Velic v Alfred Health
[2012] VCC 345
•27 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00593
| SAFIJA VELIC | Plaintiff |
| v | |
| ALFRED HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 February 2012 | |
DATE OF JUDGMENT: | 27 February 2012 | |
CASE MAY BE CITED AS: | Velic v Alfred Health | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 345 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious Injury
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Mr R Dyer | Thomsons Lawyers |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence an action claiming damages for the pain and suffering and pecuniary loss consequences of an injury sustained by her in the course of her employment with the defendant .
2 In the application the parties rely upon the following material:
(1) An affidavit sworn by the plaintiff dated 18 October 2010;
(2) Viva voce evidence given by the plaintiff in the course of the proceeding;
(3) Medical reports, radiological material and vocational evidence contained in reports tendered by them.
The Issues
3 It was put on behalf of the defendant:
(i)that the plaintiff has not mitigated her loss by refusing to undertake the treatment suggested by Dr Thomas by way of a nerve block;
(ii)that the evidence does not establish whether the plaintiff’s present symptoms stem from the presence of an organic injury or from a chronic pain syndrome being a non organic “complex physical and psychological interaction in response to injury and/or pain;[1]
(iii)that the plaintiff retains the capacity to earn an income in excess of 60 per cent of her pre-injury earning capacity as that term is employed by the provisions of the Accident Compensation Act 1985 as amended (“the Act”);
(iv)the plaintiff’s attitude towards seeking work was poor;
(v)that whilst the plaintiff has an obligation to establish on the balance of probabilities her entitlement to an order authorising her to commence a proceeding claiming damages for the pain and suffering consequences of her injury “the plaintiff’s application with respect to pain and suffering consequences is one in respect of which there is no strong contrary submission made”.[2]
[1]Paragraph 15 of the submissions on behalf of the defendant dated 15 February 2012
[2]Paragraph 22 of the submissions on behalf of the defendant made 15 February 2012
The Plaintiff’s Affidavit Evidence
4 In her affidavit of 18 October 2010, the plaintiff said:
· She was born on 19 January 1959 in Bosnia and migrated as a refugee to Australia in 1994, fleeing the Bosnia war. On arriving in Australia, she commenced studying English and then undertook a diploma in Welfare at the Holmesglen TAFE from which she graduated in 2001. The plaintiff said that in 2008, she qualified as a social worker and obtained employment in that capacity with the defendant on 8 October 2008.
· Having sustained her injury, she consulted her general practitioner, Dr MacAulay, who referred her for a CT scan. She was subsequently referred by Dr MacAulay to Mr Brian Barrett, orthopaedic surgeon, who in turn referred her for an MRI scan. The plaintiff said that she discussed the results of the scan with Mr Barrett and that; whilst she was experiencing back pain and referred pain into her right leg at that time; Mr Barrett advised her that were she to undergo surgery, the effect of that surgery would most likely impact upon the presence of leg pain and not back pain; and that by reason of the fact that her back was her primary problem at that time, “I thought that surgery was not likely to offer me very much”.
· In October 2009, Mr Barrett referred the plaintiff to Helen Sutcliffe who prescribed Lyrica for pain management and referred the plaintiff to an orthopaedic surgeon, Mr de la Harpe. In late June 2010, Mr de la Harpe recommended that the plaintiff undergo a CT-guided injection which the plaintiff declined, commenting, “I was very apprehensive about this”.[3] Mr de la Harpe then referred the plaintiff to Dr Clayton Thomas “for pain management strategies”.[4]
[3]PCB 15
[4]PCB 15
· The consequences of her injury were as follows:
(i) the presence of frequent back pain and pain into her right leg;
(ii)difficulty in walking which brought on “pins and needles” and a feeling of weakness in her right leg;
(iii)difficulty standing still or being seated without needing to move around;
(iv)difficulty driving and getting in and out of a vehicle;
(v)being limited to the lighter forms of housework;
(vi)being precluded from work (the plaintiff said that she was unfit for work and was presently in receipt of weekly payments of compensation in respect of that incapacity).
