Watson v Alzburg Resort Pty Ltd
[2012] VCC 1452
•1 October 2012
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04949
| JEANETTE FAYE WATSON | Plaintiff |
| v | |
| ALZBURG RESORT PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 26 and 27 September 2012 | |
DATE OF JUDGMENT: | 1 October 2012 | |
CASE MAY BE CITED AS: | Watson v Alzburg Resort Pty Ltd | |
| MEDIUM NEUTRAL CITATION: [First Revision 3 October 2012] | [2012] VCC 1452 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: right foot injury – whether injury had stabilised – whether proposed treatment likely to ameliorate the impairment of function – whether pain and suffering consequences are “serious”
LEGISLATION: Accident Compensation Act 1985, s134AB (38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
JUDGMENT: leave granted to the plaintiff to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering arising out of her employment with the defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas & McPherson |
| For the Defendant | Mr A Moulds SC with Ms S Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 9 June 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr J Mighell SC appeared with Mr D Purcell of Counsel for the plaintiff and Mr A Moulds SC appeared with Ms Manova of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the right foot.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 1 and 18 - 57: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1 - 9C: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained ss(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Background
9 The plaintiff was born in 1951. She is now sixty-one years of age. She last attended the Warragul Secondary College. She completed Year 10. The plaintiff married in 1977. Her marriage broke down in February 2004. She is the mother of three children who are about thirty-two, thirty and nineteen years of age.
10 The plaintiff lives in Mansfield. Two of her children live in Mansfield. Her youngest child is studying medicine at a university in Queensland and is still financially dependent upon the plaintiff.
The Incident
11 The plaintiff commenced employment with the defendant on 29 December 2004 on a casual basis. The defendant conducts a resort in Mansfield. From late December 2005, she was employed as the head housekeeper.
12 On 19 February 2007 the plaintiff was helping out in the kitchen of the defendant’s hotel resort. The plaintiff was dressed in her housekeeping clothing because she occupied a position front of house. She was wearing ordinary shoes. It was usual practice for someone working in the kitchen to wear protective shoes.
13 She commenced cleaning a stove. It needed to be cleaned using caustic soda cleaning material. The plaintiff sprayed it onto the stove top. She waited until it foamed up before she began wiping it off. Some of the caustic soda spilled over the edge of the stove onto the top of the plaintiff's right shoe. She experienced initial pain. When she finished her shift and went home she discovered burns in two places through her shoe.
The Plaintiff's Medical Treatment
14 The plaintiff attended a local hospital in Mansfield. She saw Dr Jolly, general practitioner, who treated the burns by applying a dressing. Dr Jolly is one of a number of medical practitioners who work at the Mansfield Medical Clinic.
15 Dr Cook, one of Dr Jolly’s colleagues at that clinic, provided a report dated 10 October 2008[2] which contains a good summary of the diagnosis made of the plaintiff’s injury and the treatment she was afforded at the clinic by a number of medical practitioners.
[2]PCB 39-40
16 Dr Cook composed the report from the clinical notes of the plaintiff. She noted the following:
“On 19th February 2007 Mrs Watson attended Dr Philip Jolly with what he described as full thickness burns to the right foot secondary to oven cleaner dripping into her shoe when cleaning a hot plate. The chemical burns were initially black and dry. With regular dressings, the necrotic area was removed, the healthy tissue granulated and the skin eventually healed by mid April 2007.”[3]
[3]PCB 39
17 The plaintiff developed a burning sensation in her foot and interference with her mobility. Dr Cook noted the following diagnosis:
“Two deep caustinc [scil caustic] burns to the dorsum of the right foot, involving the full thickness of the skin, cutaneous nerves and subcutaneous tissue.
Persisting localised neuralgia of the foot due to damage to the cutaneous nerves under the foot.
