Aledo v Mars Australia Pty Ltd
[2010] VCC 1458
•7 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05467
| SHELLY ALEDO | Plaintiff |
| v | |
| MARS AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13, 14 and 15 September 2010 |
| DATE OF JUDGMENT: | 7 October 2010 |
| CASE MAY BE CITED AS: | Aledo v Mars Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1458 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application under s.134AB Accident Compensation Act 1985 – serious injury claimed for serious impairment to the function of the neck – leave granted for serious injury for loss of earning capacity and pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with | Zaparas Lawyers |
| Mr S Jurica | ||
| For the Defendant | Mr R Smith SC with | DLA Phillips Fox |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant from 2001 to December 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
5 The body function relied upon in this application is the neck.
6 The plaintiff relied upon three affidavits, sworn 23 July and 30 November 2009 and 5 July 2010, and an affidavit of William Michael Turner, sworn 30 November 2009. The plaintiff and Dr Hershel Goldman were cross-examined. In addition, both parties relied on medical reports and other material which is tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities,
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999;[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act: “An impairment or loss of a body function … shall not be held to be serious … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
9 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[4]
[4] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, at [44]
10 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments. As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB (38((c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5] ibid
[6] Ibid at [42]
11 The test for “serious”, as set out in paragraph (b) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
12 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issues
13 Counsel for the defendant submitted that the plaintiff has not sustained a “serious injury” as the consequences of the injury are not very considerable and are not more than significant or marked. Secondly, the injury is not permanent. Thirdly, she does not satisfy the statutory requirements for loss of earning capacity. Fourthly, the plaintiff’s credit is in issue.
The Plaintiff’s Evidence
14 In her first affidavit sworn 23 July 2009, the plaintiff deposes that:
•
She was born on 6 September 1968 in the Philippines. After secondary school she commenced a Bachelor of Science (Pharmacy) and upon completing the course she passed the Board Examinations and received a licence to practice as a pharmacist. From 1990 to 1995, she ran a health food store, but did not practice as a pharmacist.
•
In 1996, she married, moved to Australia with her husband and had her first child. In 1999, she had her second child.
•
In 2000, she worked in temporary short-term roles with various employees. In 2001, she was employed by the defendant as a process/production worker. She earned $12.85 per hour, plus 15 per cent loading on the afternoon shift. By December 2008, she was earning around $18.00 per hour, which was approximately $600 per week.
•
Her duties with the defendant included working on the conveyor belt of two machines. Sometimes she would be working with three other women and at other times she would be working on her own doing quality control.
•
On 11 April 2005, she was working on a machine and had to rapidly and repeatedly pull apart straps of liquorice. She found this difficult as the liquorice was sticky and required forceful, sharp movements to separate the strips. She was also required to lift a lot of packed boxes. On this day, she started to experience pain in her left shoulder and neck and she also developed a headache. The pain continued and she had approximately two weeks off work, during which time she was unable to drive.
•
On 17 April 2005, she attended her general practitioner, Dr Hershel Goldman, who prescribed Panadeine Forte. On 28 April 2005, she had a scan of her cervical spine and left shoulder. She was referred to Dr Mark Patrick, rheumatologist, who prescribed Panamax and Tramal and certified her fit for modified duties. She was referred to physiotherapy, and in early May 2005, she commenced treatment three times per week. On 14 July 2005, she had an ultrasound on her left shoulder.
•
On 30 May 2005, she returned to work for five hours per day. On 27 July 2005, her hours were increased to six hours per day. On 16 September 2005, her hours were reduced to four hours per day, because she was struggling. On 4 October 2005, her hours increased to six hours per day. On 16 October 2005, she was performing full-time hours on modified duties. On 13 February 2006, she returned to performing her normal duties. She was still experiencing pain in her neck and shoulder, but it had improved.
•
In March 2006, the defendant changed its ways of working and she was required to assist with heavy lifting. The change meant that she and two women had to pick reject products off the conveyer belt, position and push a tray to catch the reject products, and then pick up the tray (weighing approximately 7 to 8 kilograms) and stack it onto a pallet, 14 layers high. Usually the other two women she worked with would do the lifting for her.
•
On 23 July 2007, she was unable to swap with her colleagues and thus had to lift the pallets. The repetitive lifting on this day resulted in her shoulder flaring up. Following this incident, she took a couple of days off on sick leave. When she returned to work she undertook light duties. She had to take medication at work to keep going, which made it difficult to concentrate.
