Atherton v Victorian WorkCover Authority
[2018] VCC 525
•24 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04634
| NICOLE ALLISON ATHERTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2018 | |
DATE OF JUDGMENT: | 24 April 2018 | |
CASE MAY BE CITED AS: | Atherton v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 525 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – injury to the lumbar spine – pain and suffering damages and loss of earning capacity damages – whether plaintiff has abnormal illness behaviour – whether the plaintiff satisfies the threshold test for “serious injury”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Hayhill Pty Ltd v Hodge [2006] VSCA 194
Judgment: The application for serious injury certificate for pain and suffering damages and loss of earning capacity damages in respect of the injury to the plaintiff’s lumbar spine on 11 May 2014 is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn Lawyers |
| For the Defendant | Mr B McKenzie | Russell Kennedy |
HIS HONOUR:
1 The plaintiff brings this application by way of Originating Motion dated 5 October 2017. The plaintiff applies for leave to bring proceedings to recover damages in respect of both pain and suffering and loss of earning capacity arising from an injury to her lumbar spine on 11 May 2014 in the course of her employment with Costco Wholesale (“Costco”). At the time of the plaintiff’s injury, she was employed as a cashier at Costco’s premises at Ringwood.
2 The following evidence was adduced in the course of the hearing:
·the plaintiff gave evidence and was cross-examined
·the plaintiff tendered the following documentation:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”) pages 1 to 13, 15 to 50, 53 to 120, 123 to 131
·The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Court Book (“DCB”) pages 6.1 to 64 inclusive.
3 Mr McKenzie, on behalf of the defendant, identified the issues in this application as follows:
(a)The defendant accepted the occurrence of the injury to the plaintiff’s lower back on 11 May 2014;
(b)The plaintiff’s complaints of pain and disability are of a non-organic nature. The plaintiff has to disentangle the psychologically-based injuries and complaints from the physical injuries to her back;
(c)The plaintiff has a capacity to work up to full-time hours;
(d)The plaintiff has not established the pain and suffering consequences in relation to the statutory test for leave to be granted.
4 The plaintiff’s credibility in the course of this proceeding was challenged. The basis for the challenge to the plaintiff’s credibility was that she was reporting to doctors, symptoms and complaints that exhibited illness behaviour on her behalf. The plaintiff was also challenged on her capacity to engage in employment on a full-time basis, or at least on a substantial part-time basis.
5 There was no surveillance film shown of the plaintiff in the course of this application. The attack on the plaintiff’s credibility was based on the observations of the defendant’s medical practitioners, who have assessed the plaintiff for the purpose of this application.
6 I have had the advantage of seeing the plaintiff in the witness box and been cross-examined. I also have noted the history that she has given to all doctors in the course of these medical examinations for the purpose of this proceeding and that her complaints have been consistent.
7 I accept the plaintiff as being a truthful and accurate historian in relation to her medical complaints relating to her lower back. I also accept that the plaintiff is, and has been, acting in a stoical manner in relation to the pain that she has suffering since the injury with her employer, Costco.
The statutory scheme
8 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
9 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked, and as being at least very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
10 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
11 In this case, the defendant submitted that the plaintiff was required to disentangle the physical contributions to the pain and suffering from the psychological contributions. In the case of Meadows v Lichmore Pty Ltd,[3] the Court of Appeal approved of the method known as the two-step approach to determining this issue. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied upon by the plaintiff. If the answer to that question is “Yes” and the pain and suffering consequences satisfy the statutory criteria, then the plaintiff will succeed without any need for any disentangling of the physical contribution to the pain and suffering damages from a psychological contribution.
[3][2013] VSCA 201
12 If, on the other hand, the first question, as it is referred to, cannot be answered in the affirmative, then the plaintiff would need to take the next step and disentangle any psychological contributions to the pain and suffering consequences that are based on a physical injury.[4]
[4]Relevantly for Meadows v Lichmore Pty Ltd (ibid)
13 In this case, the preponderance of the medical evidence is that there is a substantial organic basis for the pain and suffering consequences that the plaintiff relies upon in this application.
14 Mr McKenzie, on behalf of the defendant, also relied on the authority of Jayatilake v Toyota Motor Corp Australia Limited,[5] in particular at paragraph 65, to submit that the plaintiff’s complaints to doctors in this case were functional or psychogenically determined. Mr McKenzie’s submission was based on the opinions of Dr David Barton and Dr Joseph Slesenger, both of whom are occupational physicians.
[5][2008] VSCA 167
The Plaintiff’s Background
15 The plaintiff is now forty-five years old. The plaintiff is in a de facto relationship and has a twenty-year-old son and a fifteen-year-old daughter. The plaintiff lives with her de facto partner and fifteen-year-old daughter.[6]
[6]PCB 1
16 The plaintiff’s education was limited to completion of Year 9. The plaintiff left school when she was halfway through Year 10.
