Atak v Hilton Hotels of Australia (Melbourne) Pty Ltd

[2007] VMC 2

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No. U02647791

Sibel Atak	Plaintiff
v
Hilton Hotels of Australia (Melbourne) Pty Ltd	First Defendant
CGU Workers’ Compensation (Vic) Ltd	Second Defendant

---

MAGISTRATE:	S Garnett
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 24, 28 & 29 May 2007
DATE OF DECISION:	20 June 2007
CASE MAY BE CITED AS:	Atak v Hilton Hotels of Australia (Melbourne) Pty Ltd; CGU Workers’ Compensation (Vic) Ltd
REASONS FOR DECISION

---

Catchwords: Compensable Injury – Effect of subsequent non- compensable injury - Current work capacity - no current work capacity – “degree of realism” required

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Mac Tiernan
For the Defendant  HIS HONOUR:	Mr Trigar

1.  The plaintiff claims weekly payments of compensation pursuant to the provisions of the Accident Compensation Act 1985 as a result of back injuries and a subsequent psychological reaction/depression which arose out of or in the course of her employment and in particular on 15 March 2001.

2.   The plaintiff’s initial claim was accepted by the second defendant pursuant to the Act and she received weekly payments for all periods of incapacity relating to the injuries until 5 November 2006 when the second defendant terminated the payments because it alleged that she had a “current work capacity”. The plaintiff alleges that she is still suffering from the effects of the injuries sustained on 15 March 2001 and that she has “no current work capacity” which is likely to continue indefinitely.

3.  The defendants, by way of an Amended Defence dated 2 April 2007 not only allege that the plaintiff has a “current work capacity”, but, that if the plaintiff suffered injury, which is denied;

- her incapacity is not materially contributed to by an injury out of or in the
course of her employment;

- her employment is not a significant contributing factor to her claimed injury;

- the plaintiff has not sustained an injury arising out of or in the course of her
employment.

4.   On behalf of the plaintiff, her treating general practitioner, Dr Shyam, Ms Durmaz, treating Psychologist, Dr Clayton Thomas, Consultant in Rehabilitation and Occupational Medicine and Dr Kornan Psychiatrist retained for medico legal purposes, gave evidence. In addition, a large number of exhibits were tendered including records or reports from;

- Dr Shyam;

- Dr Clayton Thomas;

- X Ray, CT Scan and MRI reports;

- Ms Durmaz;

- Dr Kornan;

- Glenroy Physiotherapy Clinic;
- Dr Selvaratnam, Physiotherapist;
- Ambulance and Police;
- The Northern Hospital;

- Mr Lo, Surgeon;

- Dr Baglar;

- Mr Mangos, General Surgeon;

- Mr Flanc, General Surgeon;

- Dr Robertson, Radiologist;

- Ergo Focus, Ergonomics, Injury Management, Occupational Health & Safety;

- Dr Brownbill, Neurosurgeon;

- Ms Schneider, Australian Vocational Link.

5.  Dr Shan, Psychiatrist, Dr Entwisle, Psychiatrist and Dr Brown, Occupational Physician, gave evidence on behalf of the defendants. A number of exhibits were also tendered including records or reports from;

- Ms Durmaz;

- Dr Shan;

- Dr Entwisle;

- Dr Brown;

- Vocational Assessment Report of Ms Martin;

- Mr Sinha, General Surgeon;

- Mr Ian Jones, Orthopaedic Surgeon;

- Mr de la Harpe, Orthopaedic Surgeon;

- Transport Accident Commission.

The central issues to be determined are:

A.	Does the plaintiff still suffer from the effects of the injury and any sequelae that arose out of or in the course of her employment on 15 March 2001 and what effect, if any, do the injuries sustained by the plaintiff in the car accident on the 3 June 2004 have on her current condition?
B.	If the plaintiff still suffers from the effects of the injuries sustained on 15 March 2001, does she have a “current work capacity” or “no current work capacity” in accordance with the Act?

History

6.  The plaintiff is 54 years of age having been born on 25 July 1952. She came to Australia from Cyprus in 1970. Her first language is Turkish, her second language is English, and she was able to understand and answer most questions during her evidence without the assistance of an interpreter. She completed 8 years of schooling in Cyprus. Her previous occupations included that of a sewing machinist for 5 months in 1971 at Yakka, factory worker/packer at Thorn for 2 years, machine operator at Invicta Carpets for 5 years and canteen assistant at the Panch Hospital for 3-4 years. She commenced employment as a room attendant with the first defendant in March 1997.

