Aitken v VWA
[2024] VCC 1694
•6 December 2024
Will will will
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-06853
| Jobeena Aitken | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Her Honour Judge Sanger | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2024 | |
DATE OF JUDGMENT: | 6 December 2024 | |
CASE MAY BE CITED AS: | Aitken v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1694 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the cervical spine – paragraph (a) and paragraph (c) claim - pain and suffering and loss of earnings – whether 40 per cent or more loss of earning capacity for cervical spine injury – dispute whether permanent severe mental or behavioural disturbance or disorder – whether capacity for suitable employment
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s325(2), s335
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17; Ryan v Victorian WorkCover Authority [2023] VCC 2300
Judgment: Leave granted to the plaintiff to proceed with a claim for damages for pecuniary loss and pain and suffering arising from the injury to her cervical spine sustained on 27 September 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr A Kleiman | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr B McKenzie | Russell Kennedy |
HER HONOUR:
Introduction
1The plaintiff in this proceeding, Ms Jobeena Aitken, is forty-three years old. She is divorced and has two sons, one of whom lives with her and the other who lives with his father. She has a broad employment history, including working as a Gaming Room Attendant at a local RSL, and then as a Disability Support Worker.[1]
[1]Exhibit P1, Plaintiff’s Further Amended Court Book (“PFACB”) 8 at paragraph [4]
2In or around 2016, she worked as a Reintegration Facilitator with the Department of Justice & Community Safety (“the employer”) at the Hopkins Correctional Centre in Ararat.[2]
[2]Transcript (“T”) 5, Line (“L”) 3-5
3Then in September 2018, she transferred to a role as a Program Facilitator at the Rivergum Residential Treatment Centre, a post sentence residential facility for violent and serious sex offenders.
4The transfer to Rivergum required her to undergo a four-week training program. The second week of this training program involved tactical training, which included both being hit and blocking hits.
Injury to the neck
5During the tactical training on 27 September 2018, Ms Aitken believed that the co-worker she was partnered with was hitting her incorrectly, including hitting her on the top of her head. Although she tried to cease participating, the instructor told her to continue. She subsequently received further blows to the head, causing injury to her neck and her spine (“the incident”).[3]
[3]Exhibit P1, PFACB 8-9 at paragraph [8]
6There is no dispute that the incident happened, or that it caused injury to Ms Aitken’s neck.
Events after injury
7Following the incident, Ms Aitken sought conservative medical treatment. She otherwise continued to work full-time modified duties, excluding client contact.[4]
[4]Exhibit P1, PFACB 9 at paragraphs [10]-[11]
8In or around October 2018, because of ongoing neck pain, Ms Aitken was referred to Mr Morris, a neurosurgeon. He recommended a C5/C6, C6/C7 anterior cervical discectomy and fusion, which she had on 15 March 2019.[5]
[5]Exhibit P1, PFACB 9 at paragraphs [12]-[13]
9Ms Aitken was off work for about six weeks after the surgery before she returned to work on reduced hours. Over a period, she increased back to full-time hours performing normal duties, including client contact.[6]
[6]Exhibit P1, PFACB 9-10 at paragraph [13]
10Despite returning to normal duties, Ms Aitken continued to have neck symptoms and pain.[7] She was referred again for specialist assessment, this time to Mr Cunningham, an orthopaedic surgeon, for a second opinion regarding her ongoing symptoms.
[7] Exhibit P1, PFACB 9-10 at paragraph [13]
11Mr Cunningham first saw Ms Aitken on 11 March 2021. He found that there was a non-union following the surgery and recommended further surgery. This request was initially denied by the WorkCover insurer. It was later approved following review by the medical panel.[8]
[8]Exhibit P1, PFACB 10 at paragraph [14]
12The employer withdrew Ms Aitken’s client contact duties after she informed them that she would require further surgery.[9] She continued to work full-time but found sitting for extended periods caused an increase in her neck pain.[10] She consequently asked her employer to reduce her hours to part-time to allow her to manage her symptoms.[11]
[9]Exhibit P1, PFACB 11 at paragraph [15]
[10] T46, L18-23
[11] T46, L22-23
13Ms Aitken’s mental health deteriorated while waiting for the second surgery to be performed, and she had some time off work in April 2021.[12]
[12]Exhibit P1, PFACB 11 at paragraph [16]; PFACB 73
14The employer withdrew their offer of suitable employment from Ms Aitken in July 2021, on the basis that Ms Aitken was unlikely to be able to return her pre-injury role in the foreseeable future.[13]
[13] Exhibit P1, PFACB 298
15There was a considerable delay and period off work until further surgery was approved. On 9 August 2022, Ms Aitken underwent further surgery, this time with Mr Cunningham, by way of a posterior cervical fusion and decompression surgery.[14]
[14]Exhibit P1, PFACB 10 at paragraph [17]; PFACB 30
16Ms Aitken was off work for over a year after the second surgery. She was unable to return to her pre-injury employment and her employment was terminated.
