Angelovski v N and R Shankly Pty Ltd
[2012] VCC 1126
•22 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05381
| GORDANA ANGELOVSKI | Plaintiff |
| v | |
| N & R SHANKLY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2012 | |
DATE OF JUDGMENT: | 22 August 2012 | |
CASE MAY BE CITED AS: | Angelovski v N & R Shankly Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1126 | |
REASONS FOR JUDGMENT
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SUBJECT – SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the back – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38).
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142; Gorgiev v Healthscope Ltd (2008) VCC 1443; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
JUDGMENT – Leave granted to bring proceeding for damages for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton QC with Mr J Goldberg | Slater & Gordon Ltd |
| For the Defendant | Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant from August to October 2007. (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the back.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. The plaintiff also relied on an affidavit sworn by her husband, Zoran, on 9 July 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity,
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) of the Act recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) of the Act requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
14 Subsection (38)(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
16 The plaintiff is a forty-one year old married woman, having been born in Macedonia in 1971. She completed high school there and then migrated to Australia in 1990.
17 Between 1990 and 2006, the plaintiff engaged in various unskilled jobs as an industrial sewing machinist, upholstery machinist, packer and cleaner.
18 The plaintiff commenced employment with the defendant on 6 August 2007 as a kitchen hand on a part time basis at Greenhill Civic Aged Facility, working twenty-one hours per week.
19 At the time, the plaintiff was also working as a food and beverage assistant with Compass Group (“Compass”) in the Qantas Club at Tullamarine, having commenced that job in April 2006.
20 Prior to commencing work with the defendant, the plaintiff was in good health. In cross examination, she denied suffering fatigue or headaches before the period of employment.
21 The plaintiff was diagnosed with breast cancer in 2001 and treated with chemotherapy, radiotherapy and surgery.
22 The plaintiff suffered an injury at work with Compass on 19 January 2007 when she strained her right shoulder. She was treated with physiotherapy for about six weeks and performed light duties for that time. She made a complete recovery and had no ongoing shoulder problems.
23 Prior to suffering injury in the period of employment, the plaintiff was an active person. In addition to working two jobs, she attended the gym three times a week, spending an hour doing treadmill exercise, riding a bike and using the cross training machine.
24 In cross examination, the plaintiff confirmed she was a member of the gym before she suffered injury, attending on and off the year before and also at times doing her own exercises walking and running. She also went swimming at the gym. She thought she last had a gym membership in about April 2007.
25 The plaintiff played netball as a young girl. She still enjoyed goal shooting with friends every fortnight or so in 2007.
26 Before suffering injury to her back, the plaintiff did all the work around the home, inside and in the garden and she enjoyed reading Macedonian language books as a recreation. She confirmed this situation in cross examination.
27 The plaintiff’s job with the defendant involved setting up the dining room for residents’ meals and then cleaning up. It was fast repetitive work with some heavy elements. In particular, the plaintiff was required to a load a shelf with crockery before placing it into a dishwasher below bench level.
28 Shortly after she started work with the defendant, the plaintiff began to notice an aching pain in her back associated with her duties. She attended her general practitioner, Dr Calic, and was prescribed anti-inflammatories, which really did not help her much.
29 Over time, the plaintiff’s back pain progressively worsened.
30 On 10 October 2007, while attempting to load the dishwasher, the plaintiff bent and felt sharp pain in her lower back.
31 After the incident, the plaintiff again saw Dr Calic and was prescribed further anti-inflammatories. She attempted to keep working but did so in significant pain.
32 On 12 October 2007, the plaintiff had a CT scan of her back. The following day, while attempting to unload the dishwasher, her back seized again and she then stopped work (“the incident”). The plaintiff has been unable to resume her normal duties since that time.
33 Dr Calic referred the plaintiff to Mr Chambers, neurologist, who organised an MRI scan of her back. The plaintiff then commenced seeing Dr Ristevski, who referred her to Mr Barrett, orthopaedic surgeon.
34 In cross examination, the plaintiff explained that she was scared to undergo the back injection suggested by Professor Chambers. She did not like needles and also some of her friends had undergone the procedure with little benefit. She was later prepared to undergo carpal tunnel surgery as that procedure was under general anaesthetic.
35 The plaintiff was referred to Dr Wahr, psychiatrist, and she also attended a pain management program at Latrobe Medical Centre.
36 Following the incident, the plaintiff submitted a Worker’s Compensation Claim which was accepted. After ceasing work, she attempted to return to work on a couple of occasions in accordance with return to work programs, once in April 2008 and again in May 2009.
37 On both occasions, the plaintiff’s duties involved making sandwiches, pushing trolleys and cleaning tables. On the first occasion, she was able to only work for one day of two hours, and on the second occasion, she worked two days of two hours, before having to stop work because of increased back pain.
38 In cross examination, the plaintiff confirmed her attempts to return to work and the difficulties she faced with co-workers who thought she was not injured. Whilst she was told to go home by the human resources lady on the first return to work, the plaintiff would have gone home anyway because her back was sore.
39 At the defendant’s request, the plaintiff attended Work Focus to discuss possible jobs for which she might be suited. Other than one meeting, the plaintiff had had no assistance with rehabilitation or retraining in an attempt to locate suitable work.
40 In about March 2011, a lump was discovered in the plaintiff’s right breast, diagnosed as cancerous. She underwent a double mastectomy on 24 May 2011, followed by chemotherapy treatment until about October 2011.
41 Currently, the plaintiff is being advised she should make a very good recovery from her cancer. She suffers no related symptoms and is taking no medication. She understands she will undergo body scans on about a yearly basis to ensure she is cancer free.
42 In cross examination, the plaintiff confirmed that since ceasing chemotherapy in October 2011, she had received good reports and she had to go back for reviews. She does not feel any ongoing effects from the cancer treatment and now feels good.
43 While being treated for breast cancer, the plaintiff suffered worsening numbness and tingling in her hands, which she was advised was a peripheral neuropathy.
44 In order to treat those symptoms, the plaintiff underwent right carpal tunnel release surgery on 21 May 2012. On 16 July 2012, she underwent surgery on the left side.
45 The plaintiff is now symptom-free on the right side with no symptoms, even when sleeping. She does not believe her wrist condition would prevent her from returning to work, including pre-injury duties. In cross examination, the plaintiff confirmed that her right wrist is now good.
46 On the other hand, the plaintiff remains restricted and limited on account of her back injury symptoms.
47 The plaintiff still has constant back pain which radiates down her legs, with the right being worse than the left. That pain is present most of the time all the way down to her toes. The right leg pain also sharpens when the plaintiff stands up.
48 During the night, the plaintiff’s right leg cramps disturb her sleep and on most nights force her to get up from bed two or three times and walk around. Her sleep remains broken due to pain and cramps and she usually feels tired and drowsy during the day.
49 In cross examination, the plaintiff described how she usually has problems sleeping every night. She cannot fall asleep straight away and then she wakes up at about 2.30 am because of lower back pain. She cannot turn in bed. Her back is very sore and she cannot go back to sleep straight away.
50 The back pain is the main problem keeping the plaintiff awake. The Antenex tablets she takes nightly deal with her leg cramps. The plaintiff has not asked her doctor for specific sleeping tablets.
51 The plaintiff continues to see Dr Ristevski about once a fortnight. He prescribes medication for her back and leg pain and she talks to him about how she feels.
52 The plaintiff has not seen any further specialists since she last saw Mr Barrett. She has paid for some massage recently and last had physiotherapy in 2010. Both those modalities gave the plaintiff limited relief for a couple of hours.
53 The plaintiff takes 150 milligrams of Lyrica twice daily (one in the morning and one at night) as well as Brufen and Tramal, which she also takes about two or three times a week when her symptoms are especially bad. The dosage of Tramal is 50 or 100 milligrams.
54 In cross examination, the plaintiff described how she cannot wait to take Lyrica when she wakes up and also later in the day. Lyrica relieves the pain a little bit, but the plaintiff’s pain level can still be great even whilst taking that medication.
55 The plaintiff’s depression continues to be treated by psychiatrist, Dr Wahr, whom she sees weekly. Her condition is controlled with medications: Avanza, Xanax and Serenace.
56 The plaintiff’s ability to bend and move is restricted by her back condition. She continues to have difficulty sitting, standing and walking for more than twenty to thirty minutes. Sometimes she cannot straighten up from a bent position so she tries not to bend.
57 The plaintiff’s physical limitations in respect of walking, squatting, crouching, kneeling and lifting have continued since October 2007.
58 The plaintiff is still reliant on her husband’s parents and her children for assistance with household chores and gardening. They take care of tasks such as vacuuming, mopping and hanging out the washing. Furthermore, whilst the plaintiff sometimes pops into the supermarket for a few small items, the major household shopping is usually done with the assistance of her children. The plaintiff is unable to push a supermarket trolley.
59 The plaintiff is now able to prepare only simple meals, as standing at the bench preparing food for longer than about twenty minutes causes an increase in her back pain.
60 The plaintiff’s daughter and mother-in-law help with the heavier housework. The plaintiff does a bit of dusting occasionally and tries vacuuming but cannot finish it, so her daughter does so.
61 The plaintiff is no longer able to do any gardening and that task is now performed by her father-in-law and son. Before suffering injury, the plaintiff did most of the gardening, including mowing the lawn.
62 As a result of her physical restrictions and symptoms, the plaintiff remains unable to attend the gym as she did before injury. She has also been unable to pursue any of her other pre-injury activities, such as long walks she used to enjoy on an almost daily basis with her husband’s sister-in-law, including walking over some fairly steep hills near her house.
63 These days the plaintiff’s walks are limited to about twenty minutes. She no longer goes swimming or plays netball with friends, both activities which she enjoyed on a regular basis prior to her back injury.
64 The plaintiff is able to drive locally, but she still finds it difficult to drive for more than twenty to thirty minutes because of back pain.
65 In about December 2011, the plaintiff went on a trip to China for about eight days with her husband and daughter, partially to celebrate her recovery from cancer, but also to try some alternate ways of controlling her pain, such as herbal remedies, acupuncture and massage.
66 The plaintiff found the plane trip to and from China very difficult and she was forced to take an increased amount of medication. As a result of the plaintiff’s pain and difficulties sitting for long periods of time, the family also decided to stop over in Singapore for a few hours.
67 The plaintiff was unable to join her family when they visited the Great Wall of China, because of her pain and difficulty walking long distances and up and down stairs and steep inclines. That situation disappointed her greatly.
68 The plaintiff is currently in receipt of a Disability Support Pension. Since recovering from cancer, she has been looking for work, mainly as a retail sales assistant. However, she has not been offered any positions, and while she would like to do this type of work, she is concerned that her inability to stand and sit for long periods would prevent her from successfully doing so.
69 Realistically, the plaintiff thought she would struggle to do this work even on a part time basis because of her back and right leg symptoms. She finds it difficult to lift or carry objects of any significant weight and she estimates she could not lift more than three kilograms without aggravating back pain.
70 In cross examination, the plaintiff explained that she had applied for a number of different jobs, full time and part time, both before and after the diagnosis of breast cancer. She never received any follow up from potential employers. She last submitted a résumé two weeks before the hearing.
71 The plaintiff cannot think of any work suitable for her, given her current condition. She has very limited English language skills, not having had any form of education for over twenty years, and none in Australia. Further, she had always worked in physically heavy jobs and was no longer suited for that type of work because of her back.
72 In cross examination, the plaintiff agreed she had continued to try and find work and would try a job if someone offered her one.
Summary of the Plaintiff’s Income Tax Returns
Financial Year Ending June
Gross Income including WorkCover
Weekly Payments, Centrelink and
Superannuation Payments
2004
$26,020
2005
$26,034
2006
$21,821
2007
$32,497
2008
$27,095
* Injury October 2007
2009
$23,838
2010
$18,516
2011
$22,634
Lay Evidence
73 The plaintiff’s husband, Zoran, swore an affidavit on 9 July 2012.
74 Mr Angelovski migrated to Australia in 1989 with his parents. He then sponsored the plaintiff’s immigration and they were married in 1990.
75 In May 2001, Mr Angelovski suffered an injury to his back and since then has been in receipt of a Disability Support Pension.
76 Mr Angelovski deposed that prior to the plaintiff’s injury, she was outgoing and helpful and constantly doing things.
77 After initial treatment for cancer in 2001, she returned to work only a short time later and did not let that get in the way of supporting the family, despite his injury.
78 Following his injury and her initial recovery from cancer, the plaintiff took care of all domestic duties, both in and outside the house. She also led an active recreational life with regular trips to the gym, the swimming pool and also she played netball regularly. The plaintiff enjoyed regular long walks and remained upbeat and had the energy to do all other things.
79 The plaintiff’s back injury has robbed her of her ability to do things such as gym or netball and she now can only walk for twenty minutes. She ceased tending the vegetable garden and mowing the lawn, tasks which are now done by Mr Angelovski’s father.
80 Since hurting her back, the plaintiff moves a lot slower and sometimes appears to limp, which she says is because her right leg is cramping. She often looks to support her back by holding it with her hand and will often lean against a chair or wall for support.
81 In bed, the plaintiff tosses and turns constantly and she does not seem to be able to ever get comfortable, despite having bought a lot of different mattresses and pillows.
82 Since the plaintiff’s injury, Mr Angelovski and the plaintiff have been unable to go out as much because of her difficulty driving. They have not been away on a long trip since her injury.
83 Despite her condition, the plaintiff has advised she would like to find some work and she has enquired about a number of jobs. She went to a retail store and left her résumé, but never received a reply.
84 Prior to her injury, the plaintiff was a happy, bubbly, determined person with a full and active lifestyle. However, she appeared to have aged considerably since then and it saddened him to see the plaintiff as a slow and miserable person always complaining of pain.
The Plaintiff’s Treaters
85 Dr Calic provided a treating practitioner’s initial medical report in which he set out the plaintiff presented on 13 October 2007 complaining of severe back pain with radiation into both legs caused by heavy lifting and bending and repetitive movements at work. He noted she had presented the first time with back pain on 26 August 2007, but there was an obvious deterioration by the October 2007 examination.
86 Dr Ristevski from the Epping Plaza Medical Centre (“Epping”), the plaintiff’s treating general practitioner, provided a number of medical reports, most recently in July 2012.
87 The plaintiff first presented to Epping on 4 February 2008 complaining of lumbar pain. Dr Ristevski noted the plaintiff’s work was demanding as she was required to lift plates and trays and load a dishwasher. As a result of her work, the plaintiff had developed lumbar pain from about August 2007 and was unable to work beyond 13 October 2007.
88 Despite taking time off work, the plaintiff’s lumbar pain increased and she was referred to Professor Chambers, who organised an MRI scan. The plaintiff was then treated with medication, including Tramal and Mobic, and was advised on further treatment with bilateral L4-5 facet joint injections.
89 When first seen by Dr Ristevski, the plaintiff described her back pain as constant in nature and she was unable to sleep because of it.
90 During March 2008, the plaintiff was commenced on Lyrica capsules due to increasing lumbar pain and lower limb radiculopathy. Dr Ristevski thought the clinical signs were consistent with a neuropathic component to the plaintiff’s back pain and the dosage of Tramal was lowered.
91 The plaintiff was offered a very light job in the kitchen in March 2008 but failed to manage the workload and she also felt harassed by fellow employees who did not believe she was injured.
92 During May 2008, the plaintiff developed increasing back pain and sleep disturbance, agitation and depression. She was referred to Dr Wahr, psychiatrist, who diagnosed depression, anxiety, sleep problems, reduced concentration, forgetfulness and irritability and prescribed Avanza and Xanax.
93 The plaintiff was assessed by a rehabilitation provider and job placement was difficult due to her severe back pain. The plaintiff was eventually accepted by the Spinal Management Clinic at Latrobe Medical Centre in Bundoora for a pain management program.
94 Despite these interventions, the plaintiff continued to complain of increasing lumbar pain and associated disability and sleeping difficulty, anxiety and depression and was not able to return to any sustained work.
95 The plaintiff was seen on a regular basis at Epping until 3 July 2012, presenting fortnightly complaining of severe lumbar pain, associated functional impairment and psychological sequelae.
96 During 2011 and 2012, the plaintiff was diagnosed and treated for breast cancer, requiring surgical treatment and chemotherapy. She made positive progress and recovered from her treatment with no major complications. When last seen, the plaintiff continued to complain of severe and debilitating lumbar pain with increasingly severe radiculopathy.
97 Dr Ristevski thought that the plaintiff was substantially incapacitated both in terms of work and activities of daily living. He noted she also experienced ongoing anxiety, depression and agitation.
98 Dr Ristevski thought the plaintiff sustained a lumbar injury developing chronic lumbar pain with underlying disc disruptions of L3-4, L4-5 and L5-S1 as per the CT scan examination. He noted the MRI scan demonstrated a broad-based disc bulge at L4-5 with a small annular fissure and contact with, but not compressing, the left L5 nerve root. He noted there was complicating sleep disruption, anxiety and depression and that the underlying injury most probably resulted from the nature of the plaintiff’s work.
99 Dr Ristevski thought the plaintiff was at increased risk of developing arthritis of the spine due to her disc disruption. He considered she was unlikely to require any further surgery but thought cortisone injection may be of benefit, as may physiotherapy.
100 In Dr Ristevski’s view, the plaintiff was likely to experience long term lumbar pain and associated suffering, distress, anxiety, depression and general disability and had a low probability of successfully returning to pre-injury or any work. He considered she was likely to be markedly restricted in relation to employment and activities of daily living.
101 Dr Ristevski thought the plaintiff was likely to be permanently incapacitated, with a permanent limitation in relation to bending, lifting, twisting, stooping, pushing and pulling.
102 Dr Ristevski considered the plaintiff would be unable to manage as a sales assistant due to the need to stand for prolonged periods and to bend and lift. She was unlikely to be able to manage work as a console operator/cashier due to her inability to sit for a prolonged time. She would be unable to work as a mailing clerk due to her inability to endure prolonged sitting or standing, bending and lifting. Further, she was impacted by her medications. She was unlikely to be able to manage work as a quality controller/product examiner, due to her inability to endure prolonged sitting, standing, bending and lifting.
103 Dr Ristevski concluded the plaintiff had sustained a serious lumbar injury and continued to present with, and was likely to continue to present with, marked symptoms, pain and much suffering.
104 Associate Professor Brian Chambers, neurologist, first saw the plaintiff in January 2008 on referral from Dr Calic.
105 Professor Chambers reported that examination revealed a young woman who appeared to be in a good deal of pain. There were no convincing neurological abnormalities in the lower limbs. Straight leg raising was limited by pain to about ten degrees on the right and thirty degrees on the left. The plaintiff was intolerant of femoral stretch testing. There was diffuse lumbar and sacroiliac tenderness bilaterally.
106 Professor Chambers reviewed the CT scan, noting disc bulges at L3-4, L4-5 and L5-S1. At L5-S1, there was a marked reduction in disc space and possible compression of descending S1 nerve roots.
107 Professor Chambers thought the plaintiff appeared initially to have suffered a work-related back injury and he suggested she have an MRI scan. He recommended she continue on Mobic alone, ceasing Voltaren, and he prescribed Tramal.
108 The plaintiff was reviewed on 29 January 2008 following the MRI scan. That investigation showed disc degeneration at L4-5 with broad-based bulging. Professor Chambers thought this bulging contacted but did not compress the traversing left L5 nerve root. A mild to moderate degree of facet joint arthropathy was noted and minor bulging was also noted at L3-4. There was mild facet joint arthropathy at L5-S1.
109 Professor Chambers asked the plaintiff to persevere with physiotherapy and referred her for L4-5 facet joint injections to try and break the pain cycle.
110 Professor Chambers thought the plaintiff suffered from degenerative disease of the lumbar spine, from which one would normally anticipate a good recovery. He was unable to say whether the injury had stabilised. He believed it unlikely the plaintiff would require surgery and it was difficult to predict the long-term outcome, as it varied from patient to patient. Undoubtedly, however, he thought there had been pain and suffering, distress and anxiety, although those were difficult to quantify and undoubtedly the main impact had been on the plaintiff’s ability to work.
111 The plaintiff was examined by Mr Barrett, orthopaedic surgeon, on 7 May and 4 June 2009 at Dr Ristevski’s request.
112 The plaintiff told Dr Ristevski of a sudden attack of severe low back pain on 13 October 2007 working on the dishwasher, but also complained of fairly modest lower backache earlier in her period of employment with the defendant.
113 On examination, the plaintiff complained of low back pain radiating into both buttocks, particularly the right. She also complained of pain radiating into the right posterior thigh, the calf and as far as the sole of the right foot, associated with intermittent numbness and pins and needles in the right foot and toes.
114 On initial examination, movements of the lumbar spine were very limited, producing low back pain into the right buttock. There was moderate lumbar tenderness and straight leg raising was to eighty degrees on the left and seventy degrees on the right. Power remained normal, as did all lower limb reflexes. Sensory testing failed to reveal any abnormalities throughout the lower limbs.
115 Mr Barrett noted the CT scan of the lumbar spine of October 2007 and the lumbar MRI scan of May 2009.
116 Mr Barrett concluded the plaintiff had sustained painful ruptures involving her lower three lumbar intervertebral discs from the L3 to S1 levels, each disc producing a posterior disc bulge, pushing into the lumbar theca and close to the emerging nerve roots, particularly on the right. He noted there was no radiological evidence that the previous breast malignancy had contributed to the plaintiff’s symptoms or disability.
117 Mr Barrett commented that lumbar disc ruptures of this severity had minimal capacity to heal or repair, which accounted for the plaintiff’s ongoing symptoms and disability which he thought was permanent. He considered that because of the number of discs involved, operative treatment was unlikely to be helpful.
118 Mr Barrett thought the plaintiff had sustained a serious injury with no current capacity to return to even light and limited work on a permanent basis. In his view, the prognosis for healing was minimal and therefore the plaintiff’s symptoms and disability were likely to continue in the foreseeable future.
119 Mr Barrett thought the pain, suffering and distress experienced by the plaintiff was profound and likely to continue permanently and markedly limit her activities of daily living, recreation and social activities.
120 Dr Shane White, Director of Medical Oncology at the Northern Hospital reported in April 2012. He met the plaintiff on one occasion on 16 September 2011, but noted there were multiple oncology attendances at the Northern Hospital with the most recent review on 23 March 2012.
121 In May 2011, the plaintiff was diagnosed with right-sided breast cancer and required a bilateral mastectomy and surgical reconstruction. She was treated with aggressive chemotherapy.
122 When seen on 23 March 2012, the plaintiff had completed her treatment and comments were made that her general condition was relatively good, aside from a slow improvement in some residual peripheral neuropathy which had developed as a result of the chemotherapy.
123 In all, Dr White expected the plaintiff would make a full recovery from her diagnosis and treatment, presuming she did not relapse. He noted the peripheral neuropathy may have a subtle effect on her capacity to perform some of her domestic activities of daily living, or indeed her capacity to carry out gainful employment, depending on the job requirements. He noted typically patients with that condition could have trouble with work involving fine motor skills with their hands but it did not impede any capacity to perform gross manual labour.
124 Apart from that, he thought the plaintiff may have some mild ongoing residual fatigue that often occurred in patients for a year or so after chemotherapy, but for most patients that did not impede their capacity to return to gainful work.
125 As a result, Dr White thought that any impediment related to work in the future would primarily be determined by the plaintiff’s incapacity in relation to her original back injury and should not be compounded by a history of breast cancer treatment in any major way.
Investigations
126 A CT scan of the plaintiff lumbar spine was organised by Dr Calic on 12 October 2007.
127 It was reported there was a diffuse posterior disc bulge at L5-S1 along with disc degeneration compressing bilateral descending S1 nerves. There was a diffuse posterior disc bulge at L4-5 with possible central annulus tear indenting the ventral thecal sac without any significant neural compression. There was a mild posterior disc bulge at L3-4 not causing any significant neural compression.
128 An MRI scan of the lumbar spine was organised by Professor Chambers on 16 January 2008.
129 It was reported there was no evidence of neural compression. There was a mild broad-based disc bulge at L4-5 associated with a small annular fissure. This contacted but did not compress the traversing left L5 nerve root in the subarticular/lateral recess.
130 Mr Barrett organised an MRI scan of the lumbar spine on 27 May 2009.
131 It was reported there was mild to moderate lower lumbar intervertebral disc degenerative change with the most pertinent finding being a shallow left asymmetric disc bulge at L4-5, which contacted and mildly displaced the L5 nerve root within the lateral recess. There was no identified cause for right-sided sciatica. There was no evidence of metastatic disease.
Medico-Legal Examinations
132 The plaintiff was examined by Mr Wilde, orthopaedic surgeon, on 22 May 2012.
133 The plaintiff then described constant aching pain in her low back which he rated at six to seven out of ten and nine to ten out of ten on a bad day. The pain referred into both buttocks and both proximal legs and occasionally the right calf and foot.
134 Examination revealed a moderately obese woman who stood with normal posture. Lumbar movements were restricted because of pain. Flexion was to thirty degrees but there was no extension. Lateral bending was to twenty degrees in both directions, as was rotation on the right, and ten degrees to the left. There was no neurological abnormality.
135 Mr Wilde saw the reports of the CT scan of the lumbar spine of October 2007, and the MRI scans of January 2008 and May 2009. He saw the actual film of the CT scan and also the 2009 MRI scan.
136 Mr Wilde noted the CT scan demonstrated a central L4-5 disc protrusion causing right L5 root irritation. He thought the 2009 MRI scan showed disc desiccation at L3-4 and L4-5. At L4-5, there was a moderate central disc protrusion causing irritation of both L5 nerve roots. At L3-4, there was a small central disc protrusion not causing neural compression.
137 Mr Wilde thought the plaintiff sustained a central disc protrusion at L4-5 with intermittent bilateral L5 radiculopathy. As a secondary phenomenon, she developed reactive depression. He diagnosed L4-5 central disc prolapse which produced intermittent bilateral L5 radiculopathy. He did not think the plaintiff was at increased risk of arthritis in the future. He thought self management was preferable to endless palliative care. In his view, there was a small possibility, less than five per cent, that the prolapse would extend, in which case sciatica would increase in intensity.
138 Mr Wilde thought the plaintiff was restricted in employment, as she could not bend, lift, twist or stoop and she could not push or pull or perform any of those activities repetitively.
139 Mr Wilde did not believe, given the plaintiff’s somewhat hopeless ongoing pain, breast cancer and severe depression, that she had a work capacity for the foreseeable future.
140 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in April 2012. She had available to her the reports of the MRI scans of May 2009 and January 2008 and the CT scan of October 2007. She had also available the Work Focus report and the plaintiff’s first affidavit.
141 On examination, the plaintiff was found to have normal gait, but decreased agility. Lumbosacral movement was restricted with a catch of pain at fifty degrees of flexion and there was less than five degrees extension. Both left and right lateral flexion were to ten degrees, with rotation to thirty degrees. There was a restriction of straight leg raising on the right. There were no knee reflexes elicited and ankle reflexes were measured at “2+”. There was decreased power in both lower limbs and no abnormality of sensation.
142 Dr Sutcliffe believed the plaintiff sustained onset of disc derangement at L4-5 as a result of work. In her view, the plaintiff continued to be unfit for pre-injury duties. In addition, Dr Sutcliffe thought the plaintiff had no capacity for suitable duties, taking into account the factors set out in s5 of the Act.
143 Dr Sutcliffe noted the plaintiff currently continued with constant pain which resulted in sleep disorder and adverse effect on activities of daily living with pain in the back and right leg, greater than the left.
144 Dr Sutcliffe thought the plaintiff continued to require physical treatment to provide her with assistance in avoiding deterioration in function as a result of persisting pain. Dr Sutcliffe considered disability was permanent and that the plaintiff was at an increased risk of developing osteoarthritis at L4-5.
145 Dr Sutcliffe thought there was a possibility of further surgery but that was unlikely to occur in the medium range in the future. In her view, the plaintiff would require some further pain management procedures, including injections and possibly spinal stimulation in an attempt to manage her pain.
146 As a result of the plaintiff’s injury, and excluding any other physical injuries, including cancer and/or psychiatric conditions, Dr Sutcliffe thought the plaintiff had no capacity for pre-injury employment and had sustained adverse impact on her capacity for all activities involving bending, lifting, twisting and stooping and had no capacity for pushing, pulling or lifting and had a restricted capacity for repetitive pushing, pulling or lifting, permanently. She thought the plaintiff had no capacity to do either her pre-injury job or any capacity to perform for long, standing, bending, twisting, lifting or walking for the hours of a shift as required in the hospitality industry. In her view, the plaintiff could not do those duties either part time or full time and that situation was permanent.
147 Dr Sutcliffe considered a sales assistant role unsuitable for the plaintiff as there was limited capacity for standing, which was confirmed by findings on examination. She thought the plaintiff could not work as a console operator because she had no capacity to perform the required lifting and also cope with long hours of sitting or standing. Further, the job was subject to public demand and not self paced.
148 The plaintiff could not do mail clerk work because of the prolonged persisting standing and sitting and there was no capacity to undertake self paced work. Dr Sutcliffe had a similar view in relation to the jobs of product quality controller and product examiner.
149 Dr Sutcliffe also noted the plaintiff had limited capacity for undertaking social activity and very substantial loss of capacity for recreational activities. She thought there was no adverse impact on the plaintiff’s functional capacity as a result of the history of breast cancer.
Vocational Evidence
150 Mary Oliver from Flexi Personnel provided a report in July 2012 in relation to the realistic prospects of the plaintiff being able to perform suitable employment.
151 Ms Oliver concluded that due to the plaintiff’s physical impairments, chronic pain and psychiatric condition, and therefore extremely restricted work capacity, she would have virtually negligible capacity to effectively perform any ongoing workplace duties to an acceptable productive standard, as it was generally agreed by doctors that she did not have a capacity for employment now or into the foreseeable future.
152 Based on Ms Oliver’s observations and information, taking into account the medical reports, she thought it would be naïve to expect the plaintiff had a realistic capacity to adequately perform any workplace duties in a reliable, consistent and ongoing manner. Further, there would also be insurmountable barriers to retraining or study.
153 Ms Oliver thought that the jobs suggested by Work Focus were unsuitable for the plaintiff.
154 In summary, from an employment perspective, and in Ms Oliver’s experience and opinion as a recruiter, combining the plaintiff’s injury, pain, symptoms, reported medical opinions, work experience, restricted transferrable work ready skills and limited English, the plaintiff had major barriers to overcome when presenting herself to perform in a work environment. She would not consider the plaintiff for any vacancies without a medical clearance stating the unrestricted duties she may safely perform.
The Defendant’s Medico-Legal Evidence
155 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff in January and October 2008 and September 2009.
156 On initial examination, Mr Polke thought the plaintiff’s back condition had not resolved and was still contributed to by work. He diagnosed lumbar disc bulges. Whilst he did not mention non organic factors on examination, Mr Polke noted there was some exaggeration of symptomatology.
157 Mr Polke noted the CT scan of October 2007 showed a diffuse posterior L5‑S1 bulge with disc degeneration compressing the descending S1 nerve roots bilaterally. He noted there was also a diffuse posterior L4-5 disc bulge with possible central annulus tear indenting the ventral thecal sac at L4-5 without significant neural compression. There was also a mild posterior disc bulge at L3-4 without neural compression.
158 Mr Polke commented on the MRI report in a supplementary report. He noted the MRI reported a mild broad-based disc bulge associated with a small central annular fissure. That contacted but did not compress the traversing L5 nerve root in the subarticular/lateral recess. A mild to moderate degree of facet joint arthropathy was seen.
159 Mr Polke thought that confirmed the plaintiff suffered from no major disc damage and there was no evidence of neural compression. He considered it likely the plaintiff would be able to resume her job within the next few weeks but she should avoid heavy lifting and twisting.
160 Following re-examination in 2008, Mr Polke concluded that the plaintiff may well suffer from some low back pain but her psychological state appeared to be the predominant problem. He thought her injury was trivial.
161 Mr Polke considered the plaintiff should be able to return to work. He agreed with the Recovre report that the plaintiff was pain focussed and that she appeared to overreact to what emerged to have been a trivial injury.
162 On re-examination in September 2009, the plaintiff moved very gingerly and her range of movements was decreased by about half. Straight leg raising test was reduced to forty degrees bilaterally but the sciatic stretch test was negative. There was no neurological deficit.
163 Mr Polke noted the recent MRI scan of May 2009 which showed mild to moderate lower lumbar intervertebral disc degenerative changes with the most pertinent finding being a shallow left asymmetric disc bulge at L4-5 which contacted and mildly displaced the left L5 nerve root within lateral recesses. He noted there was no evidence of metastatic disease.
164 Mr Polke concluded the plaintiff suffered from degenerative disc disease in the lumbar spine, most probably aggravated during work. He thought there appeared to be a significant functional overlay.
165 From a physical point of view, Mr Polke thought the plaintiff had a current work capacity, particularly for her Compass job. Judging by her slow progress over the years, he noted it was unknown whether she would be ready for heavier tasks such as those with the defendant.
166 Mr Polke thought the plaintiff suffered from degenerative disc disease and an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He did not believe employment was still materially contributing to the claimed injury. He thought the plaintiff probably was not fit for pre-injury duties and she should avoid repeated bending and heavy lifting, but then said she could resume work in the Compass job on a gradual basis.
167 Having been provided with the Work Focus report, Mr Polke advised in December 2009 that the jobs of sales assistant, console operator cashier, mailing clerk, light duties and product quality controller would be suitable for the plaintiff.
168 Dr Malcolm Brown, occupational physician, examined the plaintiff on 20 September 2010.
169 On examination, the plaintiff walked normally with no limp but moved stiffly. There was no evidence of overt anxiety or depression. On informal observation, the plaintiff was observed to bend when sitting and standing without difficulty.
170 Dr Brown noted the plaintiff groaned throughout the physical examination. There were inconsistencies on straight leg raising. There was restricted spinal movement.
171 Dr Brown concluded the physical examination showed gross inconsistencies, positive Waddell’s signs and abnormal illness behaviour. He noted the plaintiff was also being treated for depression and that the inconsistencies seen on examination were much greater than would normally be expected with a treated depressive condition.
172 Dr Brown thought the radiological findings were widespread in the asymptomatic population and were unlikely to have much clinical significance. He considered there was no radiological or clinical evidence of a serious spinal injury.
173 Overall, Dr Brown concluded the plaintiff had mild uncomplicated lower back pain without evidence of a serious spinal injury. He thought there were clearly psychosocial factors affecting her physical presentation, as well as significant abnormal illness behaviour.
174 In Dr Brown’s view, there appeared to be some minor loss of spinal function relating from the compensable injury and he thought the plaintiff was likely to have some minor impairment for the foreseeable future. He considered the prognosis was difficult to anticipate due to the psychological factors, but it was reasonably positive and there was unlikely to be any significant deterioration. He thought the plaintiff did not require further physical treatment.
175 Dr Brown considered there was some mild partial functional incapacity for employment as a result of the compensable injury and that the plaintiff had no capacity for particularly strenuous physical work and tasks. In his view, it was difficult to state whether this situation would persist for the foreseeable future and that aspect could be re-assessed once her psychiatric condition improved.
176 Dr Brown thought the plaintiff was capable of undertaking suitable employment from a physical point of view. He considered she should avoid tasks involving constant bending or heavy lifting but otherwise, she had a good capacity for employment.
177 Mr Simm, orthopaedic surgeon, examined the plaintiff on two occasions, initially in October 2010, and most recently on 24 July 2012.
178 On the first examination, the plaintiff reported lumbar pain radiating to the sacroiliac regions and to both buttocks with pain radiating down the right leg to the right foot.
179 Mr Simm noted the plaintiff presented an amplified clinical picture of pain and disability, leaning forwards in the waiting room, holding her back with both hands. She walked with a right-sided limp.
180 On examination, there was marked restriction of thoracolumbar movement in all directions with increase in overt pain behaviour when movements were performed. There was tenderness to palpation in the lumbar spine and Waddell’s tests were positive. Neurological examination of the lower limbs revealed non organic findings and on manual muscle testing, there was marked collapsing weakness of all muscle groups in the lower limbs.
181 Mr Simm considered the apparent weakness on formal testing was not consistent with the fact the plaintiff had been previously able to walk on her toes and heels and adopt a semi squatting position.
182 Mr Simm reviewed the CT scan of October 2007 and the MRI scan of May 2009.
183 Mr Simm then thought the diagnosis was probably symptomatic lumbar disc degeneration with referred symptoms into the lower limbs but no clinical signs of radiculopathy. In his view, the special investigations had not demonstrated any neural compression. He thought it was difficult to evaluate the physical condition of the plaintiff’s back which had been somewhat obscured by the non organic physical signs which were associated with the development of a Pain Syndrome.
184 Mr Simm thought there was significant impairment and loss of function of the back resulting from symptomatic lumbar disc degeneration. Despite the non-organic factors, he thought the plaintiff presented as an entirely genuine person and he accepted the pathology on MRI could be responsible for impairment and loss of function of the back which was permanent.
185 Mr Simm thought the plaintiff was incapacitated for physical forms of employment as a result of the sequelae of the Pain Syndrome.
186 Although the plaintiff had a theoretical capacity for suitable employment, based on the anticipated clinical course of her physical condition, Mr Simm commented, when all factors were taken into account, there was no prospect of her returning to any form of gainful employment, noting the two unsuccessful attempts to return to light work and the plaintiff’s previous work experience and language difficulties.
187 On re-examination, the plaintiff again showed marked overt pain behaviour demonstrating thoracolumbar movement, gasping in pain. Again, Waddell’s tests were positive.
188 Neurological examination of the lower limbs revealed no clinical signs of radiculopathy. There was some minor change to pin prick sensation in the right leg. The plaintiff had normal knee and ankle reflexes.
189 Mr Simm noted he had previously observed that the plaintiff could walk on her toes and heels, adopt a semi squatting position and stand on each leg, indicating muscle power in the major myotomes of the lower limbs were normal.
190 Mr Simm concluded the plaintiff’s condition was essentially the same as when previously examined. He thought she probably had ongoing symptoms from lumbar disc degeneration with referred symptoms into the lower limbs but no clinical signs of radiculopathy.
191 Mr Simm confirmed his original view that the investigations did not demonstrate changes likely to cause neural compression. He thought the plaintiff had a chronic spinal Pain Syndrome and associated emotional disturbance, which was permanent.
192 Mr Simm concluded the plaintiff’s physical incapacity for unrestricted employment related to constitutional degenerative lumbar disc pathology. However, on the basis of a history of initiation and aggravation of her symptoms in the workplace with no period of recovery, he presumed it had been accepted employment was still a significant contributing factor to her current condition.
193 Mr Simm thought the plaintiff was currently physically incapacitated for pre-injury work and would remain so indefinitely. He thought she could not undertake alternative forms of physical employment and was now confined to light work with some flexibility in postures and restrictions on lifting. He noted the plaintiff seemed to have a firmly held self belief of ongoing injury and disability. He considered the Chronic Pain Syndrome and associated psychological disturbance would almost certainly keep the plaintiff out of the workforce indefinitely.
Vocational Evidence
194 Recovre provided a multidisciplinary assessment report on the plaintiff’s functional capacity in May 2008.
195 It was concluded the plaintiff was somewhat pain focussed and certainly scared to move. She was considered to have demonstrated moderate levels of inconsistency during evaluation and somewhat excessive pain behaviour.
196 However, it was also noted the plaintiff’s pain was mechanical and the problem was lumbar instability.
197 A 130-week vocational assessment report was completed by Karen Marshman, rehabilitation consultant from Work Focus, in November 2009.
198 Ms Marshman suggested the plaintiff was suitable for work as a sales assistant light duties, console operator/cashier, mailing clerk (light duties) and product quality control product examiner.
Overview
199 There is no dispute in this case that the plaintiff suffered a compensable injury to her lower back during the period of employment.
200 The defendant accepted liability for the payment of weekly payments and medical expenses. The plaintiff’s claim for permanent impairment of her lower back pursuant to s98C of the Act was also accepted.
201 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
202 It is generally accepted by medical examiners that during the period of employment, the plaintiff suffered an aggravation of underlying disc degeneration at L4-5 which was previously asymptomatic.
203 Mr Barrett, who saw the films, also thought there were painful ruptures involving the three lower lumbar intervertebral discs from L3 to S1 level, a view not shared by other examiners. However, Mr Simm accepted the pathology on MRI could be responsible for impairment and loss of function of the back which was permanent.
204 Whilst there was some debate as to the significance of the radiological findings in this case, the evaluative task is addressed to the impairment and not the injury itself which caused the impairment.
205 In the present case, it was submitted by counsel for the defendant that the plaintiff could not establish that organically-based pain and suffering consequences satisfy the statutory test of seriousness.
206 Counsel for the plaintiff submitted the plaintiff satisfied the test in terms of both pain and suffering and loss of earning capacity.
207 I found the plaintiff to be a truthful genuine witness who do not overstate her symptoms or restrictions.
208 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
209 There was no evidence challenging the genuineness of the plaintiff’s complaints. In fact, Mr Simm, despite finding a functional component to her presentation, thought the plaintiff presented as entirely genuine.
210 Counsel for the defendant conceded the defendant had not made any inroads on the plaintiff’s credibility and that she described at least quite extensive symptoms. It was submitted, however, that it was not clear what consequences flowed from the physical condition.
211 Pursuant to s134AB(38)(h) of the Act, psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
212 Accordingly, I am required to disregard psychological factors in considering the plaintiff’s application under sub-paragraph (a).
213 I am also, before undertaking the analysis of the seriousness of the lumbar spine injury, required to identify the consequences that are organically-based in origin.
214 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, paragraph 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, … requires that any psychological or psychiatric overlay be stripped aside. …”
215 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
216 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, at 652-3, that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis … . Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. … .”
217 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, where his Honour said, at paragraph 19:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
218 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at paragraphs 19-20. In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”
219 I accept, having considered these authorities, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at paragraph 50:
“… if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”
220 All medical practitioners involved in the present case accept that there is an organic component to the plaintiff’s presentation.
221 Those relied upon by the defendant found in addition there was a non-organic component present.
222 On examination three years ago, Mr Polke thought there was a probable aggravation of degenerative disc disease but there was also significant functional overlay.
223 Dr Brown, whilst finding inconsistencies and non-organic features to the plaintiff’s presentation and concluding there was no evidence of a serious spinal injury, overall he thought there appeared to be some minor loss of spinal function relating to the compensable injury and a resulting minor partial incapacity for work.
224 Finding non-organic signs on presentation, Mr Simm thought there was probably a symptomatic lumbar disc degeneration with referred symptoms in the lower limbs. He considered there was probable ongoing contribution to the plaintiff’s condition from an organic basis, but again, there was the presence of an emotional disturbance.
225 Whilst the vocational assessor from Recovre noted non-organic factors in the plaintiff’s presentation, it was also accepted that the plaintiff’s pain was mechanical and the problem was lumbar instability.
226 Medical opinion relied upon by the plaintiff was to the effect that the plaintiff’s condition was predominantly organically-based. Dr Ristevski thought the plaintiff sustained a lumbar injury developing chronic lumbar pain with underlying disc disruptions of L3-4, L4-5 and L5-S1 as per CT scan examination, noting there was complicating sleep disruption, anxiety and depression.
227 Professor Chambers thought the plaintiff suffered from degenerative disease of the lumbar spine. Mr Barrett concluded the plaintiff had sustained painful ruptures involving her lower three lumbar intervertebral discs from the L3 to S1 levels, each disc producing a posterior disc bulge, pushing into the lumbar theca and close to the emerging nerve roots, particularly on the right.
228 Mr Wilde thought the plaintiff sustained a central disc protrusion at L4-5 with intermittent bilateral L5 radiculopathy. As a secondary phenomenon, she developed reactive depression. He diagnosed L4-5 central disc prolapse which produced intermittent bilateral L5 radiculopathy.
229 Dr Sutcliffe believed the plaintiff sustained onset of disc derangement at L4-5 as a result of work.
230 Taking into account the medical and radiological evidence, my acceptance of the plaintiff’s evidence and the lack of challenge in relation thereto, I am satisfied there is organic injury causing physically-based symptoms preventing the plaintiff from working and significantly interfering with daily activities.
Consequences
231 I accept that the plaintiff continues to suffer constant low back pain radiating to both legs, worse on the right. Pain-relief medication is to the higher end of the scale with the plaintiff requiring ongoing regular Lyrica, and at time times Tramal.
232 As Dodds Streeton JA stated in Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267 at paragraph 199, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
233 As a result of her pain and restriction, the plaintiff is incapable of performing her pre-injury manual duties and she now has a limited capacity for restricted duties. The consensus of medical pinion is to this effect.
234 In such circumstances where the plaintiff is a middle-aged woman with no particular skills or training and has limited English, the loss of earning capacity consequence of her injury, when judged by a comparison with other cases in the range of possible losses of body function, may fairly described as being more than significant or marked and as being at least very considerable.
235 Therefore, I am satisfied the plaintiff has a serious injury.
236 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
237 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.
238 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
239 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or 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.
240 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 worker’s earning capacity.
241 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) therein.
242 I am therefore required to determine a “without injury” earnings figure – see Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 70.
243 Submissions were made by counsel in this regard.
244 Counsel for the defendant did not really take issue with the suggested figure of $32,497 or $625 per week. Sixty per cent of that figure is $19,498 or $374 per week.
245 Counsel for the defendant submitted, as a general proposition without resorting to actual figures, the plaintiff did have a capacity for suitable work such that she would therefore not suffer the requisite loss. Reliance was placed on Mr Polke’s now somewhat outdated view that the plaintiff had a capacity for her Compass job.
246 Further, counsel for the defendant submitted the plaintiff had a capacity for the jobs suggested by Work Focus and on that basis, she could not establish the requisite loss.
247 However, taking into account all the evidence, I am satisfied that the plaintiff dose not have a capacity for suitable employment having considered the factors set out in s5 of the Act.
248 The plaintiff’s treaters, Dr Ristevski and Mr Barrett, both considered she had no capacity for work into the foreseeable future. Dr Ristevski, medico-legal examiner, Dr Sutcliffe, and vocational assessor, Mary Oliver, specifically rejected the jobs suggested by Work Focus as being suitable for the plaintiff.
249 Professor Chambers, whilst not commenting specifically on the plaintiff’s work future, when he last saw her in January 2008, thought the main impact of the plaintiff’s back condition had been on her ability to work.
250 Mr Wilde thought the plaintiff was restricted in employment as she could not bend, lift, twist, pull or stoop and perform any of those activities repetitively.
251 Mr Polke, three years ago, thought the plaintiff was fit to do the jobs set out in the vocational assessment.
252 Mr Simm, the most recent examiner relied upon by the defendant, last seeing the plaintiff in July this year, thought from a purely physical point of view, the plaintiff had a capacity for light work. He did not comment on the jobs suggested by Work Focus.
253 Dr Brown conceded there appeared to be some minor loss of spinal function relating to the compensable injury and a resulting minor partial incapacity for work. He did not comment on the suggested jobs.
254 Whilst I accept the plaintiff is motivated to find further employment, I accept the submission by her counsel that what she is doing at the moment, on the background of a demanding family situation, is unrealistically looking for employment which medically she would not be able to sustain. Further, she has had no experience in retail sales whilst living in Australia.
255 I accept that the plaintiff’s inability to stand and sit for long periods and her inability to lift other than very light weights would prevent her from successfully engaging in even light employment. The plaintiff would struggle to do this type of work even on a part time basis due to her back and right leg symptoms. These difficulties were confirmed on her previous unsuccessful attempts at returning to work.
256 Taking into account all the evidence, I am satisfied that the plaintiff does not have the capacity now and in the foreseeable future to obtain and maintain light work in which she would earn in excess of $400 or so per week.
257 Accordingly, I am satisfied the plaintiff has suffered a permanent loss of earning capacity of forty per cent.
258 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
259 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
260 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
261 I am satisfied the plaintiff has established that she has a loss of earning capacity of forty per cent or more within the meaning of s134AB(38)(e) of the Act.
262 In such circumstances, having made a finding of serious injury in the context of loss of earning capacity, I am not required to consider the pain and suffering consequences of the plaintiff’s injury.
263 As the plaintiff’s back condition has persisted for nearly five years with no significant improvement, I am satisfied that her impairment in relation thereto is permanent.
264 Whilst these issues were not raised greatly in cross examination, I accept that the plaintiff’s breast cancer has been under control since the cessation of chemotherapy in late 2011 and she experiences no ongoing problems in relation thereto, a situation confirmed by her oncologist, Dr White. I also accept the plaintiff’s unchallenged evidence that her right wrist has recovered since surgery and does not interfere with her ability to perform daily activities.
265 Having found a serious and permanent impairment of the plaintiff’s lumbar spine, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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