7.  The plaintiff’s duties as a room attendant involved cleaning hotel rooms, which required dusting, vacuuming, making beds, cleaning bathrooms and toilets, mopping and replenishing bathroom supplies.

8.  On 15 March 2001 whilst changing linen on a King Size bed she was bending forward with her knees bent and experienced low back pain on the right side. She consulted Dr Shyam who certified her unfit for work until 26 March 2001 whereupon she returned to work on modified duties and reduced hours. The plaintiff lodged a workcover claim, which was accepted by the second defendant pursuant to the Act. The hours worked by the plaintiff gradually increased but had to be reduced because of increasing back pain. In particular, she was transferred to the engineering department where she was required to perform clerical and administrative tasks, which, according to the plaintiff, also required her to sew linen, lift and stack linen, clean toilets and fold pillows. She gave evidence that she had difficulty coping with these duties because she was required to use stairs to access the department. Consequently, after obtaining her gaming room license, a job offer was made to her by her employer on 31 May 2004 to continue working 24 hours per week dividing her time between the linen and gaming rooms.

9.  Over a period of 9 months, leading up to this job offer the plaintiff was attending Dr Shyam for workcover modified duties certificates and was complaining of ongoing back pain, sleep disturbance and headaches. Ultimately, the plaintiff only managed to return to work on this program for one day, as she was involved in a car accident on 3 June 2004 near her doctor’s surgery shortly after obtaining a continuing workcover certificate. Although the details of the accident are vague due to the plaintiff losing consciousness in the accident, it appears on the evidence that it was a minor accident whereby she inadvertently pressed the accelerator rather than the brake causing her to drive into bushes and then into another car at approximately 20 kmph.

10.The circumstances of the car accident do not invoke the operation of S 83 (1) (d) of the Act.

11.The plaintiff was initially attended by Dr Alpay of the clinic and transferred to the Northern Hospital by ambulance for observation and tests.

12.In evidence, the plaintiff initially denied injuring her back in this accident but it is clear having regards to the history given by her to the hospital and doctors together with the details of injury recorded on her TAC claim form that she did sustain injuries to her neck, right shoulder and to her back.

13.The plaintiff lodged a claim for compensation under the Transport Accident Act 1986 citing neck and back pain, head pain, shoulders and legs, which was accepted by the Transport Accident Commission. The plaintiff received loss of income benefits until April 2005, although they should have been terminated on 4 February 2005 in accordance with a notice issued by the Transport Accident Commission on 8 December 2004. The Commission relied on an opinion from Dr Lefkovits who examined her on 31 August 2004 that she had suffered soft tissue injuries in the car accident and was fit to return to her pre accident duties.

14.During this period, she was treated by Dr Alpay for her car accident injuries and provided with TAC total incapacity certificates and by Dr Shyam for her work related injuries who certified that she was fit for modified duties because of her work injuries.

15.Subsequent to the plaintiff receiving notice that her TAC loss of income benefits were to be terminated she did attempt to return to work on 4 February 2005 in the sewing department but only lasted a few hours because of her back pain. She indicated that at that stage her neck and shoulder condition was “not too bad”. After ceasing work her workcover payments resumed.

16.The plaintiff once again attempted to return to work on 15 July 2005 where she was required to inspect rooms after they had been cleaned but she gave evidence that she could not cope, as the job required a lot of walking and bending which made her condition worse and she ceased work after 4 hours. Ultimately, a final return to work plan was formulated on 7 June 2006 effective as from 24 July 2006 performing housekeeping and laundry duties gradually increasing in hours but she was required to undergo an intensive physiotherapy program before commencing which did not eventuate. The plaintiff has therefore remained off work since 15 July 2005.

Medical Evidence

17.There is a considerable difference in medical opinion as to the nature, extent and ongoing affect of the injuries sustained by the plaintiff in the work incident on 15 March 2001 and car accident on 3 June 2004.

