Baker v Victorian WorkCover Authority
[2022] VCC 1227
•8 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02567
| MICHELLE BAKER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 & 28 July 2022 | |
DATE OF JUDGMENT: | 8 August 2022 | |
CASE MAY BE CITED AS: | Baker v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1227 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury; claim for pain and suffering under paragraph (a) and pecuniary loss damages; diagnosis of complex regional pain syndrome as a result of injury to right lower leg; plaintiff’s capacity to work.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Plaintiff has leave to bring a damages claim with respect to pain and suffering and loss of earning capacity as a consequence of her injuries. Costs reserved
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms S Bailey | Zaparas Lawyers |
| For the Defendant | Ms K Manning | IDP Lawyers |
HIS HONOUR:
Background
1Ms Baker was born in 1975 (Plaintiff’s Court Book (“PCB”) 63) and completed Year 12 (VCE). She lives in a de facto relationship and has two children. (PCB 15, paragraphs 4 and 5)
2In 1994, she completed a traineeship in viticulture provided by the University of Melbourne by working at Douneside Estate in Coldstream, where she continued to work for eight years. She then worked for a company known as Wallace Contracting, which was also a vineyard operator, for a further eight years. (Ibid, paragraphs 6 and 7) She completed study for a Certificate IV in Bookkeeping on 11 October 2015, and the following month completed a Certificate IV in Accounting. In May 2012, she had commenced work for Warramunda Estate Pty Ltd (“Warramunda”), another vineyard in the Coldstream area. She said “in or about 2015 my employer discussed a new role for a potential new vineyard/expansion, as a result of this discussion I undertook, and on 23 September 2016, completed a Diploma in Accounting which would assist in that new role, additionally I had planned to return to fulltime work as my children became self-reliant.” (PCB 15-16, paragraph 9)
3On 17 March 2017, she says she “sustained a crush injury to [her] right foot during the course of [her] employment at Warramunda Estate Pty Ltd.” (PCB 16, paragraph 12) On that day, she was asked to drive a tractor, hauling a trailer loaded with three bins of grapes, each of which contained approximately 450 kilograms of grapes. (Ibid, paragraph 14) According to her affidavit sworn 20 May 2022:
“The ignition was on. As I lifted the three-point linkage lever the bins began to slide off the trailer too fast. I raced over to slow them down, so they didn’t tip and spill. I grabbed the tops of the bins, as a result of the bins moving it caused the trailer to lift up and push forward and the trailer wheel rode up onto my right foot. I was able to free myself as my foot was pinned under the wheel.” (PCB 16-17, paragraph 15)
4She summoned help from a neighbour using a mobile phone. Meanwhile, her foot was wedged under the trailer wheel. She said the “… total would have exceeded 2 tonnes.” (PCB 17, paragraphs 16‑17) An ambulance conveyed her to Maroondah Hospital where her foot was x‑rayed and she was discharged. Her general practitioner, Dr Rebecca Lowe of Monbulk Family Clinic, referred her for an MRI examination of her foot in light of ongoing pain. She said, “the MRI demonstrated marked soft tissue swelling and bruising over the dorsal aspect of the foot.” (PCB 17, paragraph 21) Dr Lowe referred Ms Baker for treatment and opinion to orthopaedic surgeon, Dr Andrew Beischer. (Ibid) She said that Dr Beischer “suspected an incomplete tear of the Lisfranc ligament and noted that [she] was developing CRPS [viz complex regional pain syndrome]. He recommended aggressive physiotherapy and to protect foot in Cam Boot.” (PCB 18, paragraph 22) She said following further imaging, including a CT scan, Dr Beischer “confirmed early CRPS. He recommended weightbearing in CAM boot and transition in 3 weeks to supportive shoe and insole.” (Ibid, paragraph 23) Ms Baker said that she continued to experience “nerve pain” and Dr Beischer prescribed Lyrica and recommended the insertion of a carbon plate to stiffen the sole of her shoe. He advised against surgery. Dr Beischer referred her to physiotherapist, Mr James McGregor, in June 2017 who “opined [that she] was suffering from chronic regional pain syndrome.” (Ibid, paragraph 25) He recommended strengthening exercises and hydrotherapy. On 22 June, she received a diagnosis of complex regional pain syndrome from Dr G Doig, with a further such diagnosis being given by Dr R Dupuche, who also diagnosed “neuropathic pain”. Dr Lee, a specialist in rehabilitation and pain medicine, prescribed Prednisolone, Vitamin C and Nortriptyline. Ms Baker said she was taking Panadeine Forte, Targin, and Panadol for pain relief at this time. (PCB 18, paragraphs 26‑28)