17Then in October 2023, Ms Aitken commenced employment with Box Hill TAFE as a Koori Support Officer and undertook work at two prisons, Karreenga Prison and Metropolitan Remand Centre (MRC). She obtained this employment with the assistance of IPAR, a provider of occupational rehabilitation and job seeking services.[15] She worked on a casual basis, working approximately 30 hours per week across four days (Mondays, Tuesdays, Thursdays and Fridays).[16] She needed to take Wednesdays off to address the increase in pain in her neck.[17] She was reliant on medication, such as Lyrica, Palexia and Amitriptyline, to be able to work.[18]
[15] Exhibit D1, Defendant’s Further Further Amended Court Book (“DFFACB”) 122; T6, L12-17
[16]T23, L17-20
[17] T24, L7-8
[18]Exhibit P1, PFACB 15 at paragraph [6]; T6, L26-31
18In March 2024, during her employment with Box Hill TAFE, she was assaulted by an inmate and was knocked unconscious (“the assault”). She returned to see Mr Cunningham after the assault and was advised by him that it had not negatively affected her cervical fusion.[19]
[19]Exhibit P1, PFACB 235
19Following the assault, Ms Aitken had about a week off work. She was then certified as having a capacity for employment, subject to taking precautions until she fully recovered.[20]
[20] Exhibit D1, DFFACB 130
20Box Hill TAFE lost the tender to conduct the prison programs to Federation University in June 2024. Ms Aitken was advised by Box Hill TAFE that her casual employment would end on 30 June 2024, although she was not required to attend in the last week of June 2024.[21]
[21]T27, L29-31; T28, L1
21Ms Aitken has not worked since June 2024. Consistent with her attitude to work, despite a neck injury requiring two operations, she has continued to look for work, including a recent application for a position of Remand Program Facilitator[22] with the employer.
[22] T32, L24-28; Exhibit D1, DFFACB 181
22None of what I have set out so far is really in dispute.
This proceeding
23Against that background, this is a “serious injury” application by Ms Aitken pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
24Ms Aitken claimed to have suffered a “serious injury” on the basis that she has a permanent serious impairment or loss of body function to her cervical spine under sub-paragraph (a), and a permanent severe mental or behavioural disturbance or disorder under sub-paragraph (c).[23]
[23]T4, L15-16
25The application was conducted in the ‘usual way’. The parties tendered affidavits, medical reports and documents from court books. Ms Aitken gave oral evidence.
26I have considered the affidavits, the oral evidence of Ms Aitken at the hearing and the evidence of the experts tendered at the hearing. I shall refer to the evidence to the extent necessary to explain the reasons for my decision.
27Further, the legal principles are well known and are broadly agreed between the parties.
What is in dispute
28It is perhaps no surprise, given that Ms Aitken has had two significant neck operations and an incomplete resolution of symptoms, that the defendant conceded that Ms Aitken had impairment consequences that met the test of “very considerable” such that she was entitled to leave for her pain and suffering in connection with her paragraph (a) case.
29But the defendant disputed that Ms Aitken had a 40 per cent or more loss of earning capacity because of her cervical spine injury, and thus was entitled to leave to proceed on that basis.
30Therefore, regarding the neck injury, the issue for consideration is whether Ms Aitken has established an entitlement to commence a proceeding for pecuniary loss damages.
31However, with respect to the paragraph (c) application, all issues were in dispute. The defendant disputed that the plaintiff had a psychological condition that was “serious”.
Legal principles, credit and the stoic plaintiff
32Because the defendant conceded pain and suffering “serious injury” for the neck injury, the proceeding is really a contest as to whether the plaintiff has demonstrated the requisite loss of earning capacity to commence a claim for pecuniary loss damages.
33Before discussing the evidence, it is convenient to set out the relevant legal principles.
34But before doing so, it is also convenient to note that it is unnecessary to set out all the evidence because the parties focussed on the issue of pecuniary loss. I have considered the evidence about Ms Aitken’s ongoing pain and suffering impairment consequences, some of which are also relevant to the question of pecuniary loss.
35Further, I also note that the defendant did not seek to impugn the plaintiff’s credit. Having had the benefit of her oral evidence, I am not surprised that this is not a credit case. She gave her evidence in a clear and forthright manner. Consistent with that, there is no suggestion in the medical evidence of her seeking to exaggerate or embellish her symptoms. In fact, on my assessment, the opposite is the case. Perhaps to some extent she has been her own worst enemy by returning to work while still experiencing significant symptoms related to her neck injury. I consider that she can be described as a ‘stoic’[24] and as has been noted, it would be wrongheaded to disregard her stoicism in an assessment of her impairment consequences.[25]
[24]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, [13]
[25]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [3]
Test for pecuniary loss
36In the context of the summary as already set out, I next set out the relevant legal principles regarding pecuniary loss serious injury, which are not in dispute.
37To establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and at least “very considerable”, as per the narrative test set out in s325(2)(b) and (c) of the Act.
38The defendant accepted that Ms Aitken could not return to her pre-injury employment, consistent with my analysis of the whole of the evidence.
39The defendant did not concede that the inability to return to pre-injury employment was a “very considerable” consequence, but neither did it forcibly argue against that proposition. I consider that the inability to return to full and unrestricted work is a “very considerable” consequence to Ms Aitken. Therefore, I conclude the narrative test is satisfied.
40Having established a “very considerable” loss of earning capacity consequence, Ms Aitken must next satisfy the statutory formula as contained in sub-ss325(2)(e), (f) and (g) of the Act, namely whether she has the requisite “40 per cent loss” as measured by those provisions. It is this aspect of the proceeding that was contested.
41To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings);
(b) the gross income the plaintiff was earning or was capable of earning “during that part of the period within three years and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury” earnings).[26]
[26]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at [70]
42The parties agree that the plaintiff has an “after injury” earning capacity. The dispute is what now constitutes “suitable employment” and what she can earn “after injury”.
Ms Aitken’s evidence
43Ms Aitken was cross examined about what she had said in her affidavits and what she had told the doctors about her work capacity “after injury”.
