Tranter v Blue Cross Community Care Services (Ballarat)
[2010] VCC 795
•23 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-00545
| MARGHERITA SILAVANA TRANTER | Plaintiff |
| v | |
| BLUE CROSS COMMUNITY CARE SERVICES (BALLARAT) PTY LTD | First Defendant |
| (trading as KIRRALEE RESIDENTIAL AGED CARE FACILITY) | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 1 and 2 June 2010 |
| DATE OF JUDGMENT: | 23 June 2010 |
| CASE MAY BE CITED AS: | Tranter v Blue Cross Community Care Services (Ballarat) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0795 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB – neck injury – pain and suffering and pecuniary loss – plaintiff intending to increase her hours of work absent the neck injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with | Saines Lucas |
| Mr M A Nightingale | ||
| For the Defendants | Mr P D Elliott QC with | Herbert Geer |
| Mr I S Gourlay | ||
| HIS HONOUR: |
Introduction
1 By way of Originating Motion dated 11 February 2009, Margherita Silavana Tranter (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to her neck suffered by her on or about 27 July 2006 (“the injury”) arising out of or in the course of her employment with Blue Cross Community Care Services (Ballarat) Pty Ltd (trading as Kirralee Residential Aged Care Facility) (“the first defendant”).
2 The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The application was heard over two days, and the following evidence was adduced:
(a) The plaintiff and a medico-legal witness, Dr A G Capes, gave oral evidence and were cross-examined; (b) The plaintiff tendered the following evidence: (i) Certificate of Capacity dated 18 May 2010 from Dr Katherine Oliver, together with a bundle of Certificates of Capacity running from 26 July 2006 to 8 October 2008 (“Exhibit A”);
(ii) a bundle of documents containing offers of suitable employment running from 20 January 2007 to 30 July 2007 (“Exhibit B”);
(iii) payroll records for the plaintiff for the period from 31 December 2006 to 31 August 2007 (“Exhibit C”);
(iv) Employee’s Claim Form dated 2 August 2006 (“Exhibit D”);
(v) pages 5-6(a), 7-15(c), 16-29(c), 29(d), 29(e)-29(ii), 30-36(e), 37- 43(e), 44-48, 49-54(a), 55-62 and page 63 of the Plaintiff’s Court Book (“Exhibit E”);
(vi) hourly rates of pay calculations for Division 2 Nurse (“Exhibit F”).
(c) The defendants tendered the following evidence:
(i)
video taken on 13 and 24 March 2009 (15 minutes) and on 26 June and 6 July 2009 (6 minutes): (“Exhibit 1”);
(ii)
medical reports of Mr N Maartens at pages 29(j)-29(k) of the Plaintiff’s Court Book and the medical report of Dr Peter Courtney at page 29(l) of the Plaintiff’s Court Book: (“Exhibit 2”);
(iii)
pages 6-36, 37-43, 44-48, 55 and 66 of the Defendants’ Court Book: (“Exhibit 3”).
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act.
That paragraph reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function; ...”
The part of the body said to be impaired for the purposes of paragraph (a) is the neck: (see T2, L15–24).
6 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)
“the injury” suffered by her arose out of, or in the course or due to the nature of, her employment with the first defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)
“the injury” and the resulting impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)
the “consequences” to the plaintiff of the neck impairment in relation to “pain and suffering” and/or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of
possible impairments ... fairly described as being more than significant or
marked, and as being at least very considerable”: (see s.134AB(38)(b)
and (c) of the Act) (my emphasis).
The test for “serious” is sometimes referred to as the “narrative test”.
7 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:
(a)
that as at the date of hearing the plaintiff has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and
(b)
that after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii)).
8 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act); (b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]); (c) must give reasons which are extensive and complete as the court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]); (d) notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 delivered on 28 July 2009, and in particular at paragraphs [60]–[64]).
The Issues
9 Senior counsel for the defendants informed the Court that there was no issue that the plaintiff had suffered a compensable neck injury giving rise to neck impairment and physical consequences (see T30, L9-19). Senior counsel for the defendants also accepted that the plaintiff was unable to resume her pre- injury employment and informed the Court that he would not be addressing on the issue of “pain and suffering consequences”.
However, he made it plain that, on all the evidence, the plaintiff should be viewed as a part-time worker who has a residual capacity for employment, rendering her incapable of satisfying the specific burden set out in s.134AB(38) of the Act in establishing “loss of earning capacity consequences”.
The Plaintiff, her Injury and Medical Treatment
10 The plaintiff adopted her three affidavits sworn respectively on 8 October 2008 (found at page 7 of Exhibit E, which I shall refer to as “the first affidavit”), on 6 November 2009 (found at page 13 of Exhibit E, which I shall refer to as “the second affidavit”), and on 25 May 2010 (found at page 15(a) of Exhibit E, which I shall refer to as “the third affidavit”) as “true and correct”: (see T35, L2-7).