The Medical Evidence in support of the position that the plaintiff presents primarily with an Organic condition
(i) Dr Geoff MacAulay Report Dated 13 August 2009
5 Dr MacAulay has been the plaintiff’s general practitioner since the beginning of 2006. However the plaintiff had been a patient of Dr MacAulay’s practice since 2002. As at August 2009 Dr MacAulay opined:
“Currently I consider that Mrs Velic remains incapable of unrestricted full time pre-injury duties. Pain remains a very significant issue and this reduces her ability to concentrate or to remain seated or in one position for any length of time. She would find this impossible while trying to communicate with clients in her position as a social worker. She would currently be unable to travel to her workplace either by car or public transport for the same reasons as this trip would be a minimum 20-30 minutes one way.
As stated above, the main physical effect of her injury is pain which secondarily affects concentration, posture and stamina.
Likewise her injury will prevent her from socialising as easily as previously as well as reducing regular exercise. It would significantly impact or prevent her from carrying out many routine domestic activities such as cleaning and shopping.[5]
“In summary Mrs Velic has a lumbar disc injury causing nerve root irritation and back pain as a result of a work injury. Degenerative spinal disease is evident but there are newer changes at the levels of concern and the clinical onset only occurred after the work injury. I do not believe other factors contribute significantly to the injury.” [6]
[5]PCB 31
[6]PCB 32
6 In a further report dated 6 April 2011, Dr MacAulay opined:
“The current diagnosis remains of L5-S1 disc protrusion with secondary right L5 nerve root compression causing sciatica …
Mrs Velic may be able to perform reduced duties that do not require long hours or significant travel. She would need to be free to move around if pain became significant and would not be able to sit or stand for any prolonged period. She could operate a computer for limited times with changes in posture as indicated but not for extended periods. There should be no lifting. In practice, this would only allow her to perform home-based duties at present and these may not be available. I cannot see any way that she would be able to currently get to work or perform such duties in a meaningful way. With further rehabilitation this scenario however may be possible.
In terms of prognosis there is a poor likelihood of return to full duties. The injury remains significant and it is now well beyond 18 months’ duration. There has previously been a poor response to therapy trialled. As stated above, further pain management and rehabilitation therapies may assist but this is likely to be in the longer term and feel would be unlikely (sic) to produce better than limited return to any form of work duties.” [7]
(ii)Mr David de la Harpe – Orthopaedic Surgeon – Report dated 22 July 2010
[7]PCB 34-5
7 Mr de la Harpe reports that he examined the plaintiff on two occasions, being 25 June 2010 and 5 July 2010. He commented that he had offered the plaintiff treatment by way of a CT-guided injection but this was refused, and that having regard to the plaintiff’s keenness to undergo pain management strategies, Mr de la Harpe referred the plaintiff to Dr Thomas for further management. He opined:
“I believe Ms Velic has suffered an injury at work when lifting a water bottle into a water cooler …
The aetiology of the injury would seem to be that of aggravation of a pre-existing degenerative change which is age-related in the lumbar spine by her activity at work …
At the time of my review, Ms Velic had a limited capacity for employment in that she would have limited sitting tolerances and lifting tolerance … She seemed to be disabled by back pain and right leg pain …
I am not sure whether Ms Velic will improve with further conservative management but she is not keen on having any intervention.[8]
(iii)Mr Brian Barrett – Reports Dated 13 October 2009 and 15 August 2011
[8]PCB 36-37
8 In each report, Mr Barrett expressed the opinion that the plaintiff presented with painful ruptures involving particularly the L2-3, L3-4 and L5-S1 intervertebral discs; between August 2009 and August 2011 there had been no significant change or improvement in her symptoms or the level of her disability; that the plaintiff’s prognosis was poor “for the substantial lumbar disc ruptures as they have no significant capacity to heal or repair”;[9] and as at 15 August 2011, the plaintiff had “no capacity for employment including her pre-injury employment, or even light duties or part time employment, now or into the foreseeable future.[10]
[9]PCB 45
[10]PCB 45
(iv) Dr Helen Sutcliffe – Report Dated 13 October 2009
9 Dr Sutcliffe opined that the plaintiff presented with persisting severe pain in the presence of “disc derangement or aggravation of disc degeneration at L5‑S1 level”;[11] that her pain resulted in an “inability to perform full range of self care, limitation of capacity for domestic activity, and loss of capacity for employment at this stage”.[12] That there was no psychological component to the plaintiff’s presentation and that the plaintiff was at that time totally incapacitated for employment by reason of “the limitation of sitting and standing and limitation of concentration related to pain”.[13]
(v)Dr Clayton Thomas – Reports Dated 31 August 2010 and 9 September 2011
[11]PCB 52
[12]PCB 52
[13]PCB 53
10 In a report addressed to Mr David de la Harpe dated 31 August 2010, Dr Thomas opined that the plaintiff was suffering from a right-sided lumbosacral disc prolapse; that he had discussed with the plaintiff “nerve root blocks and she was not keen to go down that pathway and I confirmed to her that the chance of significant curable benefit was low”.[14]
[14]PCB 56
11 In a further report dated 9 September 2011, Dr Thomas opined that the plaintiff had suffered an injury to:
“… the right L5/S1 disc level and she developed a right disc prolapse. She also had right sciatica due to the disc prolapse.