•
On 2 August 2007, she had a CT scan of her cervical spine and brain because she was having trouble sleeping due to persistent left-sided headaches. By November 2007, she was wearing a neck support, and found it difficult to get out of bed, to cook and to clean. At this time she was using a TENS machine daily and taking regular medication. She started to feel upset and frequently had suicidal thoughts. She felt that she was a burden on her children. On 10 December 2007, 23 January 2008 and 20 February 2008 she was given a cortisone injection into her left shoulder. Additionally, she was prescribed Panadol Osteo.
•
In March 2008, the defendant gave her the job of weighing pallets of trays, which required reaching up and looking down. This caused pain in her neck and shoulder. She was then transferred into the cylinder area, which involved opening boxes and feeding products onto a conveyer belt. Here, she was not provided regular breaks and not rotated with other staff. On 3 December 2008, she started work in the factory shop. She worked there until 9 December 2008, when she was sacked.
•
On 4 April 2008, she again attended Dr Patrick, who prescribed Prednisolone, referred her for an ultrasound and an MRI scan, recommended a trial of Endep for three months and referred her to Cedar Court for rehabilitation. Around this time Dr Goldman reduced her hours to five per day.
•
From 26 August 2008 to 31 October 2008, she attended a rehabilitation program, which taught her strategies to deal with the pain and included physiotherapy, occupational therapy, fitness/work conditioning and psychological counselling.
•
On 9 February 2009, she commenced a Pharmacy Assistant course at Dandenong TAFE. She struggled with a full-time load and, in consultation with Dr Goldman, chose to split the load over two semesters. As part of one of her subjects she was required to complete 90 hours of job training in a pharmacy. She started training for 6 hours per day in a pharmacy, but in consultation with Dr Goldman, chose to reduce her hours to 3 per day. The pharmacist she works for was understanding.
•
She has constant sharp pain in the back of her neck and into the top of her left shoulder, which can sometimes feel heavy. She frequently experiences headaches and numbness down her left arm.
•
Her injury has affected her family relationships. She no longer sleeps in the same bed as her husband and they barely have sexual relations any more. She often yells at her children and feels like she can no longer control them. She also avoids her friends because she feels unhappy.
•
At home her children and husband have taken over much the household responsibilities, such as cooking and cleaning. Sometimes her parents- in-law will cook for the family or they will get take away. She avoids heavy cleaning, like the bathroom. Her children help with the shopping and carry most of the heavy bags. She no longer feels confidant driving her car, particularly reversing.
•
She attends her general practitioner, Dr Goldman, regularly and sees her psychologist, Ms Angela Kay, every fortnight. Currently, she takes two Panadol Osteo tablets three times per day, one Tramal tablet twice per day, 400 milligrams of Brufen three times per day, and two Endep tablets before she goes to bed to assist with falling asleep. She usually wakes after two to three hours, at which time she may do some stretches. She often uses a heat pack. She attends hydrotherapy three times per week and does half an hour of walking exercises each day.
•
She would like to get to back to full-time work, but does not know if it would be possible. She is currently job-training at a pharmacy fours days per week for three hours per day. She feels that three hours is her limit at this stage, and even then she is working whilst in pain.
15 In her second affidavit sworn 30 November 2009, the plaintiff deposes that:
•
She continues to see Ms Kay fortnightly and sees Dr Goldman monthly. Her Endep dose has increased from 25 milligrams to 50 milligrams. She continues to take six Panadol Osteo tablets and two Tramal tablets per day. She now only takes Brufen if her neck is inflamed.
•
By reducing her job training hours from 4 hours to 3 hours per day, she was struggling to complete the requisite 90 hours. Because of her neck pain, her course co-ordinator agreed for her to complete 60 hours of job training instead. The pharmacist where she completed her job training said he could not offer her a permanent job unless she could work a 4- hour shift. She tried this once, but struggled.
•
She continues to feel depressed and has ongoing neck pain. She feels her relationship with her husband has continued to deteriorate. Her uncle recently arrived in Australia to assist with household chores, bills and looking after the children.