17 The plaintiff’s work history has been consistent over her life, except for the interruptions of raising her two children. The plaintiff has engaged in the occupations of childcare, a swimming instructor and a customer service provider with both Bakehouse and Baker’s Delight.
18 The plaintiff worked at Woolworths for some four years as a customer service officer. For a period of time, the plaintiff also worked as an office manager for her, then, de facto partner’s business, known as Tree Force Trees. After that relationship ceased, the plaintiff then commenced employment with Costco as a customer service officer. The plaintiff’s employment commenced with Costco at the Ringwood facility on 6 November 2013.[7]
[7]PCB 2
The Plaintiff’s injury
19 The plaintiff injured her lower back in the following circumstances:
“On Sunday 11 May 2014, which was Mother’s Day, I was working as a cashier. I was bending down to scan items which were on the bottom rung of a customer’s trolley. I had to bend, reach and twist in order to pull a 9 kg bucket of laundry powder toward me so that I could apply the scanner. The scanner was not picking up the bar code so this involved further manoeuvring. I was bending to see the barcode number. As I stood I felt a sharp grabbing pain in my lower back. Eventually I typed in the barcode number. My back remained painful but I finished the shift. I attended a Mother’s Day dinner with my mother and she gave me some Panadeine Forte tablets. I tried a heat pack and Deep Heat. Despite the treatment I slept very poorly because of ongoing back pain. I attempted to work the next day but the pain was too much for me and I reported my injury and stopped work after about 1 hour.”[8]
[8]PCB 3
20 At the commencement of this proceeding, Mr McKenzie, on behalf of the defendant, accepted the occurrence of the injury to the plaintiff. The outline of the plaintiff’s injury is confirmed in the employee’s Claim Forms.
Medical treatment
21 On the day after the injury, 12 May 2014, the plaintiff attended upon Dr Wong, general practitioner, and was certified unfit for work for one week. The plaintiff was prescribed Panadeine Forte and Brufen to deal with her pain symptoms.[9] On 30 May 2014, the plaintiff was referred for MRI examination.[10]
[9]PCB 3
[10]PCB 3
22 The MRI examination reported as follows:
“At L4/5, there is posterior annular tear and small shallow central disc protrusion, just contacting the thecal sac. No compromise of the descending or exiting nerves.
At L5/S1, there is a small focal central disc protrusion, without central canal or foraminal compromise.
…
Conclusion: Mild disc changes as described at L4/5 and L5/S1. No large or significant disc protrusion.”[11]
[11]PCB 110
23 The plaintiff was then certified as fit for modified duties up to 11 June 2014. The plaintiff was prescribed Panadol Osteo and Tramal, and was provided with a back support for her duties.[12]
[12]PCB 4
24 On 27 June 2014, the plaintiff attended Dr Barry Oakes. On that occasion, the plaintiff was certified as unfit for all duties for a period of one month. The plaintiff was placed in traction and was prescribed Mersyndol and Panadeine Forte.[13]
[13]PCB 4
25 The plaintiff’s condition improved, and by 18 August 2014, the plaintiff had returned to work for four hours a day for five days in a week. On 21 August 2014, the plaintiff attended Dr Wales, who certified the plaintiff as unfit for the twenty hours per week and the plaintiff was referred to Mr Russ, orthopaedic surgeon.
26 On 24 September 2014, the plaintiff attended upon Mr Russ, orthopaedic surgeon.[14] On that occasion, Mr Russ noted the previous MRI examination conducted in May 2014, and recommended a repeat MRI scan and a CT-guided facet joint injection to the L5-S1 facet joint.[15]
[14]PCB 5
[15]PCB 33
27 On 4 October 2014, the plaintiff underwent an MRI scan of her lumbosacral spine. The history given at that time was that there were bulges at the L4-5 and L5-S1 level. The findings of the MRI scan conducted on 4 October 2014 were as follows:
“Conclusion: No interval change. Stable mild broad-based posterior central disc bulging at L4/5 and L5/S1 without evidence of compressive radiculopathy or central spinal canal stenosis. Stable small posterior annular tear, L4/5 disc.
No new/additional abnormality is identifiable and there is no evidence of compressive radiculopathy or central spinal canal compromise.”[16]
[16]PCB 111
28 On 13 April 2015, the plaintiff was referred to Mr Greg Etherington, orthopaedic surgeon.[17] Mr Etherington ordered a CT scan to be conducted of the plaintiff’s lumbar spine.
[17]PCB 5
29 On 16 April 2014, a CT scan of the plaintiff’s lumbar spine was conducted. On that occasion, the following findings were made:
“The L1/2 to L4/5 levels are normal. The central canal, lateral recesses and neural exit foramina are patent.
At L5/S1, there is a central and right paracentral disc protrusion compressing the budding right S1 nerve root. There is no compression of the exiting L5 nerve roots.
Comment:
Right S1 compression in the subarticular recess due to disc. There is no further neural compression or central canal narrowing.”[18]
[18]PCB 112
30 On 17 April 2015, the plaintiff underwent a CT-guided injection to her lower back. The injection was applied to the paraspinal tissues overlying the right L5 nerve root.[19]
[19]PCB 113
31 In June 2015, the plaintiff changed her general practitioner to Dr Merran Gowans. Dr Gowans has continued to be the plaintiff’s general practitioner to the present time.[20] On 16 June 2015, the plaintiff underwent a further CT-guided injection to the right L5 nerve root.[21]
[20]PCB 6
[21]PCB 6 and 114
32 On 6 August 2015, the plaintiff underwent an MRI examination on behalf of Mr Greg Etherington, orthopaedic surgeon. On that occasion, the findings of the MRI scan were as follows:
“At L5/S1, a disc bulge contacts the traversing S1 nerve root in the right lateral recess (series 8 image 18, series 2 image 7) without evidence of significant displacement of the nerve root. The neural exit foramina are adequate in dimension.
…
Impression:
Mild disc bulge at L5/S1. The bulge contacts the traversing S1 nerve root in the right lateral recess without evidence of significant displacement of the nerve root.
No evidence of impingement upon exiting L5 nerve root. No mass lesions identified adjacent to right L5 nerve root within pelvis. No abnormality is demonstrated within the sacroiliac joints.”[22]
[22]PCB 115-116
33 On 19 February 2016, the plaintiff attended upon Dr Raghav. Dr Raghav recommended an intense pain management program.[23]
[23]PCB 7 and 51
34 On 12 September 2016, the plaintiff attended upon Dr Bala.[24] At that time, the plaintiff was attending her place of work four days a week, five hours per day. At the time of this return-to-work program, the plaintiff was taking six to eight Mersyndol tablets. The medication was changed to Panadol Osteo in combination with Mobic.[25]
[24]PCB 7
[25]PCB 53
35 On 18 October 2016, the plaintiff was sent to be reviewed by Dr Forbes on behalf of her employer, Costco. At that stage, the plaintiff was working four days a week, six hours per day. The plaintiff was taking Mersyndol, Panadol Osteo and Mobic to ameliorate her pain symptoms.[26] Dr Forbes formed the opinion that the plaintiff was unable to perform her nominated tasks of a cashier at Costco.[27]
[26]PCB 7
[27]PCB 81
36 On 22 November 2016, as a result of receipt of the opinion of Dr Forbes, the plaintiff’s employment with Costco was terminated.[28]
[28]PCB 7 at paragraph [24] and PCB 125
37 The plaintiff attended at the Victorian Rehabilitation Centre for an intensive pain management course between 27 February 2017 and 10 April 2017.[29]
[29]PCB 8
38 The plaintiff’s current treatment regime is regular attendance upon physiotherapy for massage and supervision of an exercise regime. The plaintiff also takes prescribed medications of six to eight Mersyndol tablets per day, Endone and Lyrica. The plaintiff’s evidence in relation to Endone and Lyrica is that she did not like taking these medications, and took them as infrequently as she could possibly manage. The plaintiff also takes Nexium and Maxolon to deal with the side effects of both Endone and Lyrica.
39 The plaintiff’s most recent radiological examinations took place on 9 February 2018. The MRI examination scan of the plaintiff was reported as follows:
“At L5/S1, there is a posterior disc bulge with a right paracentral annular fissure that does not result in significant spinal canal, subarticular recess or neural exit foramen stenosis.
…
Conclusion:
Posterior disc bulges at L4/5 with annular fissures but no evidence of neural compression.”[30]
[30]PCB 118
40 The CT scan of the lumbar spine of the plaintiff was reported as follows:
“L5/S1: Asymmetric disc bulging, more prominent to the right with moderate facet and flavum hypertrophy. Contact and deformation of the transiting right S1 nerve root in its lateral recess without true impingement.
Moderate degenerative change of the sacroiliac joints.
Conclusion:
Contact and deformation of the transiting right S1 nerve root in its lateral recess due to a disc protrusion/asymmetric bulge.”[31]
[31]PCB 120
The Loss of Earning Capacity
41 The evidence in this case establishes that the plaintiff’s sleep patterns have been interfered with as a result of the pain to her lower back.[32] The plaintiff is also taking significant pain-relieving medications which interfere with her ability to concentrate and consequently perform work at an optimal level. I accept that the plaintiff experiences pain of a very considerable level, which interferes with her ability to engage in employment. All of the medical practitioners have outlined a number of restrictions on her employment capabilities. In those circumstances, it is appropriate to deal with the plaintiff’s loss of earning capacity as a starting point in this application.
[32]PCB 8 and 66
42 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
43 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(a) “without injury” earnings; and
(b) “after injury” earnings.
44 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a 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.
45 In this case, both the plaintiff and the defendant agree that the 60 per cent of “without injury” earnings figure would be $34,166 gross annually, or in the alternative, $657 gross per week.
46 The uncontradicted evidence in this case is that the plaintiff has not worked or received income as a result of her personal exertion since the termination of her employment by Costco on 22 November 2016.
47 The onus is upon the plaintiff to establish, on the balance of probabilities, that as a result of the injury to her lower back, she has a loss of earning capacity greater than 40 per cent of her “without injury” earnings. On the agreed figures between the defendant and the plaintiff, the plaintiff must establish that she is unable to earn more than $657 gross per week before she satisfies the statutory test for loss of earning capacity.
Medical Opinions
Dr Matthias Russ, Orthopaedic Surgeon
48 Dr Russ prepared a report dated 24 September 2014. On that date, he examined the plaintiff and found that there was pain localised in the region of the L5-S1 facet on the right side. Dr Russ noted that the MRI scan performed on the plaintiff’s lower back on May 2014 demonstrated mild disc bulges at L4‑5 and L5-S1, with no nerve root compression nor displacement. Given the change in her pain symptoms, Dr Russ recommended repeat MRI scan and a CT-guided facet joint injection to take place.[33] Dr Russ noted slight improvement after the injection and recommended the plaintiff could commence a return to work on the basis of two days a week, two hours per day. He noted the plaintiff was keen to go back to full-time work.
[33]PCB 33
Mr Greg Etherington, Spinal Surgeon
49 Mr Etherington prepared a total of ten separate reports in relation to this case. Mr Etherington’s initial opinion was that the plaintiff was suffering an aggravation of degenerative lumbar changes, predominantly at L4-5 and L5‑S1. These changes were causing axial lumbar pain and right leg pain (radiculopathy).[34]
[34]PCB 38
50 In his final report dated 28 February 2018, Mr Etherington noted that the plaintiff’s current lumbar pain is more pronounced than any of her leg symptoms. He noted that the plaintiff had to make modifications to her activities of daily living in order to manage the pain better. Mr Etherington accepted that the plaintiff’s pain was present most of the time. In his opinion, the plaintiff was unable to return to her normal duties at Costco.
51 In respect of her prognosis, Mr Etherington stated that the symptoms had been ongoing for almost four years. He stated that there was unlikely to be a major cure that would result in the spontaneous resolution of the plaintiff’s condition.[35] Mr Etherington has not ruled out the possibility of surgery, especially at the L5‑S1 segment.[36]
[35]PCB 49
[36]PCB 50
Mr Roy Carey, Orthopaedic Surgeon
52 The plaintiff was examined by Mr Carey at the behest of the defendant’s insurer. The assessment was in the form of an impairment assessment. Mr Carey noted, in his examination section of his report:
“… There was some tenderness over the right lumbosacral region, into the buttock and down the back of the leg to the knee. … .
There were no non-organic signs of abnormal illness behaviour.”[37]
[37]PCB 86
53 Mr Carey’s opinion was as follows:
“My opinion is that Ms Atherton sustained an acute episode of back and right leg pain as a result of the injury described at work 11.5.2014.
She now has back and right leg pain but in the absence of radiculopathy.”[38]
[38]PCB 87
54 Mr Carey diagnosed the plaintiff as suffering from chronic back and right lower limb symptoms in the absence of radiculopathy due to lower lumbar disc injury as described above. Mr Carey also noted that the presentation is consistent with the workplace injury as described, and the subsequent treatment, although she now has non-organic altered sensation in the right lower limb.[39] In his report dated 13 December 2016, Mr Carey stated there were no non-organic signs of abnormal illness behaviour.[40]
[39]PCB 87
[40]PCB 86
Mr Gary Grossbard, Orthopaedic Surgeon
55 Mr Grossbard prepared a report dated 14 February 2018. Mr Grossbard notes his opinion as follows:
“This lady has had an injury to her lumbar spine in the presence of disc pathology at the lumbosacral level. The relationship between the onset of the pathological changes and the onset of her symptoms is difficult to determine, but there is clearly a relationship between the incident of 11th May 2014 and the current clinical situation.
Unfortunately this lady, who was working although with some discomfort on what was approximately a half-time basis, has not lost her employment. The likelihood of her finding a suitable job is significantly diminished because of her incapacity with respect to bending and lifting. She is not going to be able to remain in one position for long periods of time or undertake work where long periods of driving are required.
…
This lady’s injury is unlikely to change significantly in the foreseeable future, and I would consider the situation to be stable. There is no evidence of radiculopathy and much of the pain is discogenic in origin, with associated facet joint arthropathy. This diagnosis is based on the clinical findings of an inability to extend the spine and the lower back pain being unilateral.”[41]
[41]PCB 63
Mr Peter Scott, Senior Consultant Surgeon
56 Mr Scott examined the plaintiff on behalf of the defendant. He prepared a report dated 12 April 2018. Mr Scott gave his opinion as follows:
“I believe, there was evidence of minor discogenic disease in the lumbosacral spine and certainly evidence of right subtrochanteric bursitis but symptoms appear to have been magnified with the development of what could best be described as a chronic pain syndrome with what I suspect is anxiety and frustration, the latter requiring interpretation by a consultant psychiatrist.”[42]
[42]DCB 30
57 Mr Scott went on to state as follows:
“I accept the incident which occurred on 11.05.2014 allowed for the development of aggravation of pre-existing, presumed asymptomatic, discogenic disease of the lumbosacral spine with intermittent lumbosacral nerve root irritation which has not be[en] verifiable on examination.
In addition, at some stage if she developed an abnormal gait then this may account for the development of clinically detected right trochanteric bursitis.”[43]
[43]DCB 31
58 Mr Scott’s opinion was that the plaintiff’s injury was as a result of the work-related aggravation of a previous existing asymptomatic disease process and it continues to the present time.[44]
[44]DCB 31
59 In relation to the plaintiff’s work capacity, Mr Scott was briefed with the Recovre report. The Recovre report nominated that the plaintiff was capable of performing the task of a welfare support worker, a receptionist, customer service duties, a cashier in a large retail outlet, and a production clerk.
60 Mr Scott’s opinion was that the plaintiff would be able to partake of some very light work in a part-time capacity. He described the restrictions on the plaintiff’s ability to work as no prolonged standing, prolonged sitting, repetitive bending or lifting more than 5 kilograms in weight. In his opinion, he doubted whether the plaintiff could ever work full time with her current symptomology. In his opinion, of all the options for work that were offered to the plaintiff, she was capable of performing the welfare support officer role for one to two days per week in the first instance.[45] It was clear from the tenor of his report that Mr Scott thought the plaintiff was only capable of doing very light employment, and on a part-time basis. In conclusion, Mr Scott’s assessment of the plaintiff was as follows:
“Ms Atherton appears to be genuine and well-motivated but suffering considerable anxiety and frustration because of a lack of improvement with some four years of pain management.”[46]
[45]DCB 32
[46]DCB 33
Dr Merran Gowans, General Practitioner
61 Dr Merran Gowans prepared a report dated 14 March 2018 in respect of this application. Dr Gowans set out how the plaintiff’s condition is unchanged and that she still suffers from right-sided lower back and buttock pain and right leg pain. Dr Gowans confirmed that the plaintiff’s medication regime was Mersyndol daily; Lyrica, 150 milligrams per day; Endone, 5 milligrams for breakthrough pain, Nexium, 40 milligrams; Mobic, 7.5 milligrams and Maxolon for nausea. Dr Gowans noted that the strong painkillers the plaintiff was taking affected her memory and concentration.[47]
[47]PCB 20
Mr Ron Munro, Physiotherapist
62 Mr Munro has been treating the plaintiff as a physiotherapist on a regular basis. Mr Munro proffered the following opinion about the plaintiff’s ability to find employment:
“… the ability of Ms Atherton to find suitable employment will be difficult due to her ongoing limitations regarding lifting, repeated bending or twisting, and time spent standing still or sitting. Ms Atherton is aware that she is unlikely to ever be able to return to work similar to what she was performing at Costco when her injury occurred. Future employment will be very different to her past experience or skill base, but may include light clerical duties, customer service, and varied tasks which do not involve prolonged sitting or heavy lifting.”[48]
[48]PCB 31
Dr Vaidya Bala, Consultant Physician in Rehabilitative Medicine
63 The plaintiff attended upon the consultant physician in rehabilitation medicine, Dr Bala. Dr Bala prepared a report dated 27 April 2017 for the purposes of this application. The plaintiff was referred to Dr Bala by the orthopaedic surgeon, Mr Gregory Etherington.
64 After clinical examination, Dr Bala formed the opinion:
“… I formed the following opinion that Ms Nicole Atherton suffers from a chronic persistent lower back pain syndrome secondary to her musculoskeletal condition which primarily stemmed from her work related injury on 11th May, 2014.”[49]
[49]PCB 53
65 Dr Bala noted that the plaintiff had sustained acute sprain and strain injuries to her lower back on 11 May 2014.[50]
[50]PCB 54
66 Dr Bala’s opinion was that she had developed a Chronic Pain Disorder after the soft tissue injuries to her back.[51] As at February 2018, Dr Bala recommended a graded return to work of two to three hours per day for three days a week. He noted that the plaintiff had attended at a multidisciplinary pain management program from February 2017 to April 2017.[52]
[51]PCB 57
[52]PCB 57
67 It is to be noted that Dr Bala is the only doctor that referred to the plaintiff’s condition as a Chronic Pain Syndrome.
Mr Hugh Perera, Clinical Psychologist
68 In the course of the plaintiff’s treatment, the plaintiff had been referred by her general practitioner, Dr Gowans, to Mr Perera. Mr Perera diagnosed the plaintiff as having Reactive Depression as a result of the physical injury to her back.[53] He noted, in the course of his report, that the plaintiff would be able to do child-protection-work-type employment, as it would not require the physical activity beyond what the plaintiff could manage, given her known physical incapacity.[54]
[53]PCB 59
[54]PCB 59C
Dr Amanda Sillcock, Occupational Physician
69 The plaintiff was assessed by Dr Amanda Sillcock on 15 March 2018 for the purposes of this application. Dr Sillcock noted a history of interrupted sleep as a result of the back pain to the plaintiff.
70 In her report, Dr Sillcock referred to the MRI scan of 2016 and 2018. She noted the reports as follows:
“There was mild central canal narrowing at L5-S1 due to an annular tear in the disc. There was no neural compression.
…
This showed a posterior disc bulge with a right paracentral annular fissure and [scil at] L5-S1 but no sub articular recess or neural exist foramen stenosis.”[55]
[55]PCB 68
71 Dr Sillcock’s diagnosis was:
“I believe that Ms Atherton is suffering from mechanical low back pain with mild right S1 nerve root irritation. I believe that she also has dysfunction of her right hip but this has not been investigated.”[56]
[56]PCB 69
72 Dr Sillcock’s opinion in relation to the permanency of the plaintiff’s condition and the plaintiff’s ability to return to work, was stated as follows:
“I recommend that Ms Atherton avoids heavy lifting and sustained or repetitive bending. I believe that these restrictions can be considered as permanent as they have now been present for a long time. I also recommend that she does not work for more than 20 hours per week.”[57]
[57]PCB 70
73 Dr Sillcock noted the reports of Dr Joseph Slesenger and Dr David Barton, both experienced occupational physicians. Dr Sillcock noted that the plaintiff had only worked modified duties as a cashier and had not worked her normal hours, and any work she did perform was done with the assistance of a fellow worker.[58]
[58]PCB 70
74 I note, on the basis of Dr Sillcock’s report, that she was of the opinion the plaintiff was, at best, only able to perform twenty hours of work per week, and that such a restriction was permanent. The restrictions of no heavy duties, and the like, described by all the doctors, were adopted by Dr Sillcock.
Dr Angus Forbes, Occupational Physician
75 Dr Angus Forbes prepared a report dated 1 November 2016. Dr Forbes is an occupational physician. Dr Forbes examined the plaintiff for the employer, Costco. This examination was performed by Dr Forbes prior to the termination of the plaintiff’s employment by Costco. His opinion was:
“There is a foreseeable and significant risk of further injury if Ms Atherton is to fulfil the essential and inherent requirements or her role as laid out in the position description. She does not believe that she is capable of performing the role.”[59]
[59]PCB 80
76 It was clear from Dr Forbes’ opinion in 2016 that the plaintiff was incapable of performing the cashier task which has been referred to in the Recovre report.
The Medical Panel
77 The plaintiff was referred to a Medical Panel, which performed an examination of her on 8 July 2015. The Medical Panel was made up of Dr David Murphy, consultant physician, and Mr Robert Carey, orthopaedic surgeon. In the Medical Panel Reasons for Opinion, they stated that the plaintiff did not exhibit any abnormal illness behaviour during the course of the interview and the examination.[60] The Medical Panel determined that the plaintiff had suffered a soft tissue injury of the lumbar spine with referred right leg pain.[61] The Medical Panel then made comment of the reporting by Dr David Barton. The Medical Panel’s opinion was that they disagreed with Dr Barton’s stated opinion that there was no ongoing physical problem for the plaintiff to perform her normal work. The Panel went on to state as follows:
“… The Panel considered that the worker has intolerances for repetitive lifting, bending or twisting and for lifting of items of more than 5 kg and that these limited tolerances preclude the worker from being able to return to her preinjury employment. The Panel disagreed with Dr Barton and preferred its opinion that the worker has an incapacity for her preinjury employment as a result of a soft tissue injury of the lumbar spine with referred right leg pain relevant to the claimed injury of 11 May 2014.”[62]
[60]PCB 107
[61]PCB 108
[62]PCB 109
Mary Oliver, Human Resources Consultant, Flexi Personnel
78 Ms Oliver prepared a report dated 6 April 2016. Ms Oliver noted the history from the plaintiff about her pain across her lower back and into her buttock. The plaintiff also gave a full history of the medications taken by her to deal with the pain.[63] Ms Oliver took note of the medical opinions, and the plaintiff’s work history and qualifications. In Ms Oliver’s opinion, the plaintiff was unsuitable for any of the tasks as a receptionist, cashier worker, production clerk or welfare support worker.
[63]PCB 90
79 I do not accept Ms Oliver’s opinion that the plaintiff has suffered the complete obliteration of her ability to perform some employment.
80 Ms Oliver prepared a later report dated 13 April 2018, which sets out the pay rates for various roles. Of particular note is the pay rate for a family welfare worker at Pay Point 2 of $21.96 gross per hour.[64]
[64]PCB 103A
Dr David Barton, Consultant Occupational Physician
81 Mr Barton prepared five reports in relation to this matter, dated 21 July 2014, 16 January 2015, 6 February 2015, 19 February 2018 and 20 March 2018.
82 In his first report, Dr Barton states that the plaintiff may have suffered a mild soft tissue injury to her lower back, but her condition has been complicated by poor medical advice.[65]
[65]DCB 6.4
83 In his report dated 16 January 2015, Dr Barton notes, on examination, that the plaintiff’s back showed some mild tenderness in the lower right lumbar area extending towards the right buttock.[66] He noted that the scans suggested a mild injury to the plaintiff’s lower back.[67] Dr Barton then noted that the plaintiff presented with a number of features that point towards a degree of illness behaviour.[68] Dr Barton’s diagnosis as at January 2015, was that the plaintiff had suffered a mild soft tissue back injury, complicated by a degree of illness behaviour.[69]
[66]DCB 6.8
[67]DCB 6.9
[68]DCB 6.9
[69]DCB 6.9
84 In his report dated 6 February 2015, Dr Barton stated that the plaintiff was fit to return to work on her normal duties at Costco.[70] It is clear, based on all the evidence in this case, that that opinion is patently wrong. All the treating doctors, as at that time, were of the view that the plaintiff had restrictions in relation to lifting, bending and twisting and was unable to return to her normal duties.
[70]DCB 6.12
85 The report prepared by Dr Barton, dated 9 February 2018, appears to be more directed to answering the criticism laid out by the Medical Panel previously referred to in these Reasons. I note, in the preparation of this report, that he had not seen the plaintiff prior to giving his opinion on 19 February 2018. In that report, Dr Barton stated that the plaintiff had the capacity to perform all of the tasks set out in the Recovre report on a full-time basis.
86 In his report dated 20 March 2018, Dr Barton had examined the plaintiff. He noted that the plaintiff attended the consultation with an attached x-ray report.[71] Later in his report, referring to CT scans and MRI scans, Dr Barton stated:
“Her investigations show some relatively minor changes fairly typical of people of her age group.”[72]
[71]DCB 11
[72]DCB 11
87 It is unclear from the body of Dr Barton’s report, exactly what MRI scans and CT scans he was referring to. In the Court Book, the MRI scans and CT scans dated 9 February 2018 were immediately behind Mr Barton’s report. It is unusual for a medical practitioner not to refer to the radiological reports by date and content.
88 Dr Barton’s opinion was that there was no clear physical basis for any of the plaintiff’s complaints.[73] He went on to state that the plaintiff’s symptoms were non-organic or psychologically based.[74]
[73]DCB 12
[74]DCB 13
Dr Joseph Slesenger, Occupational Physician
89 Dr Slesenger prepared four reports dated 24 December 2015, 11 May 2016 and 22 February 2018. In his first report, Dr Slesenger gave his opinion as follows:
“Ms Atherton presents 18 months after a soft-tissue injury to the lumbosacral spine. She presents with chronic low back pain. Clinical evaluation identified an improved range of movements upon distraction and non-organic features to her lower limb neurological examination. I am of the opinion that she has no physical basis for her current impairment and disability.”[75]
[75]DCB 16.7
90 In his second report dated 24 September 2015, Dr Slesenger sets out the return-to-work program for the plaintiff. He prescribes alternative duties to be performed up to full-time hours.[76]
[76]DCB 16.23
91 By his report dated 11 May 2016, Dr Slesenger gave the opinion that there was no physical basis for the plaintiff’s current impairment and disability.[77] This opinion was given in relation to the assessment of the plaintiff as at 22 December 2015.