She has symptomatic spondylosis with the back pain and right sciatica due to the disc prolapse. … when I initially saw her I felt her incapacity was partly on her physical problems with back pain and right leg pain and partly based on her emotional state and difficulty and coming to terms with the nature of her problems. I felt that rehabilitation was likely to assist her and augment her ability to cope and manage with this problem.
From a physical point of view her problems have been present for over two years. There is no expectation that her problems will absorb or resolve with time. It is likely that she will have persistent back and right leg pain going forward. … as far as work was concerned I felt she did have a limited capacity for work …
I formed the opinion that she could work in the vicinity of 15 hours per week, three hours five days per week, or four hours four days per week or something similar.”[15]
[15]T 61-62(?)
(vi) Mr Richard Bittar, Neurosurgeon – Report dated 11 April 2011
12 In a report dated 11 April 2011, Mr Bittar opined:
“Safija Velic presents with symptoms which are the result of disc prolapse and facet joint degenerative change at L5-S1. The diagnosis is aggravation of lumbar spondylosis.
In my opinion her employment has been a significant contributing factor. Specifically the injury which occurred on April 14, 2009 has been the dominant contributing factor …
Her prognosis is relatively poor. She is likely to suffer from significant pain and disability into the foreseeable future. …
Safija Velic will experience a significant detrimental long term effect as the result of the physical injury to her lumbar spine alone, suffered as the result of her employment on April 14, 2009 alone. … it is extremely unlikely that she will regain capacity for pre-injury duties or alternative employment. This incapacity largely relates to ongoing severe pain (which will affect her concentration), as well as her very poor sitting and standing tolerance. Her domestic activities are also restricted and she cannot engage in any cleaning or gardening. She is able to prepare light meals but cannot prepare more elaborate meals.” [16]
(vii)Mr Kenneth Brearley, General Surgeon – Report dated 28 April 2011
[16]PCB 80
13 Mr Brearley diagnosed the plaintiff as presenting with lumbar back pain, right-sided sciatica resulting from intra-disc injury and annular tearing of the L5-S1 intervertebral disc and opined:
“For the foreseeable future she will continue to have problems with her capacity to work. At the moment she could do some light part time office work of about eight hours per week but she has been told by her employer, Alfred Health, that she would need to do at least twice this before she could be employed in this part time fashion. This is unfortunate for a return to work in a very limited way would be most beneficial for her. There is no way she could work full time at this stage. …
All of her limitations referred to above are the result of physical injury. There is no obvious psychological sequelae.”
(viii) Medical Panel
14 On 9 March 2010, the Medical Panel consisting of five medical practitioners expressed the opinion that the plaintiff was suffering from an aggravation of pre-existing lumbosacral degenerative disc disease which rendered her incapable at that time of performing her pre-injury duties.
The Medical Evidence in support of the position that the plaintiff presents primarily with an Organic condition
15 The position taken by the doctors, to which I have referred above as to the organic nature of the plaintiff’s presentation is to be contrasted with the opinions of the following medical practitioners:
(i) Mr Armin Drnda, Neurosurgeon – Report dated 17 August 2009
16 Mr Drnda commented upon the CT scan revealing the presence of multilevel degenerative changes; every disc possessing a degree of degeneration and identified protrusions at the plaintiff’s L2-3, L4-5 and L5-S1 discs, commenting that it was possible that the L4-5 disc “would be the one that would have protruded more on the day of the incident.” Mr Drnda opined:
“I think the condition is to some extent work related. I think mainly due to long sitting without breaks and I think lifting container with water was a trigger of pain which was waiting to happen. It could have caused the disc protrusion at L4-5 but no one can sort of state it with great certainty. Psychological factor is also a major contributor. The patient has got significant stress and anxiety which on that part increases low back pain. Pending possible litigation is a negative prognostic factor and if the patient goes that way she is likely not to improve significantly and maybe even get worse.”[17]
(ii)Mr T J Russell – Reports Dated 27 May 2009 and 27 November 2009
[17]DCB 23
17 In each of his reports, Mr Russell opines that the plaintiff’s symptoms arise largely by reason of the presence of a “constitutional degenerative process” and were not work related. He further expressed the opinion that the plaintiff presented with a “substantially psychological situation and that her condition was such that it was unlikely to impact upon her ability to undertake full time employment by approximately the end of December 2009.