5On 15 February 2019, Dr Dupuche advised Ms Baker that she could not return to pre-injury duties. A few days later, Dr Lee recommended a ketamine infusion and discussed the possibility of spinal cord stimulation. (PCB 19, paragraphs 29-30)
6Ms Baker undertook a pain management program on 22 October 2018, but was discharged early “due to lack of improvement, difficulty, flare ups, and significant detrimental changes to physical and functional capacity.” (Ibid, paragraph 31) Dr Lee had prescribed Neurontin for her in March 2019. As at September 2019, she was taking Endone, Targin, Panadeine Forte, Panadol and Temazepam. She said at other times during her treatment she had been prescribed Endep, Tramadol, Lyrica, Topamax, Gabapentin, Nortriptyline, all of which were discontinued “due to significant side effects.” She did not want to undergo a ketamine infusion “due to the risks.” (Ibid, paragraphs 32-35)
7As at the date of her first affidavit in September 2019, she said that she continued to experience pain in her foot “which radiates up my leg” on a daily basis, which would range on a pain scale from 3/10 to 9/10. (PCB 20, paragraph 36) She said her sleep is disturbed and she often awoke at night. She said she also suffered symptoms in her left knee “as a result of my altered gait.” She said she is often “depressed, annoyed and angry as a result of pain and [her] physical limitations.” In the early period after her injury, she used crutches which caused symptoms to develop in her left shoulder, which was operated on and it made a good recovery. (Ibid, paragraphs 37-40)
8Ms Baker said that she “was a keen and active basketballer all [her] life but as a consequence of the accident, have had to abandon that sport.” As at September 2019, she was persisting in her role as a junior basketball coach, but she was “very restricted in [her] ability to teach and show the players various plays.” (Ibid, paragraphs 42-43)
9Ms Baker said she was unable to continue the long distance walks with her dogs, which she used to enjoy. Her walks are now much shorter, if taken at all, and her ability to socialise was constrained “due to an inability to stand for extended periods.” She said her medication left her “sleepy and groggy and often … unable to focus.” (PCB 21, paragraphs 44-46) She said that she was passionate about her job at Warramunda and missed the vineyard culture. Nevertheless, two attempts at a return to work were unavailing due to “complete lack of support from my employer.” (Ibid, paragraphs 48-49)
10Ms Baker said she “self-funded several photography courses in the hope of establishing a more sedentary career. These courses included Cert IV in photography and imagining. [She] also completed a Certificate in Social Media and Marketing Intensive.” (Ibid, paragraph 51) She complained that her inability to join in play with her children “including basketball, cycling, kicking a football etc and [was] restricted with bush walking.” (PCB 21-22, paragraph 52) She said she has had to abandon former interests in “car racing, various water sports (water skiing, tubing, knee boarding, fly boarding), ten pin bowling etc.” (PCB 22, paragraph 53) She said she has significant restrictions, limitations and inconvenience in everyday activities such as housekeeping, house maintenance and gardening, and her driving trips “must be frequently interrupted and sometimes cancelled.” (PCB 22, paragraphs 53-55)
11In a second affidavit made 20 May 2022, Ms Baker said that in the intervening period, her “condition has remained much the same”, and she continued to experience the same symptoms. In October 2021, she had an injection in her right foot but “it did not help, and after the injection [her] foot became very swollen and more painful.” Surgery on her left knee in November 2020 was successful. (PCB 23, paragraphs 1‑2)
12Ms Baker said that her left shoulder had improved and she now has “very little trouble with it.” She continued with the same medication regime, save that Stilnox had been substituted for Temazepam. She said she had not had the ketamine infusion, but tries to use heat packs and cold packs “and use elevation and rest to manage the foot pain.” (PCB 24, paragraphs 4‑5) By 2022, she had abandoned basketball coaching. She “did not see the point of just coaching from the bench.”
13Ms Baker disclosed a previous WorkCover claim in 1997 for carpal tunnel syndrome, which had been successfully treated, and a further claim in September 2016 for “an upper thoracic injury radiating into [her] right shoulder when digging out drains at the vineyard.” She made a recovery from that injury. (Ibid, paragraph 8)
14Ms Baker described her attempt to return to work on reduced hours in July 2017, building up to 20 hours a week on light duties, with which she said she “could not cope.” She continued to encounter difficulties even after scaling back to 12 hours a week “until October 2017, when there was no further work available.” The problem for her was “the time spent on [her] feet and walking on uneven terrain.” (Ibid, paragraph 9)
15Ms Baker said that in “FY 17” (presumably the financial year ending 30 June 2017), she earned $65,851; in “FY 16”, $55,320; and in “FY 15”, $36,719. She said that suggestions that she might work “as a store manager, administration assistant, data entry operator, clerk or sales representative” were unrealistic because her work had been in vineyards for 23 years and she had no experience in any of these roles. She said, “my computer administrative skills are not the best, so I do not think I could work as an assistant … in data entry. My office computer skills are basic.” (PCB 25, paragraph 11) As to her qualifications in bookkeeping and accounting, she said: “it is very difficult for me to sit in one position for a prolonged period due to my pain, which increases the longer I stay in one position. I struggle to concentrate because of the medication that I am on, and my kids are always telling me that I do not remember what they supposedly told me. Bookkeeping requires precision and accuracy and I do not think I could guarantee either.” (PCB 25, paragraphs 11 and 12)
16Ms Baker described her photography business, which she commenced in April 2019, “thinking that I would be able to do a couple of hours a week to help bring in some money for bills.” She said it had not been very successful. She had undertaken four product shoots and about 15 to 16 “dog sessions.” For the dog sessions, she charged a session fee of $100 an hour which included two digital photographs, with the customer having the option of purchasing more. Product shoots entailed a charge of $1,600. She said she did her last “paid job, a dog shoot, in around March 2022.” (PCB 25, paragraph 13) She said that she had relied “on either of my daughters or my mum to come and help me carry my equipment and to help do shoots. When I do shoots at home, Colin [her partner] will move the products and the studio lights when needed.” (PCB 26)
17Ms Baker said her relative inactivity since the accident has led to a weight gain of 15 kilograms. (Ibid, paragraph 14)
18Ms Baker said she had undertaken international travel in November 2017 to Vietnam, and in October 2019, to China. In Vietnam, she said she had a private chauffeur and “had terrible trouble with [her] foot.” She said she was restricted and could not undertake hiking, sightseeing or travelling to the rice fields. She was restricted in what she could see in China where she was a member of a tour. Aspirations to visit relatives in England or her brother in the United States or wildlife safaris in Namibia were put aside because “the thought of travel is quite daunting because of [her] foot.” (PCB 26, paragraph 15) She said the pain in her foot has led her to some suicidal ideation, though she did not think that she could or would ever act upon such thoughts. (PCB 26, paragraph 16)
19Ms Baker made a final affidavit on 27 July 2022, the first day of the hearing of the application in this proceeding. She described her work at Warramunda as being manual, continuing: “the hours varied depending upon the season. In the busy season I would work over 30 hours and at times full-time. In the off season, there were less hours.” She said she wanted to work full-time and the vintners “had plans to expand.” She would have gone full-time as her “youngest child would have been 15.” (PCB 290-1, paragraphs 2 and 3) With her accounting and bookkeeping certificates, she “would have done vineyard work and also some management duties.” (PCB 291, paragraph 4) She said that she was never pain free, though the pain level varied, being excruciating at its worst. This might happen two or three times a week and these flare-ups “occur without any particular precipitating event.” In case of a flare-up, she needed “to either lie down or sit down and elevate her leg often for hours”, using cold packs or hot packs. (Ibid, paragraph 5) She said that pain medication is essential. She could not function without it but it “has side effects but I have no choice.” (Ibid, paragraph 6)
This proceeding
20By an originating motion filed 22 June 2021, Ms Baker sought “pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013”, a “Serious Injury Certificate for pain and suffering damages and pecuniary loss damages.” (PCB 7-10)
21At the hearing, Ms Baker was represented by Mr J Mighell QC and Ms S Bailey and the defendant was represented by Ms K Manning. Mr Mighell stated that his client relied for the serious injury determination which she sought on sub-paragraph (a) of the definition of “serious injury” to be found in the statute. She sought that finding or leave to bring a damages claim for both the pain and suffering consequences and the economic loss which she said flowed from her injury.
Legal considerations
22Section 327 of the Act authorises a “worker” to recover damages “in respect of any injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury”. Ms Baker’s case is that she has sustained a serious injury within the meaning of the Act.
23Section 325 of the Act defines the phrase “serious injury” as follow:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
24Ms Baker’s case is that she has suffered serious injury within the meaning of paragraph (a) of the definition.
25Sub-s(2) of s325 makes additional provision for the operation of this definition for the purposes of Part 7. The lengthy sub-section provides as follows:
“(2) For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)the following definitions apply—
"foetus" has the same meaning as in section 214(2);
"income from personal exertion" has the same meaning as in section 6(2) of the Transport Accident Act 1986; s. 325
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d)a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e)if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—
(i)has; or
(ii)after rehabilitation or retraining, would have–
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h)the 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;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j)the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;
(k)the monetary thresholds and statutory maximums specified by or under section 340 must be disregarded for the purposes of the assessment of serious injury.”
26It will be seen that by virtue of s325(2)(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”. The effect of the way in which Ms Baker’s application is brought is that it is the physical consequences of the alleged “serious injury” which must be taken into account for the purposes of judging whether it meets the definition of “serious”, to the exclusion of psychological or psychiatric consequences.
Expert opinions
27Orthopaedic surgeon, Dr Andrew Beischer, examined Ms Baker on referral from Ms Baker’s treating general practitioner at Monbulk Family Clinic, Dr Rebecca Lowe, providing a report by way of letter dated 18 April 2017. He noted a history of “a crush injury to [the right] foot that was run over by a one and a half tonne trailer.” Dr Beischer said “on clinical grounds one needs to be suspicious of a Lisfranc type of injury.” He found Ms Baker “had some tenderness across the lateral tarsometatarsal joints, but appeared to have a normal arch of her foot with standing.” He noted that an MRI scan “has not demonstrated any significant bony injury but the Lisfranc ligament did not appear normal on my viewing of these films and I would be suspicious that she may have a partial Lisfranc type injury.” He therefore ordered “weightbearing x‑rays of both feet to determine whether she has any subtle instability of the tarsometatarsal joints.” He said, “I suspect that she is starting to develop an early chronic regional pain syndrome and this is quite common for a significant crush injury.” He recommended “aggressive physiotherapy.” He suggested protection of the right foot with a CAM boot. (PCB 64) Dr Beischer sent a further report to Dr Lowe by letter dated 21 April 2017. He said, “further imaging … has failed to demonstrate any significant LISFRANC injury.” He continued, “I believe part of Michelle’s problem is that she does have some neuritic-type pain and early CRPS reporting alternate hot and cold feelings in the foot. She certainly had some tenderness to light percussion over the foot that would be consistent with a neuralgic type problem.” He suggested that Ms Baker start with a “CAM boot and then transition possibly in three weeks or so into a supportive shoe with an insole.” (PCB 65) Dr Beischer provided a report to Ms Baker’s solicitors in the form of a letter dated 15 June 2018. Dr Beischer reviewed the consultations and reports which he had previously provided to Dr Lowe as the treating general practitioner. He said “the patient has not been reviewed since her last appointment on 31 May 2017.” As to this final review, he said that Ms Baker “was reporting some neuritic discomfort, likely related to some compression of the deep peroneal nerve from her injury. It was suggested that she may use Lyrica if this continued to be a problem for her. She was to be fitted with a stiffened soled shoe and an arch support, but I advised that other than this I did not see a surgical intervention was required.” He suggested a “graduated return to work” and referred Ms Baker to physiotherapist, Mr James McGregor.