18.Dr Shyam, General Practitioner, confirmed that she has treated the plaintiff for her work related injuries and not the injuries sustained on 3 June 2004 in the car accident. Her evidence was that the plaintiff was experiencing ongoing back pain at the time of the motor vehicle accident and that the plaintiff was frustrated and depressed prior to the car accident occurring. She confirmed that the plaintiff did not tell her that her back was injured in the motor vehicle accident but was of the opinion that the motor vehicle accident resulted in the plaintiff becoming more distressed and depressed. She gave evidence that she did not believe that it was necessary to refer the plaintiff for psychological or psychiatric treatment prior to the car accident. Dr Shyam referred the plaintiff for treatment including physiotherapy and hydrotherapy but has not prescribed any medication including anti depressants. Dr Shyam confirmed she has referred the plaintiff to Mr Lo, Mr Griffiths, Mr de la Harpe and Mr Clayton Thomas and diagnosed the plaintiff as suffering from a chronic pain syndrome and depression. She conceded that the plaintiff’s back condition could now be age related.

19.Ms Durmaz, Psychologist, commenced treating the plaintiff on 2 July 2004 on referral from Dr Alpay following the car accident. She obtained a history from the plaintiff that she had injured her neck and right shoulder in the motor vehicle accident and that she had back pain because of a work injury for 4 years. Ms Durmaz has been treating the plaintiff on a regular basis since and during this period referred her to Dr Selvaratnam for feldenkrais treatment and to Dr Baglar because of symptoms of sleep disturbance. She obtained a history of symptoms from the plaintiff, which included; back and right leg pain, sleep disturbance, lethargy, feeling angry, family tension, tearfulness and feeling useless and diagnosed that the plaintiff has an adjustment disorder with anxiety and depression. She conceded that her initial diagnosis was post traumatic stress disorder and that her current diagnosis is based on subjective symptoms as conveyed to her by the plaintiff. She confirmed in evidence that when TAC ceased payments she contacted the second defendant to obtain approval for ongoing psychological treatment under workcover on the basis that the plaintiff’s condition was in part due to the work injury. Ms Durmaz also gave evidence that Dr Parekh, psychiatrist, also wrote to her in April 2005 recommending that the plaintiff continue to receive counselling from her for her depression as he had formed the opinion that the plaintiff’s depression was also due to her work injury.

20.Mr Flanc, General Surgeon, initially examined the plaintiff for medico legal purposes on 4 May 2005 in relation to the car accident injuries and re-examined her on 9 May 2007. He obtained a history from the plaintiff that she had injured her neck, shoulders and low back in the car accident and that the pain in her back was “100% worse” following the car accident. His opinion is that the plaintiff aggravated pre- existing disc degeneration because of the work incident, which was mildly to moderately aggravated because of the car accident. He also noted that it was likely she was suffering from a psychiatric disturbance, which was significantly influencing her symptoms and that she required management of her chronic pain.

21.Dr Robertson, Radiologist, was engaged by the plaintiff’s solicitors to provide an opinion on the various radiological tests performed with particular emphasis on the effect of the car accident on the plaintiff’s spine. She did not believe any of the radiological films demonstrated evidence of any aggravation following the car accident.

22.Mr de la Harpe examined the plaintiff on two occasions being 19 September 2005 and 3 October 2005 on referral from Dr Shyam. Based on his examination and review of the MRI scan dated 23 September 2005 he believed the plaintiff had age related changes of the lumbar spine without the need for surgery and recommended hydrotherapy. He noted in his report to Dr Shyam dated 3 October 2005 that; “She has had pain for 5 years now. It is likely that this is a chronic situation and there will be no permanent resolution from it”.

23.Mr Mangos, General Surgeon, examined the plaintiff for medico legal purposes on 4 December 2006. On the history provided he considered the complaints of back ache was consistent with the injury occurring on 15 March 2001 and there was some aggravation due to the car accident in the order of 10-15%.

24.Dr Kornan, Psychiatrist, examined the plaintiff for medico legal purposes on 23 November 2006. He diagnosed that the plaintiff is suffering from an adjustment disorder of chronic moderate intensity, which was aggravated by the car accident. He did not believe the failure of the plaintiff to be referred to or receive psychological or psychiatric treatment prior to the car accident was significant in terms of apportioning the causal relationship of the plaintiff’s condition on either the work injury or car accident injuries.