18 Having regard to the extreme position taken by Mr Russell as to the plaintiff’s capacity for full time work and the relationship between her symptoms and her work duties, I do not find his opinions at all persuasive. My opinion in this regard is further reinforced by the fact that whereas by November 2009, Mr Russell was expressing the opinion that the plaintiff’s continuing symptoms were no longer related to her employment; in March 2010 an independent Medical Panel disagreed with that view, commenting that the plaintiff’s incapacity for work was continuing and was materially contributed to by her claimed injury.
(iii)Dr David Ho, General Practitioner – Reports Dated 23 May 2010 and 6 June 2011
19 Dr Ho expressed the opinion:
· that the plaintiff presented with a chronic pain syndrome and with abnormal pain behaviour; and
· that the plaintiff’s presentation was secondary to her initial lower back injury which had involved an aggravation of degenerative changes in her lower back, the effects of which were likely to have persisted but resolved within twelve months or so.
20 In his second report, Dr Ho opined that the plaintiff presented with a symptomatic degenerative disc bulge in her lower back which had been caused by the twisting incident which she had suffered in her work; that at that stage she was “not able to return to her pre-injury duties and hours”; that a chronic pain syndrome was affecting her recovery; and that he anticipated “some improvement with the multidisciplinary pain management program”.[18]
[18]T 43-45
21 There is clearly a change in the position taken by Dr Ho as to the plaintiff’s capacity for work and the condition with which she presented to him when one contrasts the views expressed by Dr Ho in his first report and his second report. I interpret Dr Ho’s second report as identifying the plaintiff’s symptomatic degenerative disc bulge as being a significant contributing factor to her presentation, which precluded her from returning to pre-injury duties at that time, but that her presentation was also impacted upon by the presence of a chronic pain syndrome. Accordingly I interpret Dr Ho as opining in favour of the plaintiff presenting with an organic condition.
(iv)Mr Michael Dooley – Reports dated 8 February 2011 and 12 January 2012
22 In his first report, Mr Dooley opined that the plaintiff had suffered an aggravation of underlying degenerative disc disease which was present in her lumbar spine by reason of the work related incident; that he would have expected this aggravation to have resulted in intermittent episodes of low back pain and that the plaintiff’s presentation involved “a significant psychological reaction”. He opined that the plaintiff was presently unfit for employment but that he expected that she would be able to return to clerical work including social work at some time in the future.[19]
[19]DCB 48-49
23 In a report dated 12 January 2012, Mr Dooley opined that it was his opinion that the physical effect of the plaintiff’s aggravation had ceased and that whilst he did not believe the plaintiff to be deliberately exaggerating her presentation, she was now presenting with a “chronic pain syndrome involving a complex physical and psychological interaction in response to injury and/or pain”.
Finding as to the nature of the condition with which the plaintiff presents
24 The vast majority of the medical practitioners who have opined in this case support the position that the plaintiff presents with an organic condition which essentially incapacitates her from performing full time work involving prolonged periods of sitting or standing. Having regard to the fact that:
· for the most part, the body of medical opinion which opines to this effect comes from treating medical practitioners who have had the opportunity of examining the plaintiff on a number of occasions and review her progress; and
· that this is the opinion expressed by Dr Thomas, who as part of a multi disciplinary team has managed the plaintiff’s rehabilitation during 2011 ;
I find that body of opinion to be persuasive and I prefer that line of reasoning to the opinions expressed by Mr Drnda and Mr Dooley. Further, I do not accept the opinion of Mr Russell which I find unpersuasive for the reasons I have previously indicated.
The defendants challenge as to the plaintiff’s attitude to seeking work and to mitigating her loss.
25 It is put on behalf of the defendant that the plaintiff by failing to undertake treatment in the form of a nerve block, as suggested by Dr Thomas, has “not mitigated her loss”.[20]
[20]See the submission of Mr Dyer of Counsel who appeared on behalf of the defendant at paragraph 5
26 In my opinion, this submission has little merit having regard to the comment made by Dr Thomas that he had advised the plaintiff that the chance of obtaining “significant curable benefit” from that procedure was low.[21]
[21]PCB 56
27 Further, I accept the submission by Mr O’Dwyer SC, who appeared with Mr Forsyth for the plaintiff, that the plaintiff presents as a well motivated individual having regard to the plaintiff’s history both before and after her injury in which she has, in my opinion, displayed:
(i) determination in learning English and qualifying for employment as a social worker;
(ii)perseverance in realising her goal to obtain employment with the defendant;
(iii)diligence in pursuit of rehabilitation, her approach to which has not been questioned or criticised by Dr Thomas, who was supervising that rehabilitation.
28 It is put on behalf of the defendant that “it is curious that the plaintiff has made no enquiry of Hanover Services in relation to part time or lighter forms of work.” I accept the plaintiff’s evidence that the reason that she did not seek casual employment with Hanover following her injury was her knowledge (borne from working with that organisation for some seven years), that the structure of the working conditions involved the requirement to work an eight hour shift .[22] I am satisfied, having regard to the medical evidence to which I have referred, that undertaking employment in the form of an eight hour shift has been, and will remain, beyond the plaintiff’s capabilities by reason of the injury to her lumbar spine.
[22]T 24
Finding as to the plaintiff’s level of retained working capacity
29 As to the plaintiff’s capacity for work, I consider that Dr Thomas is probably best placed to express an opinion as to the plaintiff’s retained capacity. Further I am satisfied that the opinion expressed by him in his report of September 2011 represents the plaintiff’s now stabilised capacity, notwithstanding the fact that this opinion was expressed during the course of the plaintiff’s then unfinished rehabilitation program. I make this finding having regard to the plaintiff’s viva voce evidence as to her current symptoms and the level of medication which she requires to manage those symptoms,[23] which was not the subject of real challenge and which I accept.
[23]See in particular the plaintiff’s evidence at T 11 that towards the end of her rehabilitation program she was not gaining much assistance from the program in combination with her description of her current symptoms at T 12-13
30 Accordingly I am satisfied that whilst the plaintiff retains some capacity for suitable employment, this capacity is only part time in nature and is limited to working approximately 16 hours per week .[24]
[24]See the opinion of Dr Thomas at PCB 61.
31 It is accepted by the parties that in order for the plaintiff to demonstrate that the effect of her accident related impairment has been to occasion upon her a loss of earning capacity which would entitle her to commence a proceeding at common law seeking compensation for that loss; the plaintiff must establish that she is no longer capable of earning income in excess of $40,500 gross per annum, or $778.85 gross per week.
32 Having regard to:
(i) the fact that the current weekly wage available to a social worker in full time employment is $1,250 per week;
(ii) my finding, the plaintiff’s retained capacity for employment involves her capacity to work significantly less than twenty hours per week[25];
it is clear that the plaintiff has demonstrated that she has suffered a loss of earning capacity which meets the requirements of sub-s.134AB(e) and (f) of the Act.
[25]Employment for 16 hours per week would generate income of $526.32 gross per week and employment of 20 hours per week (some four hours more than that which Dr Thomas has opined as being the plaintiff’s capacity) would generate a gross weekly income of $657.80 per week which is well below the relevant threshold earnings figure of $778.85 gross per week.
33 Having made my findings as to the consequences to the plaintiff of the organic injury sustained by her to her lumbar spine, it is not necessary for me to consider the severity of her psychological condition.
34 For the reasons set out above, I am satisfied:
(i)that the plaintiff has established that by reason of the impairment of the function of her lumbar spine, she has sustained a loss of earning capacity, the consequences of which are, when judged by a 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; and
(ii)that the plaintiff is entitled to the orders sought in this application; namely, leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by her the subject of this application.[26]
[26]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
35 I will hear the parties as to the precise form of the orders sought in the matter and also upon the issue of costs.
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