Walden v St Vincent de Paul Aged Cared and Community Services and Victorian WorkCover Authority
[2013] VCC 532
•3 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MORWELL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03162
| ANNE-MAREE WALDEN | Plaintiff |
| v | |
| ST VINCENT DE PAUL AGED CARE AND COMMUNITY SERVICES | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 10 and 11 April 2013 | |
DATE OF JUDGMENT: | 3 May 2013 | |
CASE MAY BE CITED AS: | Walden v St Vincent de Paul Aged Cared and Community Services & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 532 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – serious consequences
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Shock Records Pty Ltd v Jones [2006] VSCA 180; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kocak v Wingfoot Australia Partners Pty Ltd & Ors [2012] VSCA 259
Judgment: Leave granted to bring proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr E Delaney | Maurice Blackburn |
| For the Defendants | Mr P Scanlon QC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant between 25 September 2006 and 4 September 2008 due to the nature of her employment; alternatively, discrete injuries suffered on or about 18 September 2006, 25 August 2008 and 3 September 2008 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. She brings this application 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 or loss of a body function”.
3 The body function relied upon, ultimately, in this application is the lumbar spine.[1]
[1]See paragraph 12.
4 The plaintiff relied on three affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. The defendant also relied on video surveillance taken of the plaintiff on 29 February 2012 and 7 March 2012.[2]
[2]Exhibit 8
Outline of Section 134AB
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By sub-section (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering 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 than “significant” or “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.
9 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] in reaching my conclusions.
[3](2005) 14 VR 622
11 The defendants concede that the plaintiff suffered organic injuries in the course of her employment as alleged and further concedes that it is constrained by the Medical Panel opinion dated 21 November 2011 in accordance with the principles laid down in Kocak v Wingfoot Australia Partners Pty Ltd & Ors.[4] Relevantly, the Court of Appeal found, at paragraph [29] therein:
“… the medical panel’s opinion amounted to a final decision which necessarily and directly decided a precise matter of fact or law which will fall for determination in the serious injury application proceeding and thereby created an issue estoppel which would be binding in the serious injury application.”
[4][2012] VSCA 259
12 Accordingly, it was agreed by plaintiff’s Counsel that the claim for injury to the thoracic spine and for psychiatric injury would probably fail.
13 Perhaps the most significant area of residual dispute between the parties is whether or not the physical injury suffered in the course of the plaintiff’s employment is said to cause consequences which are “serious” in terms of the legislation.
Compensable physical injuries
14 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment as a personal carer and in particular in referred to in incident reports and register of injuries in Exhibits U and V respectively.
15 A Medical Panel Certificate of Opinion dated 21 November 2011 was tendered in evidence.[5] Both parties agree that its effect is as follows in accordance with the decision of Kocak (infra):
(a)the plaintiff is suffering from persisting low-back dysfunction without radiculopathy as a consequence of an aggravation of lumbar degenerative disc disease … relevant to the alleged low back injury;
(b)the low-back injury incapacitated the plaintiff for her pre-injury duties;
(c)the plaintiff’s persisting low-back dysfunction (as at 21 November 2011) without radiculopathy was still materially contributed to by the alleged lower back injury;
(d)at that time, the plaintiff had a current work capacity and work as a receptionist would constitute suitable employment.
[5]Exhibit A
16 Given that the Medical Panel opinion created the estoppel as set out, both parties agreed that two questions were thereafter relevant; viz:
(i)Has the plaintiff demonstrated that there has been no material change in the plaintiff’s low-back dysfunction as at the date of hearing, such that the elements of the estoppel will still have effect?
(ii)If there has been no change in the persisting low-back dysfunction, does the level of low-back dysfunction, as at the date of hearing, satisfy the requirements of serious injury as referred to above?
17 In terms of the effect of the medical opinion, counsel for the plaintiff relied succinctly on the opinions of Mr Clive Jones, orthopaedic surgeon, for the defendant, in his reports dated 12 May 2011 and 7 April 2012. As at the latter date, his principal thesis was that the plaintiff’s then current condition no longer related to her employment, “but simply to the fact that she suffers from disc degeneration”.[6] He went on to make the following points:
(i)“Her painful back makes it impossible for her to return to her previous employment. It also makes common household tasks difficult, necessitating them to be performed by others.”
(ii)“A prognosis is reserved. There has been little change in this lady’s presentation since she was seen on the first occasion in February 2009, and no change can be expected.”
(iii)“I presume that the Medical Panel’s view that a work relationship still does in fact exist will have to be respected.”[7]
[6]Exhibit 2 7 April 2012, Defendant’s Court Book (“DCB”) 94
[7](ibid) page 94
18 Counsel for the defendant fairly concedes that this is sufficient evidence for the plaintiff to establish on a prima facie basis, that the effects of the estoppel are still extant as at the date of hearing. However, counsel contends that in answer to the second question, the plaintiff has not demonstrated that the consequences from the said injury are “serious” within the meaning of the Act.
Pain and suffering consequences – principles
19 As has been set out on a number of occasions, but particular in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd[8] at paragraph 46:
“The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life.”
[8][2011] VSCA 52
20 The Court of Appeal recited with approval the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[9] where his Honour recorded:[10]
[9](2010) 31 VR 1
[10](ibid) paragraphs [9] to [11]
“[T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life …
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale “mild/moderate/severe”. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[47] Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said:
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
[48] An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) by Nettle JA, Maxwell P observed:
As to (d), the cases recognise that some plaintiffs may be more “stoical” than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the “stoical” plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the “objective” evidence of the disabling effect may be of less significance than usual.
[49] To identify the disabling effect of pain requires an understanding both of a plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘ … [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
[50] Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
Pain and suffering consequences of compensable physical injury
21 Mr Thomas Kossmann, orthopaedic surgeon, saw the plaintiff for medico-legal purposes on 12 March 2013. He identified the pathology in the lumbar spine which had been rendered symptomatic by the work as alleged to be “a broad-based disc protrusion mildly indenting the thecal sac at the L5-S1 level”. The history was one of continuing low back pain since the first incident in 2006 and certainly since she had ceased work in or about 2008. Mr Kossmann thought the prognosis was that the plaintiff would suffer from back pain for the rest of her life and she had no work capacity for her pre-injury employment but would be capable of suitable light duties.
22 The defendants had the plaintiff examined by orthopaedic surgeon, Mr Clive Jones, on a number of occasions between 26 March 2009 and 7 April 2012.[11] It was his opinion that the work had aggravated underlying degenerative changes as alleged but with the passage of time the constitutional degenerative condition had taken over. When seen on the last occasion he noted:
“There has been little change in this lady’s presentation since she was seen on the first occasion in February 2009, and no change can be expected.
I presume that the Medical Panel’s view that a work relationship still does in fact exist will have to be respected.”[12]
[11]Exhibit 2
[12]Exhibit 2, DCB 94
23 In terms of the estoppel created by the Medical Panel opinion and in view of the unanimous medical opinion that there had been little or no change since that date, I consider the case for the plaintiff reduces to whether she has discharged the onus of proof in accordance with the principles set out above, in answer to the second question.[13]
[13]Paragraph 6
24 In that light, I consider that Mr Jones to be in a reasonable position to assess the plaintiff’s condition at least between March 2009 and April of 2012. On the first occasion he assessed her, he noted that her symptoms of lower lumbar pain were accompanied with feelings of stiffness and that the buttocks of both legs were involved. Although she had improved a good deal since September 2008, recent progress had been extremely slow. He recorded that she would have to rest during the day for half an hour or so and the back could keep her awake at night and it can be difficult for her to roll in bed.[14]
[14]Exhibit 2, 26 March 2009, DCB 85
25 On examination, he found her to be a pleasant, genuine lady. She was overweight and virtually had a full range of spinal movement with an absence of abnormal neurological signs. He considered that the back symptoms were related to a multi-level disc degeneration and he considered that current clinical and radiological findings would favour symptomatic lumbar disc degeneration.[15]
[15](ibid), DCB 85
26 Significantly, he thought the plaintiff presented:
“… in a genuine and straight forward manner and showed none of the usual symptoms of functional overlay or psychosomatic factors. …It appears the worker’s condition could be best described as an aggravation of pre-existing disease in her spine.”[16]
[16](ibid), DCB 85
27 Further, he believed that a work relationship could still be seen in the plaintiff’s presentation and her work capacity was greatly reduced and in fact she was not performing her pre-injury employment. It was his opinion at that time that:
“The condition appears to be likely to become chronic and consideration should be given to a referral to a rehabilitation provider.”[17]
[17](ibid), DCB 86
28 On 12 May 2009, Mr Jones considered that the plaintiff’s thoracic condition was not materially contributed to by workplace injury but there was a recognisable contribution to the plaintiff’s current lumbar condition.[18] Further, he did not believe that the worker injury aggravation had resolved at that time.[19]
[18](ibid), 12 May 2009, DCB 88
[19](ibid), page 88
29 Mr Jones again examined the plaintiff on 20 April 2011 and reported on 12 May 2011. He recorded that the plaintiff was not working at the time and was not looking for work. Her symptoms, of reasonably generalised low back pain, continued to trouble her and there had been very little, if any, real change since he saw her on the first occasion. She was still seeing a physiotherapist monthly and she found that Nurofen was the most reliable pain reliever and occasionally she was using Voltaren Rapid.
30 She was living with her husband and youngest daughter and she was able to perform light housework with the family doing the vacuuming and mopping. She worked at her own pace. She stated she was able to visit the supermarket provided the shopping bags are not too heavy. She stated she found herself lying down during the day at home to try to ease her pain. At that stage he considered there was a limited work capacity. He considered that if motivated she could undertake clerical work again. She was, however, unable to work in personal care where the duties require a deal of patient contact and substantial patient assistance.
31 Suitable employment for her would be: “situations where lifting was limited to 5 kilograms and the need to bend repeatedly is restricted.” The prognosis was poor and he suspected that there would be a long period of unemployment to follow.[20]
[20](ibid), 12 May 2011, DCB 91
32 Mr Jones examined the plaintiff again on 8 March 2012 and reported on 7 April 2012. He recorded that there had been no recent change in the average level of the back pain wherein she experienced good and bad days, with most of the pain the lower back, with some buttock radiation, occasionally reaching knee level. He noted that at present there was no active treatment apart from medication. The latter included Valium for muscle spasm and Nurofen Plus and Voltaren Rapid. Her activities were “quite limited”. If she goes to the supermarket she can only manage small quantities of goods. Her husband had taken over the cleaning, vacuuming and mopping tasks. The plaintiff was unable to do much outside the house. She had been unable to reduce her weight which remained at around 120 kilograms. On examination, the plaintiff localised her symptoms to the lumbar spine area and Mr Jones noted: “There was no evidence of reactivity or abnormal illness behaviour.”[21]
[21](ibid), 7 April 2012, DCB 93
33 He summed up her present condition as follows:
“The worker’s current condition is chronic low back and buttock pain, which is ongoing and associated with degenerative change in the spine.”[22]
[22](ibid), DCB 93
34 As previously recorded, he confirmed that her painful back made it impossible for her to return to her previous employment.
The Plaintiff’s evidence
35 The plaintiff was cross-examined extensively about her disagreement with her treating doctors about her capacity to work. The plaintiff agreed she had been certified as being fit for light work for some time but she herself considered herself not capable of performing any work.
36 Limited surveillance film was shown of her on 29 February 2012 of approximately five minutes’ duration and again on 7 March 2012 for a similar period. She did concede in cross-examination that she had attended a shopping centre for about two hours on the first occasion. She said, however, she would have needed frequent rests in that time and she was always looking for seats to sit down when she attends shopping centres.
37 Counsel for the defendants elicited she was able to drive from her home to a shopping centre in Forrest Hill in the company of a friend, who had a driver’s licence, but elected not to drive the plaintiff.
38 A great deal of time was spent in cross-examination whereby counsel for the defendants established that the plaintiff was at odds with virtually all medical practitioners to the extent that she disagreed with their opinions about her fitness for work. I accept the opinions of her medical practitioners rather than her own with respect to her capacity to perform light work. However, in this proceeding the plaintiff is not seeking leave to commence proceedings for economic loss at common law; rather, she is seeking leave to proceed for pain and suffering.
Findings
39 In terms of the criteria referred to above, I make the following findings:
(a)The plaintiff, although somewhat strident in her answers under cross-examination, was nonetheless honest in her belief, and, in my view, justified Mr Jones’ opinion that she was genuine.
(b)As to her experience of pain with respect to the frequency and duration, I have already referred to the two medical practitioners who best represent the opinions expressed by either side and note that they considered the pain to be chronic and unchanging and in need of treatment by way of daily medication and rest, and resulting in interference with sleep. The plaintiff, herself, says that the pain she suffers in her low back is there all the time and that it goes down her buttocks and the back of her legs. The pain that goes into the buttocks is mostly there all the time and the pain in the legs comes and goes.[23] Activities which make it worse include walking, sitting and doing general household duties. In fact, she had to give away walking which she used to enjoy with a friend by the name of Trisha.[24] The only thing that assists her with the pain is lying down and taking medication which “takes the edge off”.[25] The plaintiff takes between two to six Nurofen a week, “maybe less, just depending on the severity of my pain.”[26] There are also episodes where the pain is so bad she is confined to bed and needs to take suppositories and she thought that this happened every couple of months.[27]
(c)It was common ground that the plaintiff had permanently lost her career of looking after elderly patients. He grandparents had been suffering from dementia and it was an area that she was interested in.[28] She had completed the relevant program in approximately 1988 and had continued her work despite a number of incidents whereby she injured her back. Although she conceded that she was fit for work in an office job, she was not “au fait” with modern technology but, in any event, was not interested in pursuing a career that was outside her first choice. This aspect of the consequences suffered was not challenged by the defendants.
(d)She further swore that she can no longer dance and she can no longer engage in kayaking and netball coaching. The latter was an activity where she coached her daughters’ teams. These consequences were not challenged in cross-examination.
[23]Transcript (“T”) 16, L9-18
[24]T16, L26-31
[25]T17, L1-4
[26]T16, L15-17
[27]T18, L27 – T 9, L5
[28]T66, L10-17
40 Taking into account the plaintiff’s experience of pain and disabilities and her honest presentation, it is my opinion that the pain and suffering consequences to which the physical compensable injury materially contributes are “very considerable” and more than “significant” or “marked”. I consider that her injury to the lumbar spine has met the threshold test for leave to bring proceedings for damages under s134AB(16)(b) of the Act.
41 I will hear the parties as to consequential orders.
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