicondylitis and possibly lateral epicondylitis in the right arm as well. Her condition was not getting better in spite of the surgery performed and the extensive physiotherapy and, if anything, her left arm is now worse. In regard to the right elbow, she did have an injury there. Dr Rowe noted she has medial epicondylitis and a mild lateral epicondylitis and her employment had been a significant contributing factor to that condition as well.
25 The injury had been caused by the repetitive use of her arms over time in the course of her work. Dr Rowe considered that her pain was not well controlled and that that could be looked at by her general practitioner. He considered that she was not taking an adequate dose of Panadol. The most that she had taken was three tablets a day and she needs to take at least six Panadol Osteo a day. He thought it was possible that she might never be able to get back to her pre-injury duties and pre-injury hours. He thought that there were no psychosocial factors contributing but she was not coping with her pain very well and she might benefit from some counselling, either psychological or simple counselling. In my view, this assessment was consistent with a physically-based injury, the consequences of which had become worse after surgery which, on any view, was aptly described “quite extensive”.
26 Electing not to return to Dr Rowe, the defendant had the plaintiff assessed by Dr David Barton on 2 March 2011. Dr Barton is a consultant occupational physician. Relevantly, he took a history that the operation had no beneficial effect and that the plaintiff had attributed it to making her symptoms worse. At that stage, she was taking OxyContin, 20 milligrams twice a day, having started Lyrica, 300 milligrams at night, a few weeks earlier.
27 In his first report,[11] Dr Barton noted that the plaintiff had had a variety of conservative treatments with impressively poor results, and stated:
“She then had surgery performed on the left elbow with three procedures being undertaken. It is difficult to see how these procedures were going to resolve her symptoms and unfortunately it appears to have made her symptoms much worse.”
[11]at page 4
28 Further, he stated:
“The pattern of symptoms described points towards a Chronic Pain Disorder with a significant degree of functional overlay.”
29 He considered, at that stage, that the plaintiff had a non-specific soft-tissue injury in the upper limbs, presumably in part related to her work, and that it had been complicated by a Chronic Pain Disorder. Relevantly, he considered that at that time she could not return to any form of work. He said he related this to the Chronic Pain Disorder rather than any ongoing physical problem.
30 It would seem to clear to me that Dr Barton’s opinion is to the extent that there is a Chronic Pain Disorder causally related to the physical injury which in turn is causally related to her work, such Chronic Pain Disorder rendering her incapacitated for any form of work. I will return to this diagnosis when considering the claim under paragraph (c).
31 In a follow-up report dated 30 May 2011, Dr Barton stated that the physical problem had “physically resolved, albeit there is an ongoing psychiatric condition”. It is not clear on what basis he considered that the physical problem had “physically resolved” but, in any event, it would appear that the relevant nexus has not been broken pursuant to the principles laid down in Veljanovska v Socobell OEM Pty Ltd.[12]
[12]supra
32 The defendant then chose to have the plaintiff physically assessed by a further medical practitioner, Mr Michael Dooley, orthopaedic surgeon, on 19 June 2012. Relevantly, he also took a history that the pain had become worse after surgery. He further took a history of the high degree of analgesia and the use of a TENS machine for relief of pain. Also, relevantly, he described the condition of medial epicondylitis as being one that may be rendered symptomatic by an episode of acute trauma or repetitive trauma. He thought that given the plaintiff’s type of work, one would have to accept that the condition may have been rendered symptomatic by her work. He noted that a decision was made to proceed to surgical intervention in the form of release of the common flexor origin. It was unclear to him as to why a transposition of the ulnar nerve was performed.
33 Mr Dooley noted that the plaintiff reported worse pain post-surgery and radiation of the pain both proximally, and also distally. He thought that some of her distal pain may relate to irritation of the ulnar nerve at the elbow. Overall, however, he could not explain the constancy and intensity of her ongoing pain on the organic condition “only”. In his view, the large majority of the plaintiff’s current presentation related to a psychological reaction to injury and/or pain. It is relevant, in my view, that he had not excluded a physical basis for the ongoing condition as well and certainly had not negated the casual nexus of the work with the physical condition and ultimately the psychological condition. In any event, from an orthopaedic viewpoint, he considered the plaintiff would have difficulty carrying out heavy physical work or a lot of repetitive activity with both upper limbs. She would be capable of carrying out a range of light physical work and clerical duties. Essentially, his views did not change in the subsequent reports up to and including 28 February 2013.
Findings
34 In my view, the plaintiff has established an ongoing nexus between the physical injury and the physical consequences, such that she has satisfied the criteria laid down by the Court of Appeal in Jayatilake v Toyota Motor Corp Australia Limited. I will not recite once again all the physical consequences as set out in her affidavit and in the histories given to the doctors other than to state that on the face of it, the plaintiff is totally and permanently incapacitated as a result of those physical consequences.