25.Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine commenced treating the plaintiff in November 2006 on referral from Dr Shyam. Although not being provided with a history of the car accident by the plaintiff he diagnosed that the plaintiff is suffering from symptomatic spondylosis and has pain arising from the facets and discs of the lumbar spine with an emotional reaction.

26.Mr Brownbill, Neurosurgeon, examined the plaintiff for medico legal purposes on 9 May 2007. He reviewed all radiological reports and many of the reports filed in this proceeding and considered the work injury caused aggravation of a pre-existing asymptomatic lumbar spine degenerative condition with further mild aggravation due to the car accident together with an emotional reaction with likely depression.

27.Dr Entwisle, Psychiatrist, examined the plaintiff on behalf of the TAC on 8 September 2004 and the defendants on 14 March 2006. At the initial examination he obtained a history from the plaintiff that she had not experienced any emotional difficulties because of the work injury, which he found surprising. Nevertheless, he diagnosed a mild adjustment disorder with anxiety, irritability and sleep disturbance an opinion he maintained following his re-examination of her in 2006. He assessed her as having 6% impairment when assessed according to the Clinical Guidelines to the Rating of Psychiatric Impairment (as prepared by the Medical Panels October 1997) and attributed a third of this impairment to each of; the physical symptoms (neck and headaches), thyroid issues, and the pre-existing back problems and the experience of chronic pain. In his evidence, he described the plaintiff as “pain prone” and “pre- occupied with pain” and conceded that her condition is in part related to her work injury.

28.Dr Shan, Psychiatrist, examined the plaintiff on 16 February 2007 on behalf of the defendants. He did not believe the plaintiff was depressed or anxious and the fact the she was not on anti depressant medication meant her emotions were within normal limits. Furthermore, he believed that symptoms of irritability and frustration because of a disability were not evidence of a psychiatric illness but that the plaintiff may benefit from pain management. He conceded he did not question the plaintiff about issues such as self esteem, sleep disturbance or future expectations and was not aware at the time of his examination that the plaintiff had previously been referred to a psychiatrist and taken anti depressant medication.

29.Dr Brown, Occupational Physician, examined the plaintiff on behalf of the defendants on 9 March and 28 June 2006. His initial report dated 9 March 2006 was prepared without access to information provided by the treating doctors and he diagnosed that the plaintiff had suffered a musculo-ligamentous strain to the low back from which she had recovered. He did not believe the radiological evidence demonstrated any significant spinal pathology, there was clear evidence of abnormal illness behaviour, and that the plaintiff’s current condition was due to inactivity.

30.Mr Sinha, General Surgeon, examined the plaintiff on behalf of the defendants on 2 May 2001 and then again on 10 October 2001. He diagnosed that the plaintiff was suffering from discogenic pain with MRI evidence of degenerative disease at the lumbar level.

31.Mr I Jones, Orthopaedic Surgeon, examined the plaintiff on behalf of the defendants on 5 February 2007 and after reviewing the radiological investigations and numerous medical reports provided to him was of the opinion that the plaintiff has degenerative disease at the lower lumbar level, which was temporarily aggravated by the work incident from which she has now recovered.

32.Does the plaintiff still suffer from the effects of the injury and any sequelae that arose out of or in the course of her employment on 15 March 2001 and what effect, if any, do the injuries sustained by the plaintiff in the car accident on the 3 June 2004 have on her current condition?

33.The defendants submitted that based on the evidence of Dr Brown and Mr Jones the plaintiff either temporarily aggravated an underlying degenerative condition or sustained a musculo-ligamentous strain from which she has now recovered.

34.In the alternative, it was submitted that if the affect of the work incident remains, it has been superseded by the affects of the injuries sustained in the car accident.