16 In her third affidavit, sworn 5 July 2010, the plaintiff deposes that:
• She continues to see Ms Kay fortnightly and sees Dr Goldman monthly. She no longer takes Endep, instead she takes Lyrica once per day. She continues to take six Panadol Osteo tablets and two Tramal tablets per day. She has had four anaesthetic injections into her left shoulder, which has helped to ease the pain in the left side of her neck and shoulder. She has seen Mr Drnda again to discuss the prospect of surgery and an MRI scan. She is still waiting on those results. • She recently saw a new psychologist, as she felt she was not getting anywhere with Ms Kay. • Since her previous affidavit, she feels that her neck pain has not improved. She continues to feel down about her ongoing pain and restrictions and cries every day. 17 In the affidavit of William Turner, sworn 30 November 2009, he deposes that:
•
He is the uncle by marriage of the plaintiff. He first met the plaintiff in 1997. The plaintiff used to be a very outgoing active person with a sense of humour and strong character. In 2003, he moved to the Philippines to live with the plaintiff’s auntie.
•
He became aware of the plaintiff’s injury when he visited her in February 2007. At this time he describes the plaintiff as being stressed, short- tempered, teary, unenthusiastic and inactive. He and the plaintiff’s auntie took over household chores and helped with the children. He felt like the plaintiff was not coping.
•
He again visited the plaintiff in November 2009 and plans on staying for nine months. The main reason for his visit is to assist around the house and with the children. He has also tried to assist the plaintiff financially.
•
He feels the plaintiff is worse, psychologically and physically, than when he saw her in 2007.
The Plaintiff’s Medical Evidence
18 In October 2009, Dr Hershel Goldman, the plaintiff’s general practitioner, said the plaintiff had been a patient for many years. He saw her in 2004 with symptoms of lateral epicondylitis which he considered was work-related. The symptoms settled.
19 On 17 April 2005, the plaintiff complained of pain in her left scapular region, progressing to the left arm, with numbness and tingling in her hand. She said the pain had been increasing over a period of months and was becoming unbearable at work. She was working in a confectionary factory separating liquorice straps. She was involved in fine work with her hands and sitting with her neck flexed for long periods of time. She had two weeks off work and returned to modified duties on restricted hours. She returned to full duties and was working full-time from early 2006.
20 In 2007, she was working on the production line which required repetitive long-term work and also lifting of heavy trays, which caused a severe exacerbation of her symptoms of pain from the cervical region into her left shoulder and down her arm and numbness spreading into the middle finger. She had a period off work. She returned to work and was assigned to the confectionary factory store which was suitable for light duties. However, she only lasted two days, when she was made redundant.
21 Dr Goldman referred the plaintiff to Dr Patrick, a rheumatologist, in December 2008 and to Dr Armin Drnda, a neurosurgeon. The plaintiff attended rehabilitation through Cedar Court. She retrained as a pharmacy assistant.
22 In 2009, Dr Goldman considered the plaintiff’s employment was responsible for her current condition. He did not think she was fit to return to factory work ever. He did not see her as returning to suitable modified full-time work in the near future and probably not within the next few years. In a report dated 15 October 2009, he was hopeful that with her retraining she would be able to return to the workforce and even build up to full-time work.
23 In August 2010, Dr Goldman said the development of the pain syndrome around the plaintiff’s shoulder and back was an outcome of continuing to work despite having increasing symptoms.
24 He said that the plaintiff had retrained as a pharmacy assistant and was required to work in a pharmacy but could only manage three hours a week, twice a week. Because of this, she was unable to find any work as a pharmacy assistant. He said that her failure to be able to return to work exacerbated her myofascial symptoms. He referred the plaintiff to Dr Terry Lim for pain management and rehabilitation, which he expected would minimise her pain on a daily basis and increase her activities in daily life. He further said that he thought it unlikely that she would be able to be constructively employed even after she completed the rehabilitation and pain management program.
25 Dr Goldman gave evidence and was cross-examined. He said that when the plaintiff first saw him in relation to a work-related injury, which was in 2005, she did not want to be on WorkCover payments, she did not want to lose her job and there were financial constraints which meant she could not take time off work. She was keen to undertake a return to work program. He said that now he thought she was unfit for any work and that that would continue into the future. He said his view was based on the fact that she had retrained as a pharmacy assistant, and had tried to return to work on short stints but failed, due to the exacerbation of her neck pain. He agreed that in 2009 he thought the pharmacy work would be suitable but when she worked more than three hours as a pharmacy assistant, her pain returned. He agreed that he relied on what she told him but he also said he “sees her, speaks to her, examines her and sees her symptoms and distress which are consistent with what she is saying”. He agreed that stress can increase or amplify her symptoms of pain. He noted in his records that in November 2009 she had worked four hours one day, had pain down the left side of her face and was teary.