Rehabilitation
35 I have already made certain references to the rehabilitation, including that attempted with her employer. Dr Chollangi also had referred the plaintiff to pain management clinics and other remedial programs, as already outlined.
36 In accordance with the above finding, it follows that the plaintiff is entitled to bring proceedings for loss of earning capacity and also according to the principles laid down in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[13] she is also entitled to commence proceedings with respect to pain and suffering.
[13][2009] VSCA 170 at paragraphs 63-64
Severe Mental Disorder
37 I have already referred to the opinions of Dr Barton with respect to incapacity for work and its connection with a Chronic Pain Syndrome.
38 The defendant in this case, by a careful and fair cross-examination of Dr Chollangi, was able to demonstrate a significant pre-existing psychological injury for which the plaintiff was receiving medical treatment and requiring limited time off work at the time of suffering of the physical injury. There is no doubt, however, that following the surgery, in particular, that the pre-existing depressive condition became worse. Dr Chollangi noted in his report of 8 February 2013,[14] that the plaintiff was now socially isolated and living alone. He had tried multiple antidepressants and the plaintiff had been seeing her psychologist, Mr Graeme Miller, and a psychiatrist, Dr Ibrahim. There was no improvement in her depression and she was now on the maximum dose of antidepressants.
[14]Exhibit C
39 The defendant had had the plaintiff examined by psychiatrist, Dr Entwisle, on 7 January 2009 with respect to a different claim. He was of the view, at that time, that the plaintiff did not present with a psychiatric condition and that there were no barriers for her to return to work. We know from the aforementioned cross-examination that the plaintiff had been on Zoloft for some years, right up until the time that she suffered the physical injury. However, it is also clear that she had substantially worked for the whole period 2003 to 2009 and that there is a dramatic change now with respect to the mental condition, such that she is significantly incapacitated as a result therefrom.
40 In my view, the before and after assessments required, pursuant to the principles of Petkovski v Galletti,[15] are quite dramatic and the plaintiff has gone from a situation of full employability to virtual total incapacity as a result of a chronic pain condition which is both physically based, as already referred to, and is also psychologically based, as per the four reports of Dr Jager tendered in evidence by the defendant.
[15]Supra
41 I will not analyse his reports in any greater detail other than to note that he considered at all material times the plaintiff had a recurrent Major Depressive Disorder which was contributed to by work if the physical condition still pertained. He considered that the musculoskeletal problem aggravated her condition. The recurrent Major Depressive Disorder was such that he believed, at best, that the plaintiff may be fit for part-time employment for three hours a day, five days a week, which totals fifteen hours per week. By 31 January 2013, he considered that she now had a Chronic Major Depressive Disorder, of which approximately one third of the condition was due to her employment injury. He considered that given the chronic nature of her condition, he doubted that the effects of the work-related injury will now cease. He considered that she currently had no capacity for pre-injury work or alternative duties given the deterioration in the last six months.
42 In conclusion, therefore, I consider that the plaintiff has suffered a mental or behavioural disturbance or disorder which has a serious consequence for her in the form of disablement from work and interference with enjoyment of life, and that she has suffered very significant pecuniary disadvantage as a consequence of that affliction. The aggregate of these considerations leads to the conclusion that the plaintiff has suffered a severe long-term behavioural disturbance or disorder within the meaning of paragraph (c) and within the meaning of the definition of serious injury when judged by comparison with other cases in the range of possible mental or behavioural disturbances.
43 Leave will be granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering and pecuniary loss in respect of injuries suffered in the course of her employment between 2003 and 2009.
Ruling as to Costs
44 I accept Counsel for the defendant’s submission that the specialist Costs Court has been vested in jurisdiction as a specialist forum to entertain costs applications and to rule thereon. I also accept that the County Court has a co-existing jurisdiction to award costs and settle Counsels’ fees in an appropriate situation. In this case, there were complicated matters of “disentanglement” that, in my view, required a prudent solicitor to retain Senior Counsel to conduct the matter.
45 Accordingly, because of the complicated matters of physical injury, psychiatric injury and their interrelationship, I am disposed to entertain the application and state that, in my opinion, it was appropriate for Senior Counsel to be retained, and I will set his fee at $5,000 inclusive of GST, together with two hours of special conferences at $550 per hour inclusive of GST.
46 With respect to Junior Counsel’s fee, fifty per cent was sought. I will order Junior Counsel’s fee at $2,750 plus two hours of conferences at $275 per hour, both inclusive of GST.
47 I will certify for preparation, filing and service of court books, the original on scale, and any necessary copies at commercial rates.
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