35.The Court was referred to the decisions of Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120, Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, Aitkin v Goodyear Tyre & Rubber Co. (Aust) Ltd (1946) 46 SR (NSW) 20 and Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365 to support what are established principles of workers compensation law, those being;

-	“compensation is paid in respect of death or total or partial incapacity resulting from an injury, not in respect of the injury itself”. per Latham CJ at page 129 in Ward’s Case;
-	if an employment injury “produced only temporary incapacity, which would in time disappear, the fact that the worker whilst still temporarily incapacitated sustained a non-employment injury which totally and permanently incapacitated him, would not increase his right to workers compensation. His right to this would cease when, in the ordinary course of events, his employment injury would have ceased to be incapacitating. It is only in respect of his employment injury as a source of incapacity that he is entitled to workers compensation” – per Jordan CJ in Salisbury at page 161.
36.	In support of their submissions, the defendants relied on the fact that the plaintiff continued to work on modified duties until the car accident and did not require psychological or psychiatric treatment until after the car accident. They submitted that she gave conflicting histories to treating doctors, medico legal consultants and the Court as to the injuries sustained in the car accident and its effect on her back condition. The defendants also contended that the plaintiff “conveniently played down” her neck and shoulder symptoms in February 2005 when she sought to have her workcover payments resumed for her back injury. The defendants also questioned her motivation to work.
37.	After considering the evidence, I am unable to accept the defendants’ submissions on these issues. It is clear on the evidence of the plaintiff and supported by the documents tendered that the plaintiff was having trouble coping with the modified duties provided to her by her employer. She not only complained to Dr Shyam but also to Ms Farquhar. In November 2003, her complaints to Ms Farquhar included; pain on bending and sitting for more than a few minutes, inability to use stairs, pain in knee and legs and problems with her stomach from the medication she was prescribed. She also told Ms Farquhar that she enjoyed being at work.
38.	The plaintiff’s difficulties with her work duties and ongoing symptoms continued in 2004 as evidenced by a further change in duties and her complaints to Dr Shyam of ongoing back pain sleep disturbance and headaches. The failure of Dr Shyam to refer her to a psychologist or psychiatrist prior to the car accident does not mean she was not suffering anxiety/depressive symptoms prior to it occurring. Dr Shyam gave evidence that subsequent to the car accident the plaintiff became “more distressed and depressed”. Dr Kornan believed the failure to refer may be due to a lack of astuteness on the treating doctor’s behalf rather than an absence of the condition.
39.	Despite the plaintiff’s denial of injuring her back in the car accident whilst giving evidence and the conflicting account of the extent of that injury to Mr Flanc, I find that, after considering all of the medical reports and records tendered, that the plaintiff temporarily aggravated her pre-existing symptomatic degenerative spinal condition in that accident. Furthermore, I find that because of the combination of the work injury and car accident injuries the plaintiff developed an adjustment disorder as diagnosed by Ms Durmaz, Dr Kornan and Dr Entwisle.
40.	The plaintiff’s current complaints are that she suffers from back pain, sleep disturbance, headaches, nervousness, feels frustrated and stressed, is tearful, has mood changes, is forgetful, has neck symptoms, right forearm pain due to using her right arm to balance as a result of her back pain and stomach problems.
41.	I find that the plaintiff still suffers from the effects of the work incident on 15 March 2001 whereby she aggravated an underlying degenerative condition of her spine as supported by the opinions of Mr Flanc, Mr Mangos and Mr Brownbill in addition to developing an adjustment disorder with anxiety and depression as supported by the opinions of Dr Shyam, Ms Durmaz, Dr Entwisle and Dr Kornan. I also find that the plaintiff no longer suffers from the effects of the injuries to her back and psychological condition because of the car accident on 3 June 2004, those conditions having being temporarily aggravated by it.
42.	Does the plaintiff have a “current work capacity” or “no current work capacity” in accordance with the Act?
43.	According to the medical opinions of Dr Shyam, Mr Flanc Mr Mangos, Mr Brownbill, Mr Jones and Dr Brown the plaintiff has the physical capacity for suitable work. Dr Kornan is of the opinion that the plaintiff is fit for part time work based on her psychological condition alone.
44.	However, as a result of the combination of her physical and psychological condition and when adopting a “realistic” approach, Dr Shyam, Ms Durmaz, Dr Kornan, Mr Flanc, Mr Mangos and Mr Brownbill are all of the opinion that the plaintiff has “no current work capacity”.
45.	Dr Clayton Thomas does not believe the plaintiff has a capacity to return to work at present and believes she should complete a pain management program at Dorset Rehabilitation Centre. As he explained, the primary objective of this program is to give the plaintiff increased skills to assist in coping physically and emotionally with her disability. He is of the opinion that the plaintiff may have a work capacity “down the track” but this is dependent on her emotional state.
46.	Dr Shan consistent with his diagnosis that the plaintiff does not have any identifiable psychological condition is of the opinion that there is no incapacity for work.
47.	Dr Entwisle expressed the opinion that the plaintiff is capable of performing her pre- injury duties and that she was “pain prone” and “pre-occupied with pain”. Nevertheless, he believed she would benefit from the program as proposed by Dr Clayton Thomas.
48.	The defendants tendered a Vocational Assessment Report from Susan Martin dated 26 July 2006. Notwithstanding the identification of significant barriers to employment for the plaintiff including her; perceptions in relation to incapacity, injury and pain focus, fear, physical deconditioning and depressed demeanour, Ms Martin identified a number of possible vocational options open to the plaintiff including; canteen attendant, product assembly, school crossing supervisor, hand packer, sandwich hand and wardrobe attendant. The plaintiff’s ability to perform these tasks was disputed by Michael Paris, Physiotherapist, Ergonomist and Occupational Health & Safety Consultant in his report dated 17 April 2007 and Ms Schneider in her Vocational Assessment Report dated 7 May 2007, which were tendered on behalf of the plaintiff.
49.	In addition, Mr Paris supports the need for the plaintiff to undergo a multi disciplinary functional restoration/pain management program and Ms Schneider has expressed the opinion that having regards to the plaintiff’s poor postural tolerance and physical ability, lack of education, transferable skills and diversity of work experience, lack of suitability as a candidate for vocational re-training, lack of sleep, lack of competitiveness and well entrenched chronic pain syndrome that the plaintiff could not gainfully engage in any realistic and meaningful work in the open or supported labour markets.
50.	I find that because of the combination of the plaintiff’s physical and psychological conditions, she has “no current work capacity”, which is likely to last indefinitely. I agree with and support the application of “a degree of realism” when considering this issue as has been applied by;