Gait disturbance due to pain in the right foot causing musculoskeletal pain in the right ankle, hip and back.”[4]
[4]PCB 39
18 Dr Cook also noted that the plaintiff experienced pain in her right foot in the area of the burns and the cutaneous nerve damage if the foot was overstimulated. The plaintiff was treated by medications to suppress the neuralgic pain. The medications had adverse side-effects and hence were considered unsuitable by Dr Cook. She recommended that the plaintiff avoid intermittent pressure on the burn site. She noted that the plaintiff developed a limp associated with right foot pain. She recommended that the plaintiff have regular treatment for the purpose of normalising her gait interference. She also considered that simple analgesics and steroid ointment to the wound would assist to reduce the skin sensitivity.[5]
[5]PCB 40
19 Dr Reid, a colleague of Dr Jolly and Dr Cook, referred the plaintiff to Dr MacLeish, consultant physician in Wangaratta. The plaintiff saw him in about September 2007. He examined the plaintiff, and expressed the following opinion:
“There is a small area on the mid lateral aspect of her right foot, distal to the area of caustic burn where the pin prick and temperature sensation are reduced. Touching the burn areas produces significant discomfort and dysaethesia … .
I believe what is going on here is a post-caustic burn localised neuralgia (I think analogous to post-herpetic neuralgia) due to cutaneous nerve injury from the caustic burn.”[6]
[6]PCB 41
20 Dr MacLeish suggested that the plaintiff try a number of types of prescription medication. He encouraged her to use regular doses of paracetamol, which the plaintiff informed him was helpful. He also suggested that she might need to try OxyContin if paracetamol was not effective.
21 The plaintiff was referred to Dr Todhunter, specialist in anaesthesia and pain medicine. He first saw her on 29 November 2010. He obtained a history of how the plaintiff came to be injured. On examination he noted the following:
“Examination revealed that there was tactile allodynia, in that there was sensitivity to touch over the lateral foot and the sole. There is some mottling of the right foot compared with the left but the temperature was equal in both feet to touch. I felt there would be dystrophic changes affecting the mobility of the foot in that flexion/extension of her toes was reduced. There was mild swelling when I saw her.”[7]
[7]PCB 44
22 On the basis of the history and his examination of the plaintiff, Mr Todhunter then expressed the following opinion:
“In my opinion she has ongoing neuropathic pain affecting the right foot. As the pain is outside the distribution of the area initially burnt in the distribution of superficial peroneal nerves she would have by definition I believe a complex regional pain syndrome type 2 in that there was likely to be some injury to the named superficial peroneal nerves in the first instance and the pain now extends outside those nerves. The combination of allodynia, persistent pain, swelling and discolouration along with the dystrophic changes would make up the necessary criteria for a complex regional pain syndrome in my opinion.”[8]
[8]PCB 44
23 Dr Todhunter recounted the treatment provided for the plaintiff and its effectiveness. He then said that he wanted the plaintiff try a topical local anaesthetic known as Emla. He then said:
“… that the treatment was aimed at reducing her symptoms of pain and discomfort as there is no treatment that will cure her condition.”[9]
[9]PCB 46
24 Dr Todhunter added that the plaintiff’s injury had proved to be resistant to the treatment which had been provided to her up until the time when he saw her. He repeated that the treatment he proposed would partly reduce the pain, but not her condition, and he then added that he had no expectation that there would be any spontaneous improvement or cure for her condition.[10]
[10]PCB 46
25 Dr Todhunter reviewed the plaintiff on 20 January 2012. She told him that the Emla had been moderately effective in reducing her pain, particularly at night. Otherwise, it would appear that he did not note any improvement in her condition. He suggested that she have a pulsed radio-frequency lesion of the sural nerve to see if that would reduce the sensitivity and pain she was experiencing over the lateral part of her foot which was the area innervated by the sural nerve.[11]
[11]PCB 48
26 Dr Todhunter undertook the pulsed radio-frequency lesion of the sural nerve on 25 July 2012.[12] On review, probably in September 2012, the plaintiff told him that it had not helped her in any way. He wrote a courtesy letter to Dr Slaney, a colleague of Dr Jolly and Dr Cook, in which he said the following:
[12]PCB 48A
“As far as further treatment options are I would see them as follows:
1 Trialling a more potent opioid particularly at night such as slow release Morphine or Oxycodone.
2 A Ketamine infusion may well be worthwhile and I will write to the Insurer about getting approval for that for a 5 day period.
3 There’s the option of spinal cord stimulation which is obviously more involved but could well be very helpful if coverage into her foot can be obtained adequately."[13]
[13]PCB 48B. Dr Todhunter wrote to the relevant WorkCover insurer by letter dated 11 September 2012 seeking permission for a Ketamine infusion at PCB 48B
27 At present the plaintiff uses Emla at night. She said that it gives her about two hours relief from pain before the effect of it wears off. She also takes six to eight Panadol per day; Panadol Plus at night; and Osteo-eze, which she described as a slow-release pain reliever.[14] The plaintiff said she is waiting to see Dr Todhunter to determine what treatment is open to her.
[14]Transcript 8
The Other Medical Evidence
28 Mr Stapleton, plastic and hand surgeon, examined the plaintiff on 16 May 2012. He obtained a similar history given to Dr Todhunter regarding the incident and the symptoms experienced by the plaintiff. He noted on examination that the dorsum of the plaintiff's right foot was pigmented and swollen when compared with the left foot. The area he outlined on a photograph attached to his report was very tender.[15]
[15]PCB 52. The area outlined over the dorsum
29 Mr Stapleton seemed to be doubtful that the pulsed radio-frequency lesion of the sural nerve would diminish the plaintiff's pain. In that respect, he was correct. He doubted that the plaintiff would experience any improvement. He considered that the plaintiff's injury had stabilised. He added that she had reached the maximum medical improvement that he would expect.[16]
[16]PCB 51
30 Dr Blombery, consultant vascular physician, examined the plaintiff on 19 April 2012. He also obtained a similar history to Dr Todhunter regarding the incident and the symptoms experienced by the plaintiff. On examination, he noted that the plaintiff's right foot was 0.5 degrees warmer than the left foot and that there was significant brush allodynia over the dorsum of the foot and over the distal half of the lateral calf; reduced sensation under the lateral foot and over the lateral foot; and a full range of movement of the ankle and hind foot.
31 Dr Blombery proposed that the plaintiff to undergo a variety of forms of treatment. He noted that she had in fact employed some of those forms of treatment. He proposed that one of those forms of treatment be a pulsed radio-frequency lesion of the sural nerve. He seemed uncertain whether it would produce a positive result or whether it would aggravate the plaintiff's condition. He also suggested an intravenous Ketamine infusion, although he did not consider that her pain was severe enough to warrant that procedure at that stage.
32 Dr Blombery was ultimately of the opinion that the plaintiff’s prognosis was extremely poor and that there would be no significant change in her level of disability in the foreseeable future.[17]
[17]PCB 55-56
33 Mr Marshall, general surgeon, examined the plaintiff on 17 March 2009. His examination of the plaintiff is in significant contrast to the results of the examinations by Dr Cook, Dr MacLeish, Dr Todhunter, Mr Stapleton and Dr Blombery. His opinion is also at odds with their opinions. Although Mr Moulds did not press his opinion, it seems to me that it should be disregarded altogether for two reasons: firstly, Mr Marshall is a general surgeon who does not have the specialty of Dr MacLeish, Dr Todhunter and Dr Blombery, and otherwise his opinion is out of keeping with the other opinions to a very significant degree.
The Issues
34 Inherent in the submissions made by Mr Moulds was a concession that the plaintiff had suffered a compensable injury: however, Mr Moulds made four submissions:
· The plaintiff has a capacity to perform her pre-injury work, or work closely assimilating to it in terms of hours and tasks.
· Some aspects of the plaintiff's evidence contained in her affidavits are plainly wrong, and therefore, her credit is in issue to some degree.
· The plaintiff’s injury is not medically stable, given that Dr Todhunter wants the plaintiff to undergo further treatment which may partially ameliorate the symptoms, and therefore, enable her to function at a more active level with less pain.
· Even if I were to find that the plaintiff's injury is medically stable, then her pain and suffering consequences do not meet the statutory test.
Pain and Suffering
35 What is not in issue is the fact that the plaintiff did suffer burns to her right foot which has resulted in the plaintiff suffering the injury described by Dr Cook, Dr MacLeish, Dr Todhunter, Mr Stapleton and Dr Blombery.
36 What is also not in issue is that there are consequences which each of those medical practitioners considered to be the likely consequences of the kind of injury suffered by the plaintiff.
37 Therefore, I accept the plaintiff's evidence that:
· She has persistent pain in her right foot. That seems to be universally accepted by all the medical practitioners whose evidence I have reviewed, perhaps except for Mr Marshall, who seemed to doubt the plaintiff's complaints of pain.
· She has persistent swelling in her right foot. The swelling was noted by Dr Todhunter[18] and Mr Stapleton.[19] I observed the plaintiff's right foot at close range with counsel and was able to observe swelling in the plaintiff's right foot when a comparison was made with her left foot.
[18]PCB 44
[19]PCB 51
· The plaintiff’s right foot is warmer than her left foot. That was noted by Dr MacLeish,[20] and Dr Blombery.[21]
[20]PCB 41
[21]PCB 55
· The sensation over the dorsum of her right foot is reduced, and touching it produces significant discomfort. That was noted by Dr MacLeish;[22] Dr Todhunter;[23] Mr Stapleton;[24] Dr Blombery[25] and Mr Marshall.[26]
[22]PCB 41
[23]PCB 44
[24]PCB 51
[25]PCB 55
[26]DCB 6
· She has difficulty standing and walking for prolonged periods of time. The plaintiff said that she can walk comfortably for about five to eight house blocks before the pain begins to impair her capacity to walk.[27]
[27]Transcript 7
· The level of sensitivity limits her to wearing open shoes which she described as “ballet” or “slipper” style.[28] It prevents her from being able to tolerate wearing socks; having bedclothes touch her foot when she sleeps at night, and being limited to wearing lighter weight pants to avoid heavy weight pants laying on her right foot.[29]
[28]Transcript 35. The plaintiff demonstrated the nature of good footwear by showing me one of her shoes
[29]Transcript 9 and 11
· The level of pain and sensitivity has prevented the plaintiff from playing social games of tennis and engaging in rock 'n' roll dancing locally. However, she contradicted her evidence in her first affidavit that she had in fact not travelled to Benalla to go to mid week rock 'n' roll dances. She said she intended to go, but was prevented by the occurrence of the injury of being able to go.[30]
[30]PCB 7, compared with her oral evidence at Transcript 13-14
· Her ability to engage in other activities, such as swimming, interacting with her grandchildren, driving distances and gardening are also affected by the injury to her right foot, but the impression I was left with was that the impact of the injury on these particular activities is not as significant as it is on other activities.
· The injury has been resistant to treatment thus far. I accept that the plaintiff's use of Emla gives her limited relief. I accept her evidence that she consumes a significant quantity of over-the-counter painkilling medication to give her pain relief, and her use of over-the-counter medication must be seen in the context of the evidence of Dr Cook, that the stronger prescription medication was ineffective.[31]
[31]PCB 39
38 I accept the plaintiff's evidence about each of these matters because it seems to me that they each involve suffering stress and strain on her right foot or suffering pressure or touching of the dorsum of her right foot which produces two results: firstly, because to some degree sensation over the dorsum of her right foot is reduced, and to some greater degree touching will produce significant discomfort; and, secondly, the histories obtained by Dr Cook, Dr MacLeish, Dr Todhunter, Mr Stapleton and Dr Blombery, together with their examinations, convinced them that the complaints made by the plaintiff of the sort of interference which I have summarised in the preceding paragraph are consistent with the nature and the degree of the injury suffered by the plaintiff.
39 Otherwise, it seemed to me that the plaintiff gave her evidence in a relatively straightforward and convincing manner, except for two matters which I consider not to be so significant that they have made the plaintiff any less creditworthy.
40 The first is the plaintiff’s reference to going to Benalla to dances. It is quite clearly wrong. However, she responded to Mr Moulds’ questions by conceding that she had not yet travelled to Benalla, but intended to. She volunteered that her affidavit was wrong in that respect.
41 The films shown of the plaintiff are short and I think equivocal in what they show. The film taken on 5 July 2012 showed the plaintiff walking to her car and entering the driver’s side of her car. It also showed her walking down the street to a shop door, then turning around and walking back. Mr Moulds submitted that the plaintiff was walking without restriction and at a reasonable pace. Mr Purcell, who made the final address for the plaintiff, submitted that there was some evidence of limping. I have re-played the film of that day. What I saw was the plaintiff walking with something of a rounded or rolling gait. I was unable to detect whether she was limping or not. The film of 6 July 2012 was a matter of seconds and is of no consequence. In the end, I am not able to take anything much from the films.
42 However, there is some evidence that the plaintiff experienced an altered gait. The plaintiff told Dr Cook that she, among other things, drags her foot, and that if she pivoted suddenly her ankle tended to give way. She also told Dr Cook that her awkward walking style was giving her lower back and hip pain. She was referred to an osteopath and remedial masseur for treatment for the lower back and hip pain.[32]
[32]PCB 39
43 I now turn to the issue of the plaintiff's work. I have carefully read the plaintiff's affidavits, the affidavits of Ms Greenaway sworn 25 June 2012 and 18 July 2012,[33] and the affidavit of Ms Cincotta sworn 11 July 2012.[34] The issue was whether the plaintiff returned to work on near normal duties working significant hours. The thrust of the evidence of Ms Greenaway and Ms Cincotta is that the plaintiff did return to near normal duties working significant hours. The plaintiff swore a second affidavit on 29 June 2012[35] in which she took issue with the thrust of Ms Greenaway's evidence.
[33]DCB 1-4 and 4A- 4I
[34]DCB 9A-9C
[35]PCB 28-32
44 However, when Mr Moulds cross-examined the plaintiff, she did concede that she had worked up to 87 hours a fortnight. On occasions her duties involved assisting with laundry duties; making beds; stripping rooms of linen and removing rubbish. She denied that she did any cleaning or was capable of doing any heavy lifting; that she pushed the linen on trolleys or that she engaged in cleaning of rooms which involved squatting, kneeling or bending.[36]
[36]Transcript 27-28
45 I am not entirely convinced that there is much in the issue of the plaintiff's capacity to work because in her first affidavit, she made extensive reference to her return to work with the defendant; obtaining work at the Mansfield Hospital; obtaining work at the Delatite Winery; returning to work with the defendant when the hours at the Delatite Winery were not the 30 hours she thought she might be able to work, but were more like 10 to 15 hours over a six-week period, and looking seriously at taking up work as a breakfast cook at a school camp at Howqua.
46 The purpose served by Mr Moulds’ cross-examination was to demonstrate that the plaintiff has a capacity to be on her feet for longer periods than she was prepared to say was the case. Ultimately, that evidence was said to impinge upon whether the pain and suffering consequences contended for by the plaintiff could meet the statutory test.
47 The conclusions I have reached are that the plaintiff suffered an injury to her right foot of the kind which has been adequately described by Dr Cook, Dr MacLeish, Dr Todhunter, Mr Stapleton and Dr Blombery. It undoubtedly impairs the function of her right foot and produces pain and suffering consequences.
48 I accept that the plaintiff suffers the pain and suffering consequences which I have summarised in paragraph 37 and following. I accept that they interfere with her capacity to function in almost every part of her social, domestic and recreational life to a significant degree. I accept that she continues to require medical treatment, and continues to require the use of significant volumes of over-the-counter painkilling medication.
49 In these circumstances, I consider that the plaintiff’s pain and suffering consequences meet the statutory test of seriousness.
50 I do not accept the submission made by Mr Moulds that the treatment which Dr Todhunter has suggested the plaintiff undergo means that the plaintiff is medically not stable. I think the submission made by Mr Purcell is the correct approach which I must take, and that is, I must look at the treatment Mr Todhunter thinks the plaintiff should undergo in the context of the opinions of Dr Todhunter himself, Dr MacLeish, Mr Stapleton and Dr Blombery, that there is no treatment which they consider will cure the plaintiff’s injury or make much difference to it.
51 Dr Todhunter has not said that the treatment will be a cure. Therefore, I infer that his proposal that the plaintiff undergo further treatment is to try to ameliorate some of the symptoms which is precisely what he said in March 2011, that any treatment is aimed at reducing the plaintiff’s symptoms. Furthermore, it is a second level of treatment where the primary treatment failed. If Dr Todhunter considered that it would be treatment providing significant amelioration, one would think that he would have offered the plaintiff that treatment as a first level of treatment, not as a secondary level of treatment.
Conclusion
52 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of her employment with the defendant.
53 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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