44Ms Aitken’s evidence can be summarised as follows:
(a) She believes that she would have worked her way up to an improved classification with the employer if she had not been injured. Her performance had been good, and she was achieving the expectations the employer had placed on her. She had hoped to become a specialist case manager. She loved the role she had with the employer. Her work with Box Hill TAFE was not like her pre-injury role. It saddened her she was unlikely to return to her pre-injury role.[27]
[27] Exhibit P1, PFACB 17-18 at paragraphs [30]-[31]
(b) She could not work 30 hours a week at Box Hill TAFE anymore as due to the increasing pain she was experiencing from the prolonged computer work and the 90 minute drive to work and back each day.[28] She was exhausted at the end of each working week.[29]
[28] Exhibit P1, PFACB 15 at paragraph [9]
[29] Ibid; T46, L11-14
(c) She did not ask her treating general practitioner, Dr Gamage, to reduce her hours to cope with her increasing pain at Box Hill TAFE. Rather, she requested an increase in pain relieving medication and was prescribed a higher dosage of Lyrica.[30]
(d) She thought that she had been too ambitious in persisting with her work at Box Hill TAFE, but had loved her pre-injury role and helping indigenous people. She wanted to return to work and feel useful again.[31] She had a financial imperative to work, in order to afford her living expenses such as rent.[32]
(e) MRC was an all-male, maximum security prison. There were frequent assaults in the facility, usually against staff members. This included Ms Aitken.[33]
(f) Following the assault in March 2024 she was fearful of further assaults, and that she would not be able to see an offender coming.[34] She started having panic attacks.[35]
(g) She moved from Ararat to Leopold in 2022. She rented out her home in Ararat and rented in Leopold[36] to be closer to her cousin, who had been a great support to her.[37] She moved back to her own home in Ararat in August this year because she could not afford to stay in Leopold.[38]
(h) She has constant neck pain. She takes Lyrica 150mg morning and night, Amitriptyline 25mg every night and Norflex 100mg as required. She took Palexia until approximately March 2024 when it was replaced with Norflex by Dr Velayudhan, a pain management physician.[39]
(i) She continues to see Dr Gamage and her psychologist, Ms McColl. Her pain management treatment was paused when she moved back to Ararat, however she hopes to continue with this via telehealth (as her clinicians are in Geelong). She is waiting to hear if the request for this to occur has been approved by the WorkCover insurer.[40]
(j) She has disturbed sleep.[41]
(k) Certain movements and activities increase her neck pain, such as heavier lifting, repetitive movements, prolonged sitting or standing, reaching overhead and fixed neck positions.[42]
(l) She hopes to be able to obtain a part-time job in the future that suits her capabilities.[43]
[30] T45, L2-8
[31] Exhibit P1, PFACB 15 at paragraph [12]
[32] Exhibit P1, PFACB 15 at paragraph [8]
[33] T44, L23-30; T45, L1
[34] T36, L29-31; T37, L1-2
[35] Ibid
[36] Exhibit P1, PFACB 11 at paragraph [20]
[37] Exhibit P1, PFACB 218
[38] T33, L12-18; T44, L8-9
[39] Exhibit D1, DFFACB 141
[40] T43, L22-24
[41] Exhibit P1, PFACB 16 at paragraph [18]
[42] Exhibit P1, PFACB 16 at paragraph [17]
[43] T38, L23-24
45As mentioned, I consider Ms Aitken to be well motivated to return to work and a stoic. Having considered her evidence in the context of the medical evidence about work capacity, I accept her evidence that “after injury” she hopes to be able to obtain part-time employment, which, in my assessment, is the limit of her work capacity “after injury”.
The relevant expert evidence of physical injury
46Next, I shall set out the relevant evidence about Ms Aitken’s current “after injury” work capacity. Some of the experts provided several reports about her neck injury and related impairment consequences, but it is useful to focus on the more recent medical opinions, where Ms Aitken has undergone two lots of neck surgery.
47I shall first set out the relevant evidence of physical injury, and then the evidence about the psychiatric injury, starting with treating practitioners.
Dr Chamika Gamage, treating general practitioner
48Dr Gamage said that Ms Aitken could perform light duties, while taking precautions to not aggravate her neck pain. She said that the activities Ms Aitken might avoid included heavy lifting, repetitive neck movements, prolonged sitting or standing and activities involving overhead reaching or bending of the neck.[44] She noted that modified duties had been arranged in Ms Aitken’s workplace, including allowing for rest breaks, and that training was another option.[45]
[44] Exhibit P1, PFACB 172
[45] Exhibit P1, PFACB 172
49Dr Gamage noted that Ms Aitken’s surgical site looked “well and with no complications”[46] following the workplace assault in March 2024. She said that Ms Aitken’s pain was exacerbated by certain movements and activities, particularly after the assault. Dr Gamage did not think that Ms Aitken would deteriorate further. She placed reliance on Mr Cunningham’s opinion that the surgery had been successful, even though Ms Aitken had a recent fall[47] and assault. She did not express a view on the number of hours Ms Aitken could work per week.
[46] Exhibit P1, PFACB 171
[47] I understood the ‘fall’ to be the fall connected with the assault.
50She said that Ms Aitken’s mental health issues had worsened after the assault of March 2024.[48] She noted that Ms Aitken also had depressive and anxiety symptoms following the initial injury on 27 September 2021.
[48] Exhibit P1, PFACB 171
51Overall, Dr Gamage’s opinions support a conclusion that Ms Aitken now has a capacity for light modified duties. She placed significant physical restrictions on such work and while she did not expressly place a limit on the hours, in the context of the physical restrictions prescribed, I consider her opinion supports a conclusion of part-time work.
Mr John Cunningham, orthopaedic spine surgeon
52In his report of 20 July 2023, Mr Cunningham noted there was a risk of adjacent segment degeneration in the future, and that this was more likely to occur than not.[49] He also said that she would have a capacity for sedentary duties in the future.[50] However, in his correspondence of 10 August 2023 to Dr Gamage, he said that there was no need to restrict her activities in any way.[51]
[49] Exhibit P1, PFACB 233
[50] Exhibit P1, PFACB 233
[51] Exhibit P1, PFACB 234
53Mr Cunningham saw Ms Aitken following her assault at work in 2024. In correspondence to Dr Gamage, he wrote that he had advised Ms Aitken that her fusion was solid and there was no need to be concerned about its stability. He noted that she had been experiencing pain for a long period of time and the duration of that pain, as well as the medication she had been taking, would take some time to “come down from”.[52] He was encouraged to see that she was seeing a pain physician and reducing her dosage of Palexia. He was also pleased to see that she was back at work. He noted that driving for 90 minutes was going to make her neck a bit more painful that it otherwise would be.[53]
[52] Exhibit P1, PFACB 235
[53] Exhibit P1, PFACB 235
54Mr Cunningham’s opinions are relatively optimistic in his capacity as a treating surgeon that Ms Aitken’s fusion surgery has been successful and that the fusion is sound. But he is also cautious about the risk of adjacent segment disease, and in his most recent report he noted ongoing symptoms and restrictions, which I conclude also support a finding that the plaintiff will be restricted for employment in the future.
Dr Akilan Velayudhan, pain specialist
55Dr Velayudhan is a pain specialist to whom Ms Aitken was referred for assessment.
56Dr Velayudhan said in a report dated 20 March 2024 that he thought Ms Aitken would benefit from a pain management program and sought funding approval from the WorkCover insurer. He suggested that she use Norflex, particularly when the pain worsened towards the end of the week, to see whether this would relieve some of her physical distress.[54]
[54] Exhibit D1, DFFACB 141
57Dr Velayudhan’s opinions are relatively limited, but it is relevant that he considered the use of a strong pain killer to be an ongoing requirement. Further, his comments about worsening pain at the end of the working week support the conclusions I have already expressed.
Ms Jackie Collins, IPAR, vocational rehabilitation consultant
58As mentioned, after the incident Ms Aitken was referred to IPAR for return to work assistance.
59Ms Collins is a vocational rehabilitation consultant with IPAR. She identified the following positions as suitable for Ms Aitken based on her transferable skills, experience, education and qualifications:[55]
(a) Employment Consultant – Youth Offenders;
(b) Youth Worker – Support;
(c) Social Worker;
(d) Aged Care Support Worker;
(e) Disability Support Worker;
(f) Hospitality Worker; and
(g) Gaming Attendant.
[55] Exhibit D1, DFFACB 168-171
60Ms Collins noted that further investigation may be required to determine the suitability of the identified roles considering Ms Aitken's current work capacity and any applicable restrictions to returning to employment that may be available.[56]
[56] Exhibit D1, DFFACB 116
61There is no real suggestion that Ms Aitken does not have the intellectual capacity to perform the jobs identified by Ms Collins. The crux of the issue is how many hours per week and at what rate of pay Ms Aitken can earn “after injury”.
Medico-legal evidence of physical injury
Dr Joseph Slesenger, occupational physician
62Dr Slesenger noted in a report dated 7 June 2024 the risk of developing adjacent segment disease due to the fusion procedure, just as Mr Cunningham had. He thought Ms Aitken’s symptoms were more likely to deteriorate than improve.[57]
[57] Exhibit P1, PFACB 81
63He thought that Ms Aitken retained a capacity to work with the following restrictions:
(a) No push, pull, carry or lift over five kilograms;
(b) No prolonged static postures;
(c) Avoid sustained forward reaching; and
(d) Avoid over shoulder reaching.
64He said that she had a capacity for work, working eight hours a day, four days a week (avoiding more than two consecutive days),[58] working up to 32 hours a week.[59]
[58]I note that Dr Slesenger’s report states “avoiding no more than two consecutive days”, however, I have taken this to mean avoiding more than two consecutive days, as it is consistent with the body of his report
[59]Exhibit P1, PFACB 90
65When asked to comment on the positions that had been identified by IPAR as suitable, he said that the positions of Employment Consultant – Youth Offenders, Youth Worker – Support, or Social Worker were suitable, working with the restrictions outlined above for up to 32 hours a week.[60] He did not think the position of Disability Support Worker was suitable because the job tasks were likely to require manual handling outside of Ms Aitken’s capacity limits, particularly those involved with personal care. He also thought the roles of Aged Care Support Worker, Hospitality Worker and Gaming Attendant were outside her capacity limits and thus not suitable.[61]
[60] Exhibit P1, PFACB 89
[61] Exhibit P1, PFACB 91
66Following his review of Ms Aitken on 3 June 2024, he said that her symptoms had deteriorated following the head injury she sustained in the assault. He further recorded that her symptoms had not returned to their pre-injury level, although he was optimistic that they would.[62] He did not think the work at Box Hill TAFE was suitable because of the risk of further assault.[63]
[62] Exhibit P1, PFACB 82
[63] Exhibit P1, PFACB 82
67I consider Dr Slesenger’s expert opinion as an occupational physician to be consistent with the conclusions I have already expressed.
Dr René Dupuche, consultant physician
68Dr Dupuche said that it was essential that there be no further traumatic events applied to her spine, and that the suitability of any employment option depended upon the extent to which it was protective of her cervical spine.[64]
[64] Exhibit D1, DFFACB 71
69He thought Ms Aitken could return to work in modified or alternative duties, and to normal hours following a graduated introductory period. He said that suitable employment for Ms Aitken would have the following characteristics:
(a) Normal hours and breaks in protective work following an introductory period;
(b) No sitting or standing restrictions;
(c) Bending and lifting restricted if impacting on the cervical spine; and
(d) Pushing and pulling restricted due to impact on the cervical spine.[65]
[65] Exhibit D1, DFFACB 72
70He was asked to comment on the suitability of the positions identified by Ms Collins. He advised that the following positions were suitable:
(a) Employment consultant - Youth Offenders;
(b) Youth Worker - Support;
(c) Social Worker; and
(d) Disability Support Worker.