• Judge Higgins in Meehan v VWA 12 August 1996;

• Judge Strong in Lowe v Bacchus Marsh Secondary College 2 December 1998, Gacovski v Wiltari P/L 27 June 2006 and Cihan v Chiquita Mushrooms P/L 12 July 2006;

• Judge G D Lewis in Holt v Kleyn Plant Hire P/L 27 August 2002 and Levey v Apex Printing P/L 31 October 2005;

• Judge Coish in Vitoratos v VWA & Williams v Mullins Wheels 12 February 2004;

• Judge Bowman in Sumner v Multie Technology Distribution 19 April 2005, Baker v Byrne & CGU 27 September 2005, Mc Peake v David & Francine Bell & Ors 22 February 2006 and Atchison v Nestle Australia P/L 22 March

2007;

• Judge Jenkins in Opashinova v Melbourne Health 27 October 2005;

• Judge Lawson in Tran v Visy Recycling Operation P/L 2 December 2005;

• Judge Wood in Busuttil v Ford Performance Vehicles 28 April 2006 and Ivanovski v Menzies International 2 May 2006;

• Judge Hannan in Alic v Wiredex P/L 2 February 2007;

• Judge Morrow in Haeusler v Flexdrive Industries P/L 7 February 2007; and,

• Judge Barnett in Henderson v Nulab Professional Imaging P/L 19 February 2007

• Judge Dove in Stevenson v Racovolis Amalgamated Fish Agents P/L 25 May 2007.

51.In respect to the plaintiff having no current work capacity “which is likely to last indefinitely”, I apply the meaning as given by His Honour G D Lewis in Wright v Sunnyside House Inc on 6 October 2004 where he said; “indefinitely in S 93CC means “the foreseeable future”.

52.In the present case, the plaintiff is unlikely to have any capacity for suitable employment within the meaning of the Act unless she undergoes a functional restoration and pain management program as recommended by Dr Clayton Thomas and supported by Dr Entwisle.

53.Even then, any capacity that she may have will be dependent on her receiving appropriate ongoing psychological treatment as suggested by Dr Kornan and participating in an effective occupational rehabilitation program.

54.I find that having regards to her barriers to employment as identified by Ms Schneider, that the plaintiff will not have a “realistic” capacity for suitable employment in the foreseeable future pursuant to the Act.

55.Accordingly, the plaintiff is entitled to weekly payments at the rate applicable for “no current work capacity” from 6 November 2006.

56. I will hear Counsel on the appropriate orders, which result from my findings.

ORDERS: