Written by Peter CarterJuly 31, 2017
A hard-working aged care nurse who failed to mention her work injury – on any of her many post-accident visits – until two years after the event, has been awarded nearly $500k for its consequences.
In March 2008 31-yr-old Jillian Wallace was showering a patient at the RSL operated Chelsea Nursing Home in Maryborough, when she slipped on the wet shower area surface, injuring her left ankle.
Thinking it was just a twist that would recover in time and because she needed to keep working to repay her mortgage, she kept at her job.
Although she saw her doctor for other things, the ankle wasn’t mentioned because she understood the rules of the medical practice were that she could only deal with a single medical problem on each visit.
Against her hope the symptoms would dissipate, the pain and swelling in her ankle and leg only got worse. When she finally did seek medical advice, her GP referred her to the Maryborough hospital where her lower leg was immobilised in a plaster back slab.
It was that event that was subsequently proven to have brought on a deep-vein thrombosis and two subsequent pulmonary embolisms.
Fast forward to December 2016 and the ensuing injury compensation lawsuit.
Wallace conceded she had been advised to wear suitable shoes to perform her duties but said slipperiness of the shower cubicle floor surfaces were widespread in the wing of the centre in which she worked.
Investigations by forensic engineer Brendan McDougall rated the particular surface an average BPN (British Pendulum Number) of just 25.8 as compared to a desirable pendulum rating of at least 35 and preferably closer to 50.
In his view, the friction coefficient was well below the suggested minimum requirements for wet areas and that such deficiency – and the high potential for slips and falls on the vinyl floor – would have been identified had appropriate risk assessments been performed at a much earlier time.
The defendant purported to escape liability by demonstrating from a schedule of finishes pertaining to the wing’s construction, that the flooring was finished in an Armstrong product known as Accolade Safe Plus, a product highly regarded for its non-slip properties and compliant with the relevant standards for wet surfaces.
It conceded however that the surface inspected by McDougal had nothing like the non-slip characteristics of the specified product.
The court concluded that the wet-surface safety of product installed was far short of that represented by the manufacturer or that its surface had deteriorated due to detergent residues, wear and tear or whatever.
Judge David Reid had no difficulty in concluding that the floor surface represented an unacceptable risk.
When it came to assessment of quantum, orthopaedic surgeon David Morgan thought that the absence of contemporaneous medical treatment and compensation claim in the context of continuing to work for at least 2 years following the incident, all flagged that Jillian’s version of events was false.
Wallace’s problems were however corroborated by a sister-in-law and a close friend. His Honour readily accepted – despite “misgivings about the plaintiff’s evidence” – that the ankle symptoms all emanated from the 2008 injury.
Vascular surgeon Dr John Quinn of the PA Hospital concluded that because immobilisation is a high-risk factors for the development of a DVT and pulmonary embolism in an obese patient, such condition arose because the back slab was applied – rather than merely because Jillian was at times very obese.
Despite considering the plaintiff’s evidence of her complaints to be “excessive”, the fact that she had attempted suicide on at least 2 occasions due to pain, was clear evidence in judge Reid’s view, that Jillian had been seriously adversely affected by the injury.
For compensation for Work Claims, go to: Workers Compensation
He also accepted Dr Quinn’s evidence that the two embolisms were both causally connected to the original 2008 event.
In his honour’s view, remedial surgery performed by Dr Jeff Peereboom had been so successful, Jillian would be likely to work to some extent in the future.
On that basis, he pared her ask from $1.18 million to just $481k including general damages of $50k that took into account that she required anticoagulant medication indefinitely and past loss of wages of $202k.
The future economic loss though was a little over $80k – well below the amount contended for by even by the defendant of $250k.