71He did not believe the roles of Aged Care Support Worker, Hospitality Worker or Gaming Attendant were suitable given the requirements of these roles.[66]
[66] Exhibit D1, DFFACB 73
72Dr Dupuche’s opinion is not dissimilar to Dr Slesenger, but for the reasons expressed, I prefer Dr Slesenger’s evidence about the need to break up the days of work and to limit hours “after injury” to 32 hours per week.
Dr Symon McCallum, pain physician
73Dr McCallum provided a report dated 17 June 2024. He noted that it may be best for her to work in an environment where she was not likely to be assaulted.[67]
[67] Exhibit P1, PFACB 66
Mr Timothy Gale, general and trauma surgeon
74Mr Gale said that she should not return to employment that required strenuous physical pursuits.[68]
[68] Exhibit D1, DFFACB 60
Evidence of psychological injury
75That completes a summary of the relevant evidence of physical injury. There is not much of a dispute in that evidence, apart form the number of hours Ms Aitken can now work.
76Turning next to the evidence of psychological injury.
Ms Gabrielle McColl, treating psychologist
77Ms McColl started treating Ms Aitken on 27 August 2019. At the time of writing her most recent report on 4 April 2024, Ms Aitken had seen her 76 times. She was thus able to provide a very detailed history of Ms Aitken’s mental health symptoms and injury.
78She noted that Ms Aitken still experienced physical pain daily, which impacted on her mental state. Ms Aitken had started a new job but needed to adjust to the demands (physically and psychologically) of the job, given she had not been in a workplace since May 2021.
79She suggested that psychology treatment would be a long-term proposition given the ongoing impact of her physical injury on her mental health. She noted that Ms Aitken’s psychological injury had stabilised.
80She said that Ms Aitken reported being exhausted at the end of each day and her ability to cope with pain was compromised. She opined that Ms Aitken was fortunate her four days per week had been able to be structured to have Wednesdays as non-work days. She said that Ms Aitken had hoped to use this day to catch up with personal matters such as housework and appointments, but instead she used that day to recuperate from the previous two days’ work. She said that Ms Aitken reported that her sleep was still not back to her pre-injury amount, and that Ms Aitken claimed this was mostly due to soreness.
81She said that if Ms Aitken’s physical state did not deteriorate, she believed her mental state prognosis should be stable.
82She noted that Ms Aitken was struggling with the physical requirements of her work with Box Hill TAFE given her reduced stamina, but that Ms Aitken was willing to persevere in the role.
83She said that one of the most upsetting elements for Ms Aitken had been the impact on her two teenage sons. She was devastated that she could no longer be the mother she wanted to be. She said her pain did not stop and while Ms Aitken tried to protect her sons from seeing her in pain or being impacted by it, there were times when she could not hide its effects. They have also needed to help more around the house and make sacrifices in response to Ms Aitken’s condition.
84Since the second surgery, Ms Aitken had been able to socialise more. She had some confidence that pain was manageable enough to allow her to go out without her having to cancel at the last minute or leave soon after arriving. She said that moving to Geelong had helped Ms Aitken make a fresh start and leave the sad memories of how her injury had impacted her life in Ararat behind.[69]
[69] Exhibit P1, PFACB 218
85She diagnosed Ms Aitken with an Adjustment Disorder and Major Depressive Disorder.[70]
[70] Exhibit P1, PFACB 214
86While Ms McColl is obviously not an expert for the purposes of the neck injury, the evidence she had recorded as to Ms Aitken’s ongoing physical complaints and impairment restrictions, obtained over 76 consultations is compelling for a conclusion that Ms Aitken remains plagued by neck pain and significantly restricted for work.
Dr Matthew Tagkalidis, psychiatrist
87Dr Tagkalidis concluded that Ms Aitken was suffering from a chronic Adjustment Disorder with depressed mood, relevant to the claimed injuries. There were no significant pre-existing psychiatric issues of relevance. The syndrome did not justify a diagnosis of Major Depressive Disorder. He thought that her prognosis was guarded, and that if her physical condition were to deteriorate over time, it was likely her emotional state would also deteriorate. He thought that her antidepressant medication should continue indefinitely, and the dosage increased to at least 75mg nightly at her General Practitioner’s discretion. He thought that further treatment should include ongoing fortnightly to monthly sessions as needed with her treating psychologist.
88In a later report, and after being provided with Dr Pokharel’s report referred to below, he said that he was unable to comment on her current work capacity given that it had been several months since he had assessed her.[71]
[71] Exhibit P1, PFACB 301
Dr Anupam Pokharel, consultant psychiatrist
89Ms Aitken saw Dr Pokharel in September 2023, just prior to Ms Aitken commencing employment with Box Hill TAFE. He diagnosed her with Major Depressive Disorder, recurrent with anxiety-moderate severity, with some symptoms of psychological traumatisation. She suffered from occasional intrusive memories of her physical injury at work. She had concentration difficulties. He believed that she needed treatment from a psychiatrist, with an adequate dose of pharmacotherapy. He thought she was undertreated for depression.
90He did not believe that she could return to her pre-injury duties and hours. He noted that this required physically restraining clients when necessary, which would be likely to exacerbate her psychiatric condition, including the symptoms of psychological traumatisation.
91He believed that she had a capacity for employment from a psychiatric perspective at reduced hours, nominating 20 hours a week as an example,[72] within the limits of her physical capacity.