26 He said myofascial muscular neck pain is a clinical condition of pain enhancement and recruitment. He said that most pain management specialists believe that there is an organic problem with the nervous system and the nerves become in some way desensitised. He considered she had disc pathology which is impinging on the disc nerves, but probably not so as to account for all her symptoms and that was why he believed that her problems are myofascial rather than radiculopathy.
27 In cross-examination, he was asked about an entry on 12 May 2010 where he said it was difficult for her to work because of depression. He said he had noted “chronic pain syndrome and depression” on a Centrelink certificate. He was asked whether in February 2009 he refused to support a request by the plaintiff to sign a total and permanent disability form for superannuation payments. He said that he had refused because the criteria did not apply to the plaintiff at that time. He was asked whether he would expect there to be wasting of the left arm. He said the left arm is her non-dominant arm. He did not think she would need to use it much to maintain its musculature.
28 In re-examination, he was handed certificates for incapacity between April 2005 and February 2006, and a second bundle which related to the period 16 August 2007 through to 14 April 2010. He said that his consistent diagnosis has been a soft tissue injury to the left side of the neck and shoulder girdle, myofascial, muscular pain, neck and disc protrusion. He said there was no reference to depression.
29 Mr Drnda, neurosurgeon, saw the plaintiff at the request of her general practitioner in June 2008 and June 2010. In June 2008, he noted that the range of movement of the neck was significantly decreased due to pain and stiffness, especially rotation in both directions as well as extension. He said she had mild numbness in dermatome C7 on the left. Reflexes were normal. He reviewed the MRI scan which showed old osteophyte disc complex at C4-5, distorting the cord at that level. However, the foramen was not compromised. The C6-7 foramen appeared to be okay. There were some other minor degenerative changes.
30 Mr Drnda considered that her employment was a significant contributing factor to the accelerated changes in her neck. He said the plaintiff had a degree of mild myelopathy rather than radiculopathy. His diagnosis was C4-5 canal stenosis with mild cord compression and mild cervical spondylotic myelopathy.
31 In 2010, Mr Drnda said that he reviewed the 2010 MRI scan, the findings of which were unchanged. He said there was a possibility that contact with the cord was possibly irritating the cord and producing pain down the arm, but this was just a guess. He said there was certainly no compression on the related nerve root. He diagnosed cervical spondylosis with chronic neck pain and left arm pain.
32 Mr Drnda considered the plaintiff was capable of returning to work where there is no physical strain on her neck, no work with outstretched arms, especially above the level of the chest, and no inappropriate posture for her neck. He noted that she was prevented from returning to this type of work as she is limited by her mental condition (depression). He considered that her organic condition was work-related and that she is likely to suffer the consequences and incapacities of the physical injury into the foreseeable future.
33 In 2008, Mr Geoffrey Klug, neurosurgeon, saw the plaintiff on behalf of the defendant. He examined the MRI scan of the cervical spine on 24 April 2008. He said the most significant finding was at the C4-5 level. He said there appeared to be a broad-based and left-sided disc protrusion which he thought was causing some narrowing of the C4-5 intervertebral foramen. This was associated with some end plate degenerative changes at this level. It was also reported there was some minimal mid cervical facet arthropathy. He said her injury was work-related. He described her injury as a “genuine physical disorder of some substance”. Dr Klug considered it was necessary to impose work restrictions and reduced hours. He considered her prognosis was uncertain. He thought there could be a slow improvement in her condition which should be evident during the next six months.
34 In a report of May 2008, Dr Mark Patrick, rheumatologist, said that the left shoulder irritability was related to capsular dysfunction. There was a degree of muscle fatigue and myofascial pain. He said the x-rays and ultrasound of the left shoulder in 2008 were normal. The MRI of the cervical spine showed minor disc bulging but no compromise of the nerve root or cord. He considered that, given the length of the ongoing symptoms, the plaintiff required functional restoration and re-conditioning multi-disciplinary rehabilitation. She was referred to the Dandenong Epworth Hospital for an out-patient assessment. It was his view that the plaintiff’s condition is predominantly of myofascial pain syndrome. He considered the plaintiff’s employment had been a contributing factor. He thought the plaintiff was fit for modified and restricted duties. He did not consider she was fit for pre-injury employment and said that heavy or repetitive lifting, greater than five kilograms, should be limited. He said her prognosis was guarded.