11 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
•
She is a fifty-year-old (born 19 April 1960) married woman who completed Year 10 at school.
•
On leaving school she worked in the Queen Elizabeth Home in Ballarat, during which time she attained a qualification as a Division 2 Registered Nurse, and was then employed in that capacity for seven years at the Maryborough District Hospital.
•
In about 1988, after having some time off work for children, she commenced employment with the first defendant, which was then known as the Begonia Nursing Home in Ballarat. She was employed as a Division 2 Registered Nurse on a permanent part-time basis, working three days a week for a total of between 28 and 30 hours. In 2006 she obtained a Certificate in Workplace Training.
•
The first defendant ran a high-care aged facility which, in later years, had a hundred-bed capacity. The clients of such facility were “physically and/or intellectually impaired”: (see paragraph 5).
• She describes her duties in paragraph 6 of the first affidavit as follows: “My duties involved the day-to-day care of residents. The tasks included showering, feeding, toileting, transferring and repositioning residents. I enjoyed the work, including the contact with residents and other staff.”
• In paragraph 7 of the first affidavit, she describes the onset of her injury in the following terms: “On 26 July 2006 I was working in a team, changing soiled linen from the bed of a resident in East Ward Pink. I estimate the resident was aged in his eighties. He was in bed and became very resistant towards us. I was on one side of his bed and my team member was on the other side. We were rolling the resident to change the soiled linen when he forcefully and aggressively jerked my arm. I felt immediate and sharp pain in the neck and left shoulder.”
• She reported the incident and attended her general practitioner, Dr Martin, later that day, and over the next day or so developed severe headaches. • She was off work for about six to eight weeks on account of a “painful and stiff neck and shoulder and the headaches” (see paragraph 9), and then returned on light duties and graduated hours. In particular, she describes her return to work in the following terms: “The light duties minimised having to physically handle residents. The tasks included feeding breakfast to the residents, cutting their fingernails, assisting residents with morning tea and lunch, and checking and labelling toiletries. I gradually built up to about 15 hours a week. However, I continued to suffer flare-ups of neck and shoulder pain despite being able to take breaks as required. Ongoing headaches, neck and/or shoulder flare-ups caused me to take time off work here and there. I continue receiving treatment.”
(see paragraph 9).
•
In about mid-2007 she was referred by her general practitioner to Mr Maartens on two occasions, and surgery was discussed. She was also referred to the Metropolitan Spinal Clinic, where she underwent a neurotomy in April 2008.
•
On 1 September 2007, when away from work because of her injuries, she was informed by the first defendant that there was “no more work for me”. At that time she believed that the first defendant had sold the nursing home to new owners.
•
Since 1 September 2007 she has “not looked for work”, and believes that she “would not be able to find work because of persisting severe headaches and because of my neck and left shoulder condition” (see paragraph 12).
•
She was assisted initially by a rehabilitation provider, Konekt, to try to return to some form of work, and complied with “all reasonable requests to attend and participate in occupational rehabilitation programs, vocational assessments and/or return to work plans if I was able”: (see paragraph 12).
•
WorkCover accepted liability for the injury, and paid for all treatment and various weekly payments of compensation, together with ongoing “home help”.
• “The injury” has affected her mental state. •
Since the occurrence of “the injury” she has undergone a range of treatment involving the neurotomy, physiotherapy, massage, the use of heat and ice packs, facet joint injections, painkilling and anti-inflammatory medication. She has been treated by Drs Martin and Courtney and Mr Maartens, and at the time of swearing the first affidavit was attending Dr Martin monthly, regular reviews at the Metropolitan Spinal Clinic, and taking between four and eight Panadeine daily, Mobic 15 mg daily, Zoton 30 mg daily (which she believes allows her to tolerate Mobic), undergoing weekly massage and the use of heat and ice packs: (see paragraph 15)
•
She continues to suffer headaches “at least four or five days a week”, and the headaches can last for a whole day (see paragraph 16). There is a constant ache in her head, and she suffers neck pain most of the time, although the severity of such pain varies from time to time, and at times she experiences pain in the left shoulder which can radiate down the left arm. She notes that the onset and severity of headaches can be affected by:
“Sudden or turning head movement, or when I hold the head in the same position for a long time. The presence of and severity of neck pain can be affected by activities including vacuuming, mopping, sweeping and cleaning the shower. The level of neck pain is worse in cold weather. Walking for a long time can cause the neck to seize up.”
(see paragraph 18).