[77]DCB 19
92 In his final report dated 22 February 2018, Dr Slesenger stated that the plaintiff was able to perform all of the tasks set out in the Recovre report. He noted that he was satisfied that, based on his assessment of the plaintiff conducted in 2015, she was able to perform those roles. The roles in question were welfare support worker, production clerk, cashier and receptionist.[78] Dr Slesenger’s opinion was that the plaintiff could work four-and-a-half days to five days a week.
[78]DCB 23
93 The gap in time between the last assessment of the plaintiff by Dr Slesenger in December 2015 and the current time, and in particular his last report dated February 2018, leaves the Court in a position where that opinion is not fully based on the evidence applicable at this time. I, therefore, disregard Dr Slesenger’s opinion in relation to the plaintiff’s current work capacity.
The Recovre Report
94 The defendant relied upon a Recovre report dated 30 August 2017. In that report there were four job descriptions identified that the plaintiff could perform on a full-time basis.[79] The jobs that are identified are welfare support work, production clerk, cashier, receptionist and customer service officer. In relation to the customer service officer, that task is exactly the same employment that the plaintiff was performing at Costco. At the time that the plaintiff’s employment was terminated, it was found that the plaintiff was unable to perform those duties. I find that the position has not improved for the plaintiff.
[79]DCB 43
95 Of the tasks that were identified by the Recovre report, the most likely and realistic opportunity for employment for the plaintiff is the welfare support worker role. The plaintiff is currently undertaking the appropriate study and training in order to perform that work. In her evidence, she clearly expressed a desire to work in child protection support services or, alternatively, as a drug and alcohol support worker. I accept the plaintiff has a clear and determined approach to try and re-engage in the workforce in these capacities.
Analysis
96 I accept that the plaintiff has a substantial organic basis for the pain and disability in her back. I base this finding on the agreed opinions of all the orthopaedic surgeons who have examined the plaintiff and have viewed the radiological examinations of her. The opinions of Mr Russ, Mr Etherington, Mr Roy, Mr Carey, Mr Grossbard, Mr Peter Scott and Mr Robert Carey (Medical Panel) all set out the organic basis for the plaintiff’s complaints and disability.
97 Dr Bala is the only medical examiner that diagnoses the plaintiff as suffering from Chronic Pain Disorder which is a psychological condition in its own right. I am not satisfied the plaintiff has a Chronic Pain Disorder on the basis of one medical opinion when the preponderance of the other medical examiners state the plaintiff’s injuries are organic in origin.
98 Dr Barton is the only doctor who states the plaintiff can do her pre-injury duties full time. He says the plaintiff has signs of abnormal illness behaviour. Dr Slesenger’s opinion, based on his last examination in December 2015, says the plaintiff could work four-and-a-half to five days per week. Both Dr Barton and Dr Slesenger are occupational physicians. Dr Sillcock is also an occupational physician and whilst she acknowledges the opinions of Dr Barton and Dr Slesenger, she states the plaintiff has restrictions on her capacity for employment. Dr Sillcock limits the plaintiff’s capacity to twenty hours per week.
99 In essence, Dr Sillcock, occupational physician, agrees with the opinions of the orthopaedic surgeons that the plaintiff has a limited capacity in suitable employment.
100 On a final analysis of all the medical opinions in this case, and an assessment of the plaintiff as a person, and an accurate historian of her conditions and symptoms, I accept that the plaintiff can work on a part-time basis as a welfare support worker for no longer than twenty hours per week. The plaintiff enthusiastically suggested that she could do three days a week on the basis that it would be three days of eight hours per week work. The plaintiff gave evidence that if she worked three days a week, she would have a day in between each day of employment. That would necessarily mean that the plaintiff thought she was capable of doing twenty-four hours of work per week.
101 Given the history of the plaintiff’s complaints and symptoms and her inability to perform work despite the fact that she was keen to do so, is a clear indicator to me that Dr Sillcock has more properly assessed the plaintiff’s full ongoing capacity into the foreseeable future as twenty hours per week work.
102 Given the finding of twenty hours per week as the maximum period of time the plaintiff is likely to work in the future as a welfare officer, the gross income per week would be $440. Even if the plaintiff was accepted at her most optimistic estimate of being able to perform twenty-four hours per week of work, her gross income as a welfare support officer would be $528 per week. Either of these scenarios fall well short of the 60 per cent weekly gross earnings of $657.
103 I find that the plaintiff has proved, on the balance of probabilities, that she has a loss of earning capacity which is greater than 40 per cent of her “without injury” earnings. I find that her reduced earning capacity is permanent, in the sense it is for the foreseeable future.
104 I grant the plaintiff leave to bring proceedings for pain and suffering and loss of earning capacity as a result of her injury to her lower back, which occurred in the course of her employment on 11 May 2014.
105 I will hear the parties on costs.
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