35 In a report of August 2009, Dr Mithu Palit, rehabilitation physician, saw the plaintiff on referral from Dr Patrick. He accepted her overuse type injury was work-related. He said that the plaintiff had developed chronic mechanical neck pain with possible nerve root irritation. He noted there was radiological evidence of degenerative change to the left shoulder. He said when he last saw her, which was November 2008, she had no capacity for her pre-injury duties. He thought she should look for alternate work which did not require high frequency and repetitive upper limb movements with restrictions on manual handling and lifting.
36 The plaintiff was seen by Mr Charles Flanc, general surgeon, at the request of her solicitors in March and December 2008 and May 2010. In 2010, he noted that the plaintiff had received a Certificate in Retail Pharmacy from the Dandenong TAFE which included job training of three to four hours per week for three weeks. The plaintiff told Mr Flanc that she believed she would be able to work as a pharmacy assistant provided it was done part-time, perhaps three hours per shift.
37 He reviewed the investigations and noted that the ultrasound and x-ray of her left shoulder performed in 2008 were reported as normal. He noted the MRI scan of the cervical spine performed in 2008 showed mild disc degeneration at the C4-5 level with a small left-sided disc bulge.
38 He considered that the nature of her employment at Mars caused a significant aggravation of a pre-existing disc degeneration of the cervical spine by making it symptomatic. He thought that the pain, which involves her left shoulder, is probably related to pain which is referred from the condition of her cervical spine. He considered the mild restriction is probably related to a soft tissue stiffness known as ‘frozen shoulder’ and said there was no intrinsic injury to the shoulder itself. Her symptoms of sensation of pins and needles and pain radiating down the left upper extremity he thought were referred from the condition of her cervical spine although he said she did not have any actual radiculopathy.
39 He considered her condition had stabilised and that she was unlikely to get any major improvement. He considered the organic injury to her cervical spine was still a significant contributing factor to her present disability. He thought she would suffer the consequences and incapacities of her physical injury into the foreseeable future. He thought her symptoms would persist and would influence her capacity for full-time employment and her activities at home. He said the plaintiff believed she would be able to work as a pharmacy assistant provided she could restrict her hours to three hours per shift. He thought that was a reasonable request.
40 The plaintiff was examined by Mr David Brownbill, neurosurgeon, at the request of her solicitors in January 2009 and March 2010. He noted that at the examination in 2010 there was restriction of cervical spine movements but no neurological abnormality. There were no signs of radiculopathy or myelopathy. He said that the plaintiff should in the future avoid activities involving heavy lifting, forced cervical spine mobility or holding her neck in a fixed position or performing stretching activities or working with her hands above her shoulders. He thought that she would be capable of performing duties that avoided those particular actions. He considered that the plaintiff would continue to suffer the consequences and incapacities of her physical injury into the foreseeable future. He also said the plaintiff’s organic injury would present a constant and debilitating presence in her life. He accepted that her injury was work related.
41 In a report of 22 July 2010, Mr Brownbill commented on an MRI of the cervical spine of 1 July 2010. He said there was no indication to modify his earlier opinions. However, he noted that at several levels disc bulges indent the cervical spinal cord and there may be compromise of the exiting C5 nerve root. He considered it appropriate for her to remain under regular medical review to determine if any signs of radiculopathy or myelopathy develop.
Vocational Assessments
42 In a report of April 2010, Ms Leonie Schneider, vocational counsellor from Australian Vocational Link, reported that the plaintiff did not have a capacity to perform her pre-injury duties which was permanent. Further, she does not have a capacity to perform suitable light alternative employment for which she is qualified, trained, experienced and/or skilled, and this incapacity is most likely to be indefinite. Ms Schneider said the plaintiff has had an education that has not equipped her for medically suitable alternative ventures and she has few medically suitable transferrable work skills upon which to base future vocational training. She is not a suitable candidate to participate in vocational training or occupational rehabilitation services and has an almost irrelevant previous work history which does not help in developing a plausible marketing campaign to assist her with future job seeking at her age. It was her view that the plaintiff would never return to full-time work. She thought that the plaintiff would become increasingly unemployable.
The Defendant’s Medical Evidence
43 Mr John F O’Brien, orthopaedic surgeon, medically examined the plaintiff in July and December 2005 at the request of the defendant. Mr O’Brien was guarded in respect to the prognosis as he considered her recovery had been slow. He considered the plaintiff was not capable of returning to unrestricted employment and noted that she displayed evidence of a soft tissue cervical strain which did not require ongoing treatment. He considered she was capable of continuing full-time modified duties. He accepted that her employment was a significant contributing factor to the current cervical pathology.
44 In December 2009, Mr O’Brien re-examined the plaintiff at the request of the defendant’s solicitor. He said currently the plaintiff complained of constant neck and shoulder pain with examination revealing a significant variation in subjective signs, including restriction of cervical and left shoulder movement. He said there was demonstrated fairly generalised left upper limb weakness and sensory change not related to a nerve root distribution. He said the signs suggest no substantial isolated cervical pathology and no evidence of nerve root compromise. He considered the problem was one of aggravation of the cervical degeneration, but the current overall presentation suggests the presence of a chronic pain syndrome.
45 In viewing the plaintiff’s history, he considered that she was not capable of a return to her pre-injury employment. He thought that she was capable of some employment. He thought she was physically capable of performing the duties of a pharmacy assistant but confined to limited hour employment. He suggested that she should commence work with 20 hours per week and steadily increase the hours of employment. He said she was physically capable of full-time modified duties. He considered her general domestic, social and recreational activities are mildly restricted and this may well be a permanent situation.
46 Mr Keith Elsner, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor in 2007, and again in 2009. In 2007, he said the plaintiff had sustained an exacerbation of the cervical degenerative changes and a probable left scapular bursitis. It was his opinion that employment had been a significant contributing factor. He noted that her first problems developed in April 2005, at work, and had partially, but not completely, resolved leading up to her injury in July 2007. It was his opinion that in July 2007 she had experienced an aggravation of pre-existing cervical degenerative changes but he could no longer identify a left scapular bursitis. He thought she would continue to experience some intermittent neck pain with moderate to heavy physical activities but said she had no evidence of radiculopathy and no evidence of any intrinsic left shoulder injury. In his opinion, her condition had stabilised and she had a mild residual permanent impairment of her neck.
47 In 2009, Mr Elsner said the plaintiff continued to suffer from a work-related injury that was an aggravation of pre-existing cervical degenerative change. He said she had a current work capacity for suitable employment. He said she was physically capable of undertaking work duties that she had been doing in the lollypop section and in the retail shop, that she was fit for full-time work that avoids repeated or prolonged upward or downward gaze with her head and neck, that avoids rapid, repeated or prolonged above shoulder level activities with her arms and that avoids lifting over four kilograms on a regular basis. He considered that the plaintiff could undertake a job as a pharmacy assistant working full-time.
48 Mr Brendan Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendant in May 2009. He said the history, examination and radiological findings were consistent with soft tissue injury to the cervical spine with referred pain to the left shoulder and arm but with no signs of radiculopathy affecting her left arm. He thought her impairment had stabilised. He expected her neck pain, left shoulder and arm pain would resolve gradually and naturally and he considered she would be able to carry out her work as a pharmacy assistant satisfactorily.
Vocational Assessment
49 The defendant relied upon two vocational assessment reports. The first was received in January 2009. The plaintiff was considered suitable for the following jobs: retail sales assistant, customer service advisor, pharmacy assistant, interpreter and retail pharmacist. In March 2010, a further vocational assessment was prepared. The following employment options were considered appropriate to the plaintiff: dispensary technician, administrative assistant, customer service officer, call centre operator and sales assistant.
Surveillance
50 I was shown two videos of the plaintiff attending poker machine venues. I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described may have days when she is able to do more activities than on other days.
51 The first was taken on 2 February 2010 and showed the plaintiff walking at a slow pace, then entering The Berwick Inn (which I was informed was a poker machine venue). She was seen seated on a chair at one of the poker machines. She agreed that she had been at The Berwick Inn for at least twelve and a half hours, that she had four breaks – the first was to move her motor vehicle and the other three breaks were to attend the ATM machine. She was asked whether she had been to The Berwick Inn on many occasions. She said “maybe, I can’t remember”. She said she went when she was “having a good day”. She agreed that she went to the Hampton Park venue to play the poker machines. She was asked when she last went to Hampton Park to play the poker machines. She could not remember and then said “maybe a month”. She was asked how long she stayed at Hampton Park. At first she said she “couldn’t remember”, then “I don’t know” and then “maybe a few hours”.
52 The plaintiff was then shown a video of her attending the Hampton Park Tavern on 6 August 2010. She agreed that she arrived there at about 9.00 am and stayed for the next five and a quarter hours until about 2.21 pm, when she left to go to the bank, returned and spent the next three and a quarter hours playing the poker machines until 5.50 pm.
53 She was asked whether she goes to the poker machines regularly. She said “sometimes, yes I go there”. She was then asked whether she went to the poker machines several times a week. She said “yes, maybe”. She was asked whether she often spent all day there. She replied “sometimes”. She agreed that after she left the Hampton Park Tavern she drove to Ormond Road, Hampton Park where her parents-in-law live. She collected her children and went shopping at the supermarket at the Hampton Shopping Centre at about 9.09 pm, leaving there at 9.30 pm. She agreed that if she was having a good day she could cook a meal. She was asked whether she was fit to work full-time in a pharmacy. She said “if it doesn’t aggravate my neck pain, yes I would love to work”. She was then asked whether playing the poker machines aggravated her neck pain and she said “I’m having a good day, so I just make the most of that day”.
54 The plaintiff was asked about the information she gave to Ms Leonie Schneider, a vocational consultant, in April 2010. She was asked why she did not tell Ms Schneider that she went to the poker machines. She said she just forgot to mention that. She agreed that Ms Schneider asked her if she was a gambler, which she denied. She said she just considered that as recreation “because I go there to take off the pain, like to just to make myself busy”. Later she said she regarded the poker machines just like buying a Tattslotto ticket and again she said she considered it as recreation.
55 She was asked how she went about looking for a job as a pharmacy assistant. She said she looked in the local newspaper and approached the pharmacists in the area. She thought she had been to more than three pharmacies. She said that because she can only work for three hours she could not get a job. She said she registered at Fountain Gate Centrelink in approximately May 2010 because she needed assistance in getting work.
56 The plaintiff was also asked about a job she had in Manilla with a company called Good Nutrition Centre. She said she was the supervisor.
57 In re-examination, she said that on a bad day she gets a pain in the left-hand- side of her neck which is sharp, and she takes medication. Sometimes she doubles the dose and sometimes she will go to see her general practitioner for an injection. On bad days she will watch television, listen to a CD or visit her parents-in-law because she needs someone to talk to, to take her mind off the pain. She said she used her right hand when she operated the poker machines and she said she would sometimes have three to four bad days a week. She said she had no neck pain before the injury at work. She was asked about the work she had to perform as a pharmacy assistant. She said she had to put products on the shelves, clean the shelves, dust and bring boxes from outside into the shop. She said reaching the product on the shelves caused her problems, as well as standing for long hours. She said the difficulty is that she cannot tell when she is going to have a bad day. She has trouble sleeping. Sometimes she can only sleep four or five hours a night. On those days she needs to have a sleep during the day.
58 She was also asked whether she could use a computer. She said she uses the computer to access Skype, Facebook and for assignments. She agreed she could do a sedentary job if it did not aggravate her neck and shoulder. She was asked whether she could perform the duties of a doctor’s receptionist. She said she did not know whether she could. It would depend on the work and she would need to be trained. She agreed that she did not go out with her husband now because of her pain and because he was working. She said that before the injury she would go to parties. At weekends, she and her husband would go for drives and fishing. She said she had difficulty with housework and her husband did housework and some of the cooking.
59 She was asked about retraining so that she could become a dispenser in a hospital. She said that was an option which she is considering but will involve a further twelve months of retraining.
Credit of the Plaintiff
60 In general, the plaintiff was quite agreeable and answered questions directly. She was cross-examined about her visits to the poker machines. In answering those questions she was hesitant. There were long silences before she would answer the questions in a restrained or tentative manner. It was quite clear that she was not forthcoming with her answers until pressed. I conclude she was embarrassed by the time she spent at the poker machines and felt uncomfortable that she was being asked questions about her gambling habits. In reaching that conclusion, I am conscious of the fact that prior to her work injury she presented as a hardworking woman. I am aware that a doctor described her as sincere and there was no suggestion in any of the medical reports that she was exaggerating her symptoms. Most of the doctors considered she had an organic injury, that she could not return to her pre-injury work, and that the work she could perform would need to be restricted. Overall, I accept that she is a credible witness.
Analysis of the Evidence
61 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in, the course of her employment with the defendant. All of the medical witnesses accepted that the injury was work related.
62 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37)), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically based – see Barwon Spinners (supra). The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 63 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and/or loss of earning capacity.[9] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[10] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[11] Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
[9] S.134AB(38)(b) and (c)
[10] S.134AB(38)(b), (c), (e), (f) and (g)
[11] Advance Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170 63
64 I shall consider the narrative test first. Section 134AB(38)(b) requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
(i) pain and suffering; or
(ii) loss of earning capacity-
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
65 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
66 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[12] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairment. In addition, the court must be satisfied that the consequences are “more than significant or marked”.[13]
[12] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
[13] …..