• She is woken during the night because of head, neck or shoulder pain. • Before “the injury” she enjoyed working at the premises of the first defendant, was an avid gardener, frequently went on long walks, enjoyed sewing and needlework, and enjoyed socialising and going dancing. • She asserts that “the injury” has had a substantial impact on her lifestyle, and in particular states: “I have been unable to return to my normal duties and believe I cannot work in positions requiring significant use of the neck or my dominant left shoulder and arm. I cannot predict the onset of headaches as they seem to strike randomly. Although they are of variable severity, they can prevent me from engaging in physical activity. I believe that
in these circumstances I would make an unreliable employee. I am saddened by the prospect that I will never return to my chosen profession. The injury has impacted on my ability to work in the garden ... My ability to walk a distance has been affected by the injury. I now walk considerably less than I did before and I don’t derive as much enjoyment from the activity as I used to. I generally avoid needlework and sewing as these activities can increase the level of pain and bring on headaches. I have cut back on contact with family and even more so with friends ... The injury has put a strain on the marriage, including our sexual relationship ...”
(my emphasis)
(see paragraph 19).
• She was diagnosed with Parkinson’s disease in 2004, which affects the right side of her body, but which “does not impact on her usual interests and activities”: (see paragraph 20). 12 By way of her second affidavit, the plaintiff gives the following pertinent evidence:
• At paragraph 2 and following, she deposes: “At the time I was injured I usually worked three days per week (7.25 hours per shift) at ‘Kirralee’ as I had, one of my own boys still at school and I had full-time care of two grandchildren as the mother of the children was involved with drugs and I was given custody. February 2003 was when they came to live with me and my husband and they were with us until the end of 2006 when their mother resumed their custody over a period of time as her circumstances improved. The two grandchildren, now nine years and seven years of age, have been in the custody of their mother for three years now.
I would have been working full-time from the end of 2006 as my son had finished Year 12 in 2004 and without the care of the grandchildren I would have been free to work fulltime.
Full-time work is about 38 hours per week and I was capable of full- time work before I got injured. I have lost the ability to work in manual jobs and that is the only type of work I have ever been involved in.”
(my emphasis)
•
She underwent a manipulation of her neck in early 2009 at the Metropolitan Spinal Clinic, but this worsened her condition.
•
She continues to see her general practitioner monthly, who prescribes Mobic, Zoton, Panadeine Forte, Lexapro (for depression) and Stalevo and Sifrol for her Parkinson’s disease.
•
Her Parkinson’s disease has been controlled by medication now for five or six years, and it has “never stopped me working or leading a normal life”: (see paragraph 6).
•
Her “major problem” continues to be neck and left shoulder pain, radiating, and severe headaches, and although her condition has not changed much “it is better than it was initially”: (see paragraph 7).
13 By way of her third affidavit, the plaintiff gives the following pertinent evidence:
•
Her general practitioner, Dr P. Martin, retired at the end of 2009, and she has continued to see other doctors at that surgery who continue to prescribe Panadeine Forte, Mobic and Zoton (the latter is to assist with gastric upset because of the pain medication). She also continues to take the previously mentioned medication for her Parkinson’s disease.
•
She has undertaken a 10-week pain-management course at St John’s in Ballarat which did not relieve her pain, but was designed “to help me live with it”.
•
She does not spend anywhere near the time in the garden that she used to prior to her injury, but can still do some “light gardening”.
•
She loved her work performing geriatric nursing, and got “great satisfaction from helping the elderly who needed me” (see paragraph 3).
•
She had to repeat Year 10 at school, is not skilled in any clerical duties, and has no computer training, and her experience and skills have involved the care of patients who could not care for themselves.
14 Under cross-examination, the plaintiff gave the following pertinent evidence:
• She was unsure as to why she only mentioned her desire to return to full- time work in her second affidavit, but believes that she had her mind on the injury and pain: (see T37, L8-17). • In the year ending 30 June 2006 she earned $20,582 compared to $25,207 for the year ending 30 June 2005, and such reduction in the income was brought about by a reduction in hours “so that I could assist my daughter-in-law to regain custody of her children”: (see T37, L29-30). • She is left-handed, and the Parkinson’s disease is in her right hand: (see T39, L12-14). • Because she is left-handed, the tremor in her right hand does not interfere with her ability to lift things, although she does not have the same “dexterity I used to have”: (see T39, L15-17). • She returned to work after the injury at the premises of the first defendant on “light duties” and had days off “because of the pain”: (see T40, L15-20). • Queried as to whether she has sought light work since ceasing employment with the first defendant, she answered: “No, I haven’t because I don’t know from one day to the next if I’m going to be able to manage to get out of bed, much less do any light duties. I cannot pre-empt when I’m going to have a severe headache or neck ache. I don’t – I don’t know what triggers it but I just know that on a regular basis I am incapacitated.”
(see T41, L13-20).
• In respect to work as a medical receptionist, she also stated: “But if you employed me for so many hours a week, say Monday and Tuesday, you would expect me to turn up on those days. I can’t guarantee that I won’t be in too much pain to turn up. I’m too you know I don’t know from one day to the next how I’m going to be. I’m unreliable.”
(see T42, L1-8).
•
It is in the neck and it radiates up into her head, and on really “bad days” down her shoulder and arm: (see T42, L29-31).
•
When queried as to whether she would have continued working if her employment with the first defendant had not been terminated, she stated:
“I really don’t know how to answer that. I don’t know.”
(see T43, L26-28).
•
There were always shifts available to do extra, because they were always short staffed: (see T44, L7-9).
•
After the retirement of Dr Martin she has been attending Dr Katherine Oliver who prescribes Panadeine Forte, Mobic and Zoton, together with the medication for the Parkinson’s disease: (see T45, L22-31).
•
She attended a pain-management course at St John’s in Ballarat over a period of 10 weeks involving attendance two days a week from 9 to 1: (see T46, L16-22).
•
She was shown videos taken in March 2009 (15 minutes) and a second lot taken in June and July 2009 (6 minutes), and she accepted that she was the person pictured in such videos. She also accepted that the video showed her refuelling a motor vehicle at a service station, and using both hands and arms in such activity; driving a motor vehicle; walking and carrying a handbag in her left hand and transferring it to her right hand; loading bags of shopping from the trolley into the vehicle using her left hand while holding her bag in her right hand; adjusting her seat belt and reversing out when driving a vehicle; raising her hands above her head when talking to another person; carrying some plastic bags of clothing to be placed into a charity bin; meeting her father at a local hotel to have lunch; and generally driving: (see generally T49–52).
• When queried about the contents of the videos, she stated: “Well, have you videoed me on days where – where I have got restrictions? I mean, I have never said that I can’t lift things and I can’t do things, I can’t lift day to day. I have good days and bad days. In all those videos all that it showed me was doing day to day things and how bad I look on video.”
(see T52, L7–16).
• She worked full-time at the Maryborough District Hospital until 1983 when she had her first child: (T57, L8-14). • When asked whether there was any particular motivation for her to increase her hours absent the neck injury, she stated: “I enjoyed my work, I could not imagine doing anything else. My husband is reaching a point where he is looking at retiring and I wanted to ease the burden on him, because he is not a well man himself. And yes financially be a bit more secure in my retirement.”
(my emphasis)
(see T57, L29 – T58, L3).
15 In re-examination, the plaintiff gave the following pertinent evidence:
• On a good day she may take four to six Panadeine Forte, otherwise she would take eight in the 24 hours. Mobic she would take once a day, and Zoton once a day: (see T61,L25-9). 16 Dr Paul Martin was the treating general practitioner of the plaintiff until his retirement in 2009, and has supplied a series of reports running from pages 16 to 29(c) of Exhibit E.
17 The plaintiff consulted with Dr Martin on 26 July 2006, complaining of left sided neck pain as a result of pulling a patient towards her at work. She was diagnosed to be suffering a “soft tissue strain affecting the cervical spine and supraspinatus muscle” and treated with rest, analgesia and physiotherapy. He referred her to the neurosurgeon Mr N Maartens and the pain specialist Dr P Courtney.
18 Over the years, Dr Martin has continued to treat the plaintiff for pain and stiffness in her neck and radiation into her arms. In a report dated 2 January 2010, Dr Martin notes that he referred the plaintiff to the pain management clinic at the Queen Elizabeth Centre because of the “protracted nature and lack of progress in her symptomatology”:(see page 29B of Exhibit E). Furthermore, Dr Martin states:
“Her current capacity at this point of time in respect of her ADLs is a severely restricted ability to perform heavy household duties and moderate to severe inability to do medium level household duties. She is unable to do gardening except of the lightest nature, is impacted on socially due to headaches and pain.
In my opinion she will require ongoing massage and pain management by way of analgesia and a pain management program, for the near to foreseeable future. She has a chronic neck injury that will most likely impact on her for the rest of her life.
I believe she has essentially no capacity for meaningful employment as irrespective of her functional ability her pain and headache are of such frequency as to impact on all aspects of her ability to function either in a cognitively-based occupation or menial.
I believe she has no capacity to carry on for any hours of any type of employment. I feel that the Parkinson’s disease does not impact on her ability to work.”
(my emphasis)
(see page 29(b) of Exhibit E).
19 Mr N Maartens, neurosurgeon, examined the plaintiff on referral from Dr Martin some time in late May 2007, and considered that a CT scan of the neck undertaken on 15 March 2007 was “very suggestive of a large C5–6 prolapsed intervertebral disc” (see p.29(j) of Exhibit E). He arranged for the plaintiff to undergo an MRI scan on 28 May 2007 (see p.53 of Exhibit E), and in a report dated 8 June 2007 states, in part:
“The MRI scan has demonstrated a few degenerative discs – worst at C6–7 with loss of cervical lordosis due to spasm but no evidence of neural compression. She is tender over the whole cervical spine and diffusely over the mid-cervical region on the left-hand side.
There is no clear surgical target for her pain and the number of adjacent segments involved in the spondylosis would make her a poor candidate for surgery. I am arranging for her to have flexion extension views of her cervical spine to make sure there is no instability at a particular segment of which I am not aware, but failing that I am arranging for her to be referred to a pain specialist ... .”
(see page 29k of Exhibit E).
20 Mr Maartens referred the plaintiff to Dr Peter Courtney, who apparently examined her on one occasion and made a request to WorkCover for cervical facet blocks as a diagnostic procedure but the plaintiff did not return for review.
21 The neurologist Dr John King is the treating specialist for the plaintiff in relation to her Parkinson’s disease. He has supplied reports dated 5 January 2010 (see page 29(e) of Exhibit E); 27 April 2010 (see page 29(g) of Exhibit E), and 26 May 2010 (see page 29(ii) of Exhibit E).
22 In his first report, Dr King notes that he first consulted with the plaintiff on 16 August 2004, and at that time the plaintiff reported noticing a tremor involving her right hand from about January 2004. Dr King diagnosed Parkinson’s disease and commenced medication for control of the symptoms. In that report, Dr King noted that in the absence of the neck injury, she would have been able to continue to work until “more than three years after she was last seen in September 2008”, at which time the Parkinson’s disease would affect her capacity for employment.
23 When seen on 27 April 2010, he considered that she had mild residual signs of a left C6 root lesion and that she had no capacity for work due to left neck, shoulder and arm pain, as well as daily headache: (see page 29(h) of Exhibit E). Furthermore, Dr King thought, although restricted by her neck lesion, she was unrestricted by her Parkinson’s disease which was under good control with medication.
24 In his last report dated 26 May 2010 Dr King clarifies that he is of the opinion that absent the neck injury she would have been capable of working to the age of 55 years with no restriction as a result of her Parkinson’s disease: (see page 29(ii) of Exhibit E).
Medico-Legal Reports
25 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) The industrial physician, Dr A G Capes, on 13 June 2008 (see his report of the same date at page 30 of Exhibit E), 28 July 2009 (see his report of the same date at page 34 of Exhibit E) and on 9 April 2010 (see his report of the same date at page 36(a) of Exhibit E); (b) Mr Hugh Weaver, an orthopaedic surgeon, on 17 November 2008 (see his report dated 3 December 2008 at page 37 of Exhibit E) and on 13 April 2010 (see his report dated 14 April 2010 at page 43(a) of Exhibit E); (c) Mr S Schofield, orthopaedic surgeon, on 18 December 2008 (see report dated 2 January 2009 at page 44 of Exhibit E). 26 Dr Capes gave oral evidence and was cross-examined. In his evidence-in- chief, he referred to the aforesaid three reports and when asked that his reports seem to indicate “more pessimism in relation to her capacity to work”, Dr Capes stated:
“Well, I’m talking to the patient, the client, and also the clinical signs
indicated to me that there was a deterioration in her condition.”
(see T64, L2-9).
27 When initially seen on 13 June 2008, Dr Capes was of the opinion that the plaintiff had “no capacity for pre-injury employment, but has a capacity for part-time light alternative duties” (see page 32 of Exhibit E) and could work three hours a day on Monday, Wednesday and Friday (doing some computer work). When examined on 28 July 2009, Dr Capes said the plaintiff continued to have a capacity for work but then believed that she was only capable of “two hours per day, three days per week is all she could cope with”: (see page 36 of Exhibit E). When last seen on 9 April 2010, Dr Capes was of the opinion that the plaintiff had no capacity for work and this was due to “her cervical spine – shoulder problem”: (see page 36b of Exhibit E).
28 Under cross examination, Dr Capes gave the following pertinent evidence:
•
That he was a general practitioner at a clinic in Footscray for many years and now describes himself as an “industrial physician” which has no qualifying examination: (see T64, L12-23).
•
Dr Capes distinguished his opinions from that of the orthopaedic surgeon, Mr Schofield and the neurosurgeon, Dr D Nye on the basis that those doctors “never had any experience of working in industry”: (see T74, L22- 23).
•
Dr Capes supported his opinion that the plaintiff had deteriorated by reference to his examination findings and in particular over the three examinations, the change in wording from “all neck movements were restricted and painful on extreme” to “all neck movements were restricted and painful”: (see T84, L14-16).
•
On viewing Exhibit 1 (the video) and being asked whether the film showed the plaintiff performing the various activities as set out earlier in these reasons for judgment, Dr Capes stated:
“Nothing in that told me that she did not have some significant
injury to her cervical spine.”
(see T90, L5-6).
29 In his initial report, Mr Hugh Weaver opines that the plaintiff has work-related cervical pathology which would effectively prevent her returning to her pre- injury employment. At the time of his first examination, Mr Weaver stated, in relation to capacity:
“She would possibly be capable of undertaking work at a half-time level or perhaps a little beyond that level. It might be difficult for her to perform full-time work even of a light character.”
(see page 43 of Exhibit E).
30 In his second report, Mr Weaver now states:
“Unless Mrs Tranter achieves a quite substantial improvement in her condition, certainly compared with the current situation, then I would not foresee her return to work at any time in the foreseeable future. …
She would be considered theoretically capable, at best, of contemplating very light employment activities, possibly only on a part-time basis. I would naturally express little realistic expectation that Mrs Tranter is going to return to the workforce at any time.”
(see page 43d of Exhibit E).
31 In his report, Mr Schofield opines that the plaintiff suffered an “acute prolapse” as a result of the work incident. In relation to capacity, he states:
“Your client has no capacity for pre-injury employment. She probably does have a capacity for restricted duties working in a nursing home where she is familiar with the daily routine, but it would need to be of a non-physical nature.
… As stated, your client is not capable of pre-injury nursing duties or restricted nursing duties. She would only be suited to sedentary clerical work. Part-time employment, if available, would probably start at 20 hours per week.”
(my emphasis)
(see page 47 of Exhibit E).
32 The solicitors for the defendants arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) The neurosurgeon, Mr D Nye, on 18 October 2006 (see his report of the same date at page 6 of Exhibit 3); on 19 February 2007 (see report of same date at page 13 of Exhibit 3); 18 June 2007 (see report of same date at page 19 of Exhibit 3); 5 November 2008 (see report of same date at page 26 of Exhibit 3) and on 23 July 2009 (see report of same date at page 31 of Exhibit 3). Mr Nye also supplied clarification letters dated 13 November 2006 (see page 11 of Exhibit 3); 15 May 2007 (see page 17 of Exhibit 3); 24 July 2007 (see page 24 of Exhibit 3) and 17 August 2009 (see page 35 of Exhibit 3).
(b)
The general surgeon, Mr Michael Troy, on 17 January 2008: (see report dated 21 January 2008 at page 37 of Exhibit 3).
(c)
Mr Ian Jones, orthopaedic surgeon, on 31 July 2009: (see report dated 3 August 2009 at page 44 of Exhibit 3).
33 Mr Nye opines that the plaintiff has suffered an aggravation of pre-existing cervical degeneration due to the work incident and would be incapable of performing her pre-injury duties. However, he does state:
“I remain of the opinion that the worker would be capable of performing employment duties with restrictions as were in place prior to termination of employment. I consider the worker would function in the identified capacity or level of 15 hours per week. … I consider that potential occupational positions as identified in the vocational assessment of 8 October 2007 would be within the worker’s physical capacity.”
(see page 33 of Exhibit 3).
34 In his report, Mr Troy renders an AMA impairment assessment which is of little assistance to the Court in determining a serious injury application. However, it is noted that Mr Troy was of the opinion that the plaintiff had suffered an aggravation of pre-existing degeneration in her cervical spine, together with some soft tissue strain: (see page 39 of Exhibit 3).
35 In his report, Mr Ian Jones opines that the worker has also suffered an aggravation of pre-existing cervical degenerative change as a result of the work incident. In relation to work capacity, he states:
“This patient does have the capacity to undertake suitable employment. I believe that Mrs Tranter would be capable of undertaking the restricted duties at the time her employment ceased.
I read the vocational assessment report of 11.10.07. I believe that Mrs Tranter would be capable of duties described as vocational education teacher, medical receptionist and some of the duties described as registry and filing clerk. Although there is nothing specified, the lifting and carrying of heavy files may be beyond the capacity of her neck complaint … .”
Vocational Assessments
36 The solicitors for the defendants have obtained reports from Konekt Australia Pty Ltd dated 4 December 2008 (see page 55 of Exhibit 3) and from Crosslinks dated 19 August 2009 (see page 66 of Exhibit 3).
37 In the first report, the authoress, Ms Michelle Tapera, identified the following jobs said to be suitable employment for the plaintiff:
(a) Vocational education teacher (nursing, aged-care and adult education) with an expected salary of $1,214.00 gross per week; (b) Medical receptionist with an expected salary of $782.00 gross per week; (c) Enquiry and admissions clerk with an expected salary of $800.00 gross per week; (d) Registry and filing clerk with an expected salary of $730.00 gross per week. 38 At the time of assessment, the author of the report notes that the plaintiff stated:
“I am not ready to return to work, I am too unreliable because of the severe headaches and neck and shoulder aches, some days I’m good but other days I can’t function, so to an employer I am not reliable.”
(see page 59 of Exhibit 3).
39 Each of the jobs nominated by the report required no further training or qualifications on the part of the plaintiff.
40 The report from Crosslinks identified the following jobs to be suitable employment for the plaintiff:
(a)
Admissions clerk with an expected average salary of $750.00 gross per week (for workers over forty-five);
(b)
Filing or registry clerks with an expected average salary of $763.00 gross per week (for workers over forty-five);
(c)
Enquiry clerks with an expected average salary of $956.00 per week (for workers over forty-five);
(d)
Medical receptionists with an expected average salary of $753.00 gross per week (for workers over forty-five);
(e)
Vocational education teachers with an expected average salary of $1,406.00 gross per week (for workers over forty-five).
41 The solicitors for the plaintiff obtained a vocational report from Health and Safety Management Pty Ltd dated 23 July 2009: (see page 55 of Exhibit E). The author of that report, Mr Gary Cooper, was less enthusiastic in respect to her capacity to be a vocational education teacher (“unlikely she will receive assistance to manage the amount of manual handling of materials and equipment”); medical receptionist (she would be too “unreliable”); enquiry and admissions clerk (providing she found a role where she could manage her postural changes “this option would fit within her medical capacity”); and registry and filing clerk (“likely to be beyond her capacities”): see pages 59-61 of Exhibit E.
42 Ultimately, Mr Cooper was of the opinion that the plaintiff “given her symptoms” would be “unlikely … [to] … be able to obtain alternative employment”. Ultimately, Mr Cooper opines that the plaintiff would be “limited to light duties similar to those she had been performing prior to the cessation of her employment at Kirrawee” and that she is likely to be able “to perform no more than two hours per day, three days per week”: (see page 62 of Exhibit E).
Analysis of the Evidence
43 I am satisfied that the plaintiff has suffered a compensable neck injury arising out of or in the course of her employment with the first defendant on or about 27 July 2006. The nature of such injury is most probably an aggravation of pre-existing degenerative changes at various levels of her cervical spine. Although Mr Schofield suggests that the plaintiff has suffered a disc prolapse, probably at the C5-C6 level, he did not find any particular evidence of neurological deficit in relation to the neck.
44 I am also satisfied that such injury has resulted in some permanent impairment of the neck causing physical consequences which impact on the day-to-day activities of the plaintiff. Consistent with all medical opinion, I also find that the plaintiff is incapable of performing the type of work that she was performing with the first defendant prior to the injury.
45 I find that the plaintiff has discharged her onus in satisfying the narrative test in relation to the pain and suffering and loss of earning capacity consequences. As I would understand the position of the defendants, so much is not disputed.
46 The critical issue in this matter is whether the plaintiff has also discharged her onus in satisfying s.134AB(38)(e) of the Act.
47 Paragraph (e)(i) requires the plaintiff to establish that, at the date of the hearing of the application, she “has a loss of earning capacity of 40 per cent or more” measured “as set out in (f)”. The measurement of the claim in loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:
(a)
The income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).
48 In both cases the income is limited to gross income from personal exertion and is to be annualised.
49 Paragraph (e)(ii) requires the plaintiff to establish that she will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more”.
50 The first inquiry involves a determination as to what are the plaintiff’s “without injury earnings”. I have been assisted by the decision of Acir v Frosster Pty Ltd [2009] VSC 454, a decision of Forrest J, where at paragraphs 158 to 179, His Honour discusses the concept of “without injury earnings”. Forrest J accepted, consistent with the Second Reading Speech, that:
“In respect of the three years after the injury, the earnings and/or capacity for earnings but for the injury will enable the court to have regard to the probable increases or decreases in earnings that may have occurred or the achievement of other employment opportunities within that time had the injury not occurred. …”
51 Prior to her injury, the plaintiff had the following gross earnings:
Year Ending Gross Income 30 June 2004 $26,573.00 30 June 2005 $25,277.00 30 June 2006 $20,582.00
52 The reduction from the year ending 30 June 2005 to the year ending 30 June 2006 was explained by the plaintiff being off work caring for her two grandchildren.
53 Counsel for the defendants submitted that “without injury earnings” of the plaintiff should be based on her part-time employment, working 28 to 30 hours a week. Against this, counsel for the plaintiff submitted that absent the neck injury, the plaintiff would have commenced to perform full-time work at the end of 2006, as at that time her youngest son had completed Year 12 in 2004 and she had no longer the care of her grandchildren who had been returned to her daughter-in-law.
54 After considering all of the evidence, I accept the sworn evidence of the plaintiff that she would have increased her hours to full-time work absent the neck injury and after her two grandchildren had been returned to their mother. I do so for the following reasons:
(a) I found the plaintiff to be generally a witness of truth and she has given sworn evidence of such facts. Although she was cross-examined as to why such assertions were only made in her second affidavit, rather than her first, I have come to the view that ultimately this does not diminish the value of her sworn evidence. (b) In general terms, it is relevant to take account that the plaintiff had not worked full-time since 1983 (when she commenced her family) and also the diagnosis of Parkinson’s disease in 2004 which according to her treating neurologist, will probably impact on her working capacity when she reaches the age of fifty-five. Such circumstances may in some women hasten their departure from employment rather than increase it. (c) However, I found the evidence of the plaintiff quite compelling in relation to her reasons to increase her hours of employment (to assist her husband who is also not in good health and may well retire soon and also seeking some security for the future).
(d) I consider it particularly relevant that she loved her work and could not imagine doing anything else and also, according to the plaintiff, extra shifts were available as the first defendant was always short staffed. 55 I refer to Exhibit F, which sets out the hourly rates of pay calculations for a Division 2 Nurse and note that as at 25 March 2007 (within the three years post-injury) the hourly rates of Division 2 Nurses increased to $19.68 per hour. On the assumption that the plaintiff was performing five shifts from the end of 2006, her gross annual earnings would be $37.700.00, and accordingly, I find that the “without injury earnings” would be $37,700.00. Sixty per cent of the “without injury earnings” is $22,620.00.
56 The second inquiry I have to determine is what the plaintiff “is earning or is capable of earning in suitable employment”. “Suitable employment” is defined in s.5(1) of the Act and reads:
“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following:
(a) the nature of the worker’s incapacity and pre-injury employment; (b) the worker’s age, education, skills and work experience; (c) the worker’s place of residence; (d) the details given in medical information including the medical certificate supplied by the worker; (e) the worker’s return to work plan if any; (f) if any occupational rehabilitation service have been provided to or for the worker.”
57 There is quite a vast array of medical opinions as to what capacity the plaintiff may have for suitable employment. The general practitioner, the industrial physician, Dr Capes, and probably the orthopaedic surgeon, Mr Weaver, are of the view that the plaintiff has little or no capacity for any type of work. Against that, the orthopaedic surgeon, Mr Schofield, and the neurosurgeon, Mr Nye, both consider that the plaintiff has the capacity to resume employment in alternative work such as, for example, a medical receptionist commencing somewhere in the order of 15 to 20 hours per week with a prospect of increasing such hours. The orthopaedic surgeon, Mr Jones, is of the opinion that the plaintiff could function at a level of about 15 hours per week as she was performing prior to her cessation of employment in 2007.
58 I tend to the view that it is probable, although not certain, that the views expressed by Mr Jones, Mr Nye and perhaps Mr Schofield are predicated to some extent on the assumption that the plaintiff was coping with her alternative duties with the first defendant after returning to work up until being terminated on or about 1 September 2007.
59 I refer to Exhibit C, which sets out the payroll records of the plaintiff for the period from 31 December 2006 to 31 August 2007 and over that period of time, it was put to me that the records indicated that she was only working on average 6 hours per week, with other times off because of her ongoing neck symptoms. A perusal of such records would suggest that the plaintiff lost a reasonable amount of time off work presumably because of her neck problem.
60 I do give some weight to the opinion of the general practitioner who has been the treating doctor up until his recent retirement. As I have already noted, I found the plaintiff to be a witness of truth and I place some weight on what she says are her symptoms, the need for medication and her inability to be reliable in any activity that she undertakes, including work duties. In passing, I do not put much weight on the evidence of Dr Capes who I found on occasion to be virtually an advocate for the plaintiff and not particularly compelling as to why he saw a deterioration in the plaintiff over his various consultations.
61 Taking into account the industrial background of the plaintiff, her presentation to me (including the video) and the various medical opinions, I find that the plaintiff is fit for some suitable employment and would have the capacity to perform work such as a medical receptionist up to 15 hours per week. She may be capable of performing work as an enquiry and admissions clerk or a registry and filing clerk for a similar number of hours, but I consider it unlikely that she would be capable of performing work as a vocational education teacher given the contents of the vocational report from Mr Cooper. Even if one took the largest wage of $956.00 for an enquiry clerk, the annualised amount for 15 hours’ work per week would be $19,623.00 (that is $956.00 divided by 38 hours multiplied by 15 hours and multiplied by 52 weeks). Accordingly, such a sum is less than 60 per cent of the “without injury earnings”.
62 Accordingly, I am persuaded that the plaintiff has discharged her onus pursuant to s.134AB(38)(e)(ii) of the Act in that she has a loss of earning capacity of 40 per cent or more as at this date. Furthermore, I am of the opinion on the available medical evidence that the plaintiff will, after the date of this decision, continue “permanently” to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more.
Conclusions
63 Pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of “pain and suffering” and “pecuniary loss” in respect of a neck injury suffered on or about 27 July 2006.
64 I will hear the parties on the question of costs.
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