28In December 2017, Ms Baker was assessed for treatment by Dr Daniel Lee, consultant in rehabilitation and pain medicine, on referral from treating general practitioner, Dr Rebecca Lowe. Mr Lee reported to Dr Lowe by letter dated 13 December 2017, reciting the history of Ms Baker’s injury and that she was discharged from Maroondah Hospital after “a couple of hours” when no fractures were detected on x‑ray. He noted her use of a CAM boot for some six weeks. According to the doctor, “the pain is predominantly in the distal mid-foot. The location varies but only within that area. She said it is made worse randomly. She said some of the elevation, ice, and rest is helpful. She did note it gets blowing hot cold and there was some swelling. She described allodynia. There were no great sweating changes. There was no particular other trophic changes although range of motion of the ankle was reduced.” He said that “on a visual analogue pain scale, she rated 1‑7/10. I note the background pain tends to vary as well as the flares which is like a knife.” (PCB 35) Dr Lee said “she has probable complex regional pain syndrome.” He suggested the use of Prednisolone and vitamin C daily. The doctor suggested a ketamine infusion or spinal stimulation, but he thought it was too early to consider that “at this stage.” (PCB 36) Dr Lee provided a further report to Dr Lowe by letter dated 21 February 2018, following a review of Ms Baker at Melbourne Pain Group on that day. The doctor said, “Ms Baker has complex regional pain syndrome. This is a complicated and often difficult to treat treatment [sic].” He said the trials with Nortriptyline and Prednisolone were “without significant positive effect.” He advocated a ketamine infusion “to help her reset her pain system and allow her for rehabilitation.” This would involve “one week inpatient stay, PICC line and medical reviews.” (PCB 39) Dr Lee next reviewed Ms Baker on 11 April 2018. He sent a short report to Dr Lowe by letter of the same date. The doctor said, “the Cymbalta was not useful. She had it for two days. It led to side effects as had the other five medications she has been prescribed including those preceding my involvement. It seems broadly that oral medications are not her friend.” The doctor continued to advocate a ketamine infusion. (PCB 41)
29Dr Lee provided a report to Ms Baker’s solicitors by way of letter dated 13 March 2019. The report covered the ground already dealt with in his reports to Dr Lowe and provided answers to specific questions raised by the solicitors as follows:
“1. Ms Baker has a complex regional pain syndrome.
2.I provided medication treatments. We discussed the possibility of a ketamine infusion and rehabilitation program. She was not keen on ketamine. She did have a pain assessment for a program in June 2018. This completed in November 2018. She has not attended any further follow up appointments.
3. Regarding her current symptoms I can report her symptoms as of when I last saw her. At that stage, she described persistent pain with neuropathic features and sympathetic features mainly colour changes, temperature changes, and hypersensitivity.
4. The condition itself has a guarded prognosis that being said when last seen she has not had the full range of treatments. Therefore depending on medical interventions, it would be easier to accurately prognosticate at that stage.
5. Possible surgical treatments depending on her current condition may include a ketamine infusion, may include spinal cord stimulation or sympathetic blocks. These would occur with her consent only if she feels that she is willing to have these procedures done.
6. Regarding employment activities, she would have some restriction in walking and physical endeavours. Sitting per se should not be an issue. I note also that it is pathognomonic neuropathic pains tend to vary.
7. Ms Baker’s pre-injury duties were in a vineyard. I understand she was managing it although it was a small operation and she may have been the only employee. I think she may have characteristics to perform management role but if she is only managing herself that would be less straightforward.
8. She had no capacity for work.
9. Certainly the condition as it was last year would lead to a restriction in social recreational activities but as she is not at medical end point, I cannot say whether that is indefinite.” (PCB 43-44)
30Dr Lee referred to a further consultation and assessment conducted on 15 March 2019, almost 12 months after the previous assessment. He said, “At that stage, she elected to look to explore conservative treatments with the pain rehabilitation program, which was a more than reasonable pathway. Unfortunately, it did not lead to improvement and she was unable to participate fully nor do the graded motor imaging which is one of the few evidence based treatments for at least some CRPS conditions. Regarding the last 12 months, I noted she was using Endone twice a day but this was only for the last eight months. The Panadeine Forte is probably similar levels. Overall she felt her pain was slightly better although the flares were still intrusive and to varying extents. She described some issues with intolerances of anti-inflammatories causing anaphylactic type reaction. She also had reaction to proton pump inhibitors or reflux tablets.” (PCB 44) The doctor noted Ms Baker’s continual resistance to a ketamine infusion or the introduction of spinal cord stimulation. (PCB 44‑45)
31Dr Navin Rudolph, the breast, endocrine and general surgeon, provided a report to Dr Lowe following referral of Ms Baker for assessment. The doctor’s report dealt with an isthmus nodule in her thyroid which seems otherwise irrelevant to the issue of her right foot. (PCB 70) Similarly, reports from Mr Tim Iseli of 30 March 2017 and 13 June 2017 and 6 July 2017 at PCB 72‑74.