[72] Exhibit P1, DFFACB 100
92However, he noted that the combined physical and mental health condition would significantly reduce her work capacity.[73]
[73] Ibid
93He said that from a psychiatric perspective, Ms Aitken had a capacity for any of the positions identified by IPAR, however her combined physical and mental health condition would significantly reduce her work capacity.[74]
[74] Exhibit P1, DFFACB 102
94He was of the view that her psychiatric condition remained undertreated.[75]
[75] Ibid
Dr Dennis Handrinos, consultant psychiatrist
95Dr Handrinos believed Ms Aitken was suffering from a recurrence of a Major Depressive Disorder.[76]
[76] Exhibit D1, DFFACB 33
96At the time of assessment, he did not believe that Ms Aitken had a capacity to work, because of both her psychological state and pain.[77]
[77] Exhibit D1, DFFACB 34
97He thought Ms Aitken would decline if treatment were ceased.
98Despite her treatment, he thought that Ms Aitken’s Major Depression remained undertreated. He said that consideration should be given to referral to a psychiatrist, and that there needed to be a review of her antidepressant medication, which was currently sub-optimal.
99When asked whether her treatment could cease with a discharge to self-management, he said that this could not proceed in the foreseeable future and thought that she should be reviewed again in nine to 12 months.
100He thought a psychological condition would also contribute to her inability to work in any capacity at that time.
Dr Dush Shan, consultant psychiatrist
101Dr Shan diagnosed Ms Aitken as experiencing a recurrence of Major Depressive Disorder, which had some impact on her occupational activities but not on her daily living activities.[78] It was not likely to resolve with or without treatment.
[78] Exhibit D1, DFFACB 82
Submissions
Defendant
102Counsel for the defendant submitted that Ms Aitken had a capacity for suitable employment, as evidenced by:
(a) The work she was performing with the employer after the September 2018 incident up until the time she ceased in March 2021;[79]
[79] T64, L27-30; T66, L7-10
(b) Her employment as a Koori Support Officer with Box Hill TAFE;[80]
(c) Her intention to apply for the role of Koori Tutor with Federation University, prior to learning that she did not have the requisite qualification;[81]
(d) Her recent application for the Remand Program Facilitator role with the employer;[82]
(e) The positions identified as suitable in the IPAR Vocational Planning Report, those being:[83]
(i)Employment Consultant - Youth Offenders;
(ii)Youth Worker - Support;
(iii)Social Worker;
(iv)Aged Care Support Worker;
(v)Disability Support Worker; and
[80] Ibid
[81] T60-61, L 1-3, 24-31
[82] T61, L4-17
[83] T62, L9-20; Exhibit D1, DFFACB 168-170
(f) Her discussion with her psychologist, Ms McColl, about exploring work as an Investigation Officer.[84]
[84] T61-62, L1-8, 18-31
103Counsel for the defendant further submitted that Ms Aitken’s capacity for suitable employment was not productive of a 40 per cent or more loss of earning capacity: that is, she had retained a capacity to earn more than 60 per cent of her without-injury earnings.[85]
[85] T65, L5-12
Plaintiff
104Counsel for Ms Aitken submitted that although she had a capacity for suitable employment, her capacity was limited by the restrictions outlined in the medical evidence, particularly that of Dr Slesenger.[86]
[86]T74, L7-9, 24-31
105Accordingly, Counsel submitted that the only suitable positions were that of Employment Consultant – Youth Offenders, Youth Worker – Support, and Social Worker.
106It was submitted that all these jobs were productive of a 40 per cent or more loss of earning capacity.
Analysis of the evidence regarding suitable employment
107Ms Aitken has made commendable efforts to return to suitable employment in prisons as a Koori Support Officer following her injury. She persisted with this work in the face of increasing pain and exhaustion. She is still looking for work.
108The favourable view I formed about Ms Aitken’s evidence was relevant to my conclusion about the roles that would constitute suitable employment, and the likely number of hours Ms Aitken could work per week in suitable employment in the foreseeable future.
109Having reviewed the medical evidence, in the context of the evidence from Ms Aitken, I prefer the opinion of Dr Slesenger to the other practitioners with respect to the question of suitable employment and hours of employment. I have formed this view for the following reasons:
(a) Dr Slesenger was the only occupational physician to examine Ms Aitken and provide expert opinion. While Dr Dupuche provided his opinion regarding the suitability of the identified roles, his expertise is that of a physician, rather than an occupational physician. Nonetheless his opinion aligns with Dr Slesenger on the suitability of the roles of Employment Consultant – Youth Offenders, Youth Worker – Support, or Social Worker, but he also thought the role of a Disability Support worker would be suitable. Regarding the role of Disability Support Worker, I prefer Dr Slesenger to Dr Dupuche given Dr Slesenger’s expertise and consideration of the job tasks likely to be beyond her capacity limits.[87]
(b) Dr Slesenger’s opinion on the permanent restrictions Ms Aitken has for employment accords with the restrictions expressed by Dr Gamage. As Ms Aitken’s treating general practitioner, Dr Gamage knows Ms Aitken well and is uniquely placed to opine on her restrictions for employment.[88]
(c) Dr Slesenger’s opinion also accords with the opinions of Dr McCallum and Mr Gale regarding avoiding employment where Ms Aitken is likely to be assaulted or that requires strenuous physical pursuits. He was concerned about her deteriorating symptoms following the assault in March 2024. While the fusion may have been solid, as found by Mr Cunningham, Ms Aitken’s evidence was that her symptoms were deteriorating. The need to address the deterioration in her symptoms was supported by her referral to pain management, initially suggested by Mr Cunningham and then endorsed by him following his review of her on 21 March 2024.[89] This restriction is significant, as Ms Aitken’s evidence, which I accept, was that she was exposed to frequent risk of assault in the work she was undertaking in the prison system.[90]
(d) Both Mr Cunningham and Dr Slesenger noted the likely prospect of deterioration in Ms Aitken’s condition in the future due to the risk of adjacent segment degeneration. However, Dr Slesenger’s opinion was that Ms Aitken will need to manage her pain symptoms through restrictions on the type of work being performed and the hours of work being undertaken into the foreseeable future, which was consistent with the increasing pain Ms Aitken was experiencing at work and her need to undergo pain management for her symptoms.