67 The plaintiff has sustained an injury to her neck. The consequences of that impairment are that she can no longer return to her pre-injury employment nor can she engage in employment which requires her to work without stretching down, especially below the waist and above the level of her chest, and duties where she does not stay for prolonged periods of time with a flexed neck. A number of the doctors said that she could only engage in work with the above restrictions and for reduced hours. Before the injury, the plaintiff was in full- time employment for a number of years.
68 The plaintiff tried to maintain her employment with the defendant before she was dismissed from that employment. She provided a history of working on, despite problems and difficulties, and working on modified duties for limited hours until such time as she was dismissed. Subsequent to her dismissal, she began retraining as a pharmacy assistant, attending Dandenong TAFE. She was required to job train and worked on a part-time basis so as to qualify as a pharmacy assistant, during which period she was able to work at that course and related duties when in training for three hours a day for four days a week in accordance with certifications given to her by her general practitioner. She qualified as a pharmacy assistant. She attempted to work a 4-hour shift when an employee was sick. She told the pharmacist she could not work 4-hour shifts in the future due to her injuries.
69 I am satisfied that it is fair to describe the consequence of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative case.
The Statutory Test – Loss of Earning Capacity
70 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 71 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 72 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
73 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
74 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
75 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s. 134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[14]
[14] (2005) 14 VR 622 at paragraph 70
76 Counsel for the plaintiff and defendant accepted that the plaintiff’s “without injury” earning capacity was $18.00 per hour working a 35-hour week, namely $32,760.00 per annum. Sixty per cent of this is $19,656.00 per annum, or $378 per week.
77 Counsel for the plaintiff submitted that the plaintiff’s income referred to above was indicative of what she was earning and capable of earning.
78 Counsel for the plaintiff submitted that the parties agreed that the referrable post-injury rates for a pharmacy assistant who has the qualifications which the plaintiff has are as follows:
(a) Full time $731 per week (gross); and (b) Full time $38,102 per annum (gross). 79 The evidence is that the plaintiff has not returned to work. She has attempted to return to work as a pharmacy assistant in 2010 but this has been unsuccessful.
80 All doctors, other than Mr Klug (who examined her in 2008), expressed the view she could not return to her pre-injury employment. Most expressed the view she could return to restricted duties, as set out in paragraph 67. In 2009, the view was she could perform the duties of a pharmacy assistant, once she was retrained. In December 2009, Mr O’Brian said she could work part time commencing on 20 hours per week and increasing .
81 In March 2010, Mr Brownbill said realistically she could not work full time. The number of hours she could work would be dictated by her response to ongoing employment and activities. He said it was likely to be less than half of full time and attempts at employment should be performed under close medical supervision to determine her responses, and this would continue into the foreseeable future.
82 Dr Goldman said she was not fit for any work. He thought it unlikely she would be able to be constructively employed even after she completed the rehabilitation and pain management course.
83 The Vocational Assessment of Ms Schneider considered the plaintiff was becoming increasingly unemployable.
84 Accepting that in time the plaintiff may be able to return to employment 3 hours per day five days per week, she would earn $16,290 per annum, which is well below sixty per cent of her “without injury” earning capacity. Accordingly, I find that the plaintiff satisfies the arithmetical formula established by the Act.
85 I am required to consider issues of retraining and rehabilitation pursuant to subsection (g) of s.134AB(38).
86 The plaintiff has been referred to further rehabilitation by Dr Goldman. He said he does not expect that she would be constructively employed after completion of the rehabilitation and pain management program. He expected it would minimise her pain on a daily basis and increase her activities of daily living.
87 As to retraining, the plaintiff has retrained as a pharmacy assistant. She said she could do a further course which would enable her to work in a hospital dispensary. There was no evidence to suggest that if she undertook the course, that the duties of a pharmacy assistant in a hospital environment would be any different to those required in retail pharmacy.
88 Accordingly, I do not consider that retraining and rehabilitation will alter the situation that the plaintiff has a loss of earning capacity of 40 per cent or more.
89 I am satisfied the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
90 Therefore, I am satisfied the plaintiff satisfies the 40 per cent requirement and has sustained an injury within the meaning of s.134AB.
91 I accept that the consequences of the injury are permanent within the relevant section, that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
92 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of her employment with the defendant.
93 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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