(e) In his correspondence dated 21 March 2024, Mr Cunningham expressed optimism about the progression of Ms Aitken’s pain. However, I accept Ms Aitken’s evidence and find that she was struggling with her work at Box Hill TAFE because of her pain, that she increased her pain medication to remain in the role[91] and that she needed Wednesdays off to address her increased pain.[92] I find that this evidence is consistent with the restriction of working no more than two consecutive days, as stated by Dr Slesenger, to allow Ms Aitken to manage her pain.
(f) The difficulties Ms Aitken described, such as sitting at a computer for prolonged periods, driving 90 minutes each day, and needing Wednesdays off to address her increasing neck symptoms, accords with the restrictions outlined by Dr Slesenger.[93]
[87] Exhibit P1, PFACB 91
[88]Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17, [56]
[89] Exhibit D1, DFFACB 141; Exhibit P1, PFACB 233 and 235
[90] T44, L10-31
[91] T46, L11-14; Exhibit P1, PFACB 15 at paragraph [9]
[92] T24, L7-8
[93] See paragraphs 63 – 64 above
110Based on her evidence, and the evidence of the practitioners above, and in particular Dr Slesenger, I find that the work that Ms Aitken was undertaking through Box Hill TAFE as a Koori Support worker does not constitute suitable employment.
111Overall, I conclude that Ms Aitken is “after injury” fit for no more than 32 hours per week in “suitable employment”.
112I also conclude that the jobs endorsed by Dr Slesenger are the only “suitable employment” for Ms Aitken “after injury”
113I make the following observations and findings with respect to the other positions referred to by Counsel for the defendant as constituting suitable employment:
(a) The work she was performing with the employer after the September 2018 incident up until the time she ceased in March 2021
(i)The work that Ms Aitken undertook with the employer after 27 September 2018 is already set out.
(ii)Counsel for the defendant submitted that this work constituted suitable employment, relying on Ms Aitken’s evidence that she was meeting her Personal Development Plans, that her wages were increasing and that her tax returns from this period showed that she was earning in excess of the 60 per cent threshold.[94]
[94] T64, L27-31; T65, L1-8
(iii)Ms Aitken’s evidence was that work she was doing with the employer just prior to ceasing with them was increasing her pain. She said that she was required to sit at a computer and monitor residents for most of her shift, which increased her pain. She had asked for reduced hours as she could not sit for the time required.[95] She thought that she could now sit and work at a computer for an hour to an hour and a half.[96] She also said that she was no longer allowed on the floor with residents as the employer formed the view that if she was assaulted she would not be able to protect herself.
[95] T46, L19-23
[96] T47, L5-6
(iv)Considering this evidence, the evidence of Dr Slesenger and Dr Gale with respect to sitting restrictions, and the evidence of Dr Slesenger, Dr Dupuche, Dr McCallum and Mr Gale regarding needing to avoid work that involved the risk of further assault, I find that the work Ms Aitken was performing with the employer after September 2018 does not constitute suitable employment.
(v)I note that the employer withdrew their offer of suitable employment six days after Ms Aitken was certified unfit for work, stating that they had fulfilled their obligations to provide suitable employment, and it did not appear that Ms Aitken was likely to be able to return to her pre-injury role in the foreseeable future.[97] Considering that, I do not consider that the modified roles that Ms Aitken was undertaking with the employer after September 2018 represented realistic employment opportunities available on the open labour market for Ms Aitken to pursue.
[97] Exhibit P1, PFACB 298
(b) Koori Support Officer and Koori Tutor roles
(i)I have previously outlined my reasons for finding that the work as a Koori Support Officer at Box Hill TAFE was unsuitable.
(ii)However, I also accept Ms Aitken’s evidence and find that the role of Koori Support Officer would no longer be open to her as the role now requires a Diploma of Education that she does not possess.
(iii)While Ms Aitken prepared an application for the role of Koori Tutor[98] with Federation University (who had taken over the contract from Box Hill TAFE), she did not submit it when she learned that the role required a Diploma of Education.[99] This role was the same as the role she held with Box Hill TAFE.[100]
[98] T29, L2-6; Exhibit D1, DFFACB 174
[99] T30, L21
[100] T29, L17-22
(iv)Ms Aitken’s evidence was that she could not obtain a Diploma of Education given both the restriction for sitting at a computer and her inability to retain the information required for study.[101] While she later said that she would consider undertaking a course if it was part-time,[102] I find that it would still need to be capable of being undertaken in a manner consistent with her sitting restrictions and her ability to retain the requisite information while taking her pain medication. She has not explored whether it is possible to undertake further study, given how recently her employment with Box Hill TAFE ceased. However, she demonstrated a great deal of initiative and motivation to find and retain employment with Box Hill TAFE, particularly considering her increasing pain and the unsuitability of the role due to the risk of assault. I do not doubt, and I find, that as of today’s date Ms Aitken has made all reasonable efforts to participate with rehabilitation and retraining to obtain suitable employment.
[101] T22, L13-16; T30, L21-30
[102] T40, L13-14
(c) Her recent application for the Remand Program Facilitator role with the employer
(i)While Ms Aitken applied for a position with the employer in June 2024 as a full-time Remand Program Facilitator, her evidence was that she was hoping to secure an interview and discuss the possibility of part-time employment.[103] Ms Aitken had not heard from the employer about her application as at the date of the hearing. It is therefore not known whether the employer would have made a part-time role available to Ms Aitken, and if so on what terms.
[103] T33, L26-30
(ii)What is known is that when the employer last had an opportunity to retain Ms Aitken in a part-time role with modified duties, they were not able to accommodate her restrictions and terminated her employment. In the absence of any evidence to the contrary, it is hard to accept that the employer would have a different position today.
(iii)However, the only evidence before me was that Ms Aitken applied for a full-time role for which Ms Aitken was not suited, both on her evidence and the evidence of Dr Slesenger with respect to her hours of employment and the possibility of further assault.
(iv)I therefore find that this position was not suitable for Ms Aitken.
(d) Her discussion with her psychologist, Ms McColl, about exploring work as an Investigation Officer
(i)Ms Aitken and Ms McColl discussed whether the role of an Investigation Officer would be suitable at Ms Aitken’s last consultation with Ms McColl two weeks prior to the hearing. Ms Aitken’s evidence was that if a qualification was required, and the study could be undertaken part-time, she would investigate undertaking that qualification.[104]
(ii)These discussions were embryonic. While it is commendable that Ms Aitken and Ms McColl are exploring suitable employment options, this work would need to be consistent with the restrictions outlined by Dr Slesenger to constitute suitable employment. There was no evidence before me that it was. It was not a role that was identified by IPAR as being suitable. It was not raised by any other practitioner as representing suitable employment. As I must make findings as of today’s date, and as Ms Aitken does not possess the relevant qualification to consider a role as an Investigation Officer, I find that this role does not constitute suitable employment.
[104] T39, L28-31; T40, L1-20
Conclusions about “after injury” capacity for “suitable employment”
114Taking all the above into account, I find that Ms Aitken has a capacity for suitable employment as an Employment Consultant – Youth Offenders, Youth Worker – Support, or Social Worker, subject to the restrictions outlined by Dr Slesenger, including the limitation of working no more than 32 hours a week arising from the injury to her cervical spine.
Application of the hours per week to the suitable employment options
115It was agreed that Ms Aitken’s without-injury earnings were $106,892.69,[105] and that 60 percent of this figure was $64,135.61.
[105] T49, L23
116Counsel for the defendant submitted that I ought to accept the weekly median figures provided by IPAR, rather than the hourly rates referable to the relevant Awards as advanced by Flexi-Personnel to calculate Ms Aitken’s retained earning capacity. Counsel submitted that this was appropriate as it contemplated an averaging of the figures.
117I reject that submission.
118First, there was no evidence provided that median weekly full-time figures were appropriate to determine the part-time earnings of a worker for the roles identified by IPAR. While these figures would exclude outlier figures, they are also prone to being misleading as they fail to capture other important data that might influence a person’s wage, such as skills and years of experience, and the fact that Ms Aitken will need the flexibility as discussed in Dr Slesenger’s evidence, which I consider makes it more likely that she will not achieve median earnings.
119Compounding the possibility for error was that the figure provided was a full-time rather than part-time figure.[106] In order to arrive at an hourly rate, Counsel for the defendant had to divide the figure by 38 and apply it to the hours of work he submitted Ms Aitken could work in suitable employment. In the absence of evidence that this was an appropriate way to determine the rate, I cannot rely on it.
[106]Ryan v Victorian WorkCover Authority [2023] VCC 2300, [60]
120In contrast, the Flexi-Personnel figures are based on an hourly rate obtained from the relevant industrial instrument applicable to the roles that have been identified as suitable, exclusive of applicable penalty rates and allowances.[107]
[107] Exhibit P1, PFACB 96-97
121I therefore prefer the opinion of Flexi-Personnel to IPAR on the relevant hourly rates to be applied.
122Applying these figures, based on 32 hours per week “after injury” Ms Aitken can earn $49,137.92 gross per year as an Employment Consultant – Youth Offenders, $45,194.24 gross per year as a Youth Worker – Support and $51,816.96 as a Social Worker.
123As all these figures fall below the 60 per cent threshold, I find that Ms Aitken has a 40 per cent or more loss of earning capacity because of the injury sustained to her cervical spine on 27 September 2018.
Does Ms Aitken have a permanent severe mental or behavioural disturbance or disorder, and if so, is it productive of a 40 per cent or more loss of earning capacity?
124As I have concluded that because of her neck injury Ms Aitken may bring a common law proceeding for both pain and suffering and pecuniary loss damages, it is unnecessary to consider in detail the alternate claim based on a psychiatric injury.
125But for completeness and very much as an overview, I accept that because of the accepted neck injury, Ms Aitken developed a diagnosed psychiatric condition and that the condition persists. This conclusion is consistent with the whole of the relevant medical evidence as set out.
126But, on my assessment of the evidence, it is the physical injury which restricts Ms Aitken’s capacity for work and mostly impacts her ability to engage in daily activity.
127I accept the medical evidence is that Ms Aitken has an ongoing psychiatric condition that causes consequences to her. But on my assessment those consequences could be termed marked or significant, but fall below the 'very considerable' test and are not severe.
128Further, to the extent that the relevant experts expressed opinions about work capacity based on the psychiatric condition, unlike the medical evidence of physical injury, there is no recent opinion that places a limit on the number of hours that Ms Aitken could now work in 'suitable employment'.
129Therefore, I conclude that the alternate paragraph (c) claim is not made out.
Conclusion
130I find that Ms Aitken is entitled to leave to proceed with a claim for damages based on her pecuniary loss and her pain and suffering because of the injury to her cervical spine sustained on 27 September 2018.
131I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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