32Mr James McGregor, musculoskeletal physiotherapist, reported to Dr Beischer in a letter dated 19 June 2017 that he had commenced treatment “for management of [Ms Baker’s] right midfoot soft tissue injury and possible CRPS.” He said that he had started her on theraband and intrinsic foot strengthening exercises, and suggested hydrotherapy. (PCB 75) A further report, this time to Dr Lowe, was given by Mr McGregor by letter dated 23 November 2017. He said, “A week ago she developed right forefoot pain. She is tender at the distal aspect of her 2 & 3rd metatarsals. I have asked her to stop any calf raising exercises, except during hydrotherapy, for the time being. I suggested that if it does not settle over the coming week further investigations will be indicated.” (PCB 77) Mr McGregor provided a report to Ms Baker’s solicitors by letter dated 11 May 2019. Mr McGregor said, “Michelle’s presentation was consistent with a right foot and ankle soft tissue injury and subsequent dysfunctional tissue healing and CRPS with limited range and strength in the region.” He referred to the exercises which he had prescribed and referred to “practised gait re-education.” He said he last saw Ms Baker on 31 May 2018. “At that stage she could calf raise and lower 48kg of her 80kg body weight through her right leg. This was limited by pain. She had reached that level in July 2017 and had stayed around that level since. This is enough strength for walking on a flat surface at a modest pace but fatigue would resulting [sic] in strain and a limp. A moderately healthy person can lift and lower more than their body weight through a single leg.” (PCB 77) He said, “At the time of last assessment I expected Michelle to continue to have a limited walking and standing capacity as well as need for pain management. I expected this to be the case for the foreseeable future. To make a more accurate prediction about her capacity and medical needs would require a current assessment.” As of May 2018 he said, “it would appear that Michelle would have ongoing limits to bending, lifting, twisting, squatting and similar activities. Walking and standing would be limited and more troublesome over uneven or inclined ground. Michelle would be able to use stairs, steps and ladders but would have limited endurance. I would expect these issues to continue on into the future but I would need to review her to determine the extent.” He said he would not expect her sitting to be limited, “but chronic pain and the use of analgesics might be a factor with regards to work capacity.” He said she would not be able to return to her pre-accident duties. “Michelle would only be able to undertake these duties on a part-time basis and at a limited pace. She may not be able to safely and consistently walk over difficult terrain such as muddy or slippery surfaces which I expect would occur on a vineyard.” He said, “Considering Michelle’s injury I would expect Michelle to be able to undertake office based employment (or similar) within her skill level. Chronic pain could limit the hours she can work and an assessment from a suitably qualified practitioner would be required to determine this.” (PCB 78)
33As noted above, Ms Baker on referral attended the Pain Management Unit at the Victorian Rehabilitation Centre. The Unit provided a Multidisciplinary Discharge Report dated 23 May 2018. According to that report, she attended five sessions of physiotherapy and four sessions of occupational therapy. (PCB 79) According to the report:
“Despite utilising active management strategies, Ms Baker reported flare-ups that were severe and unpredictable … Ms Baker discharged early from physiotherapy and occupational therapy, given minimal changes to her pain experience and as she felt confident to exercise and continue with GMI therapy independently, while continuing to apply active management strategies.” (PCB 81)
34In May 2018 Ms Baker attended Mr Ash Moaveni on referral by Dr Lowe. Mr Moaveni reported to Dr Lowe by letter dated 10 May 2018 in which he noted various orthopaedic injuries and issues including the “crush” injury to Ms Baker’s right foot. The report, however, deals principally with an injury to the left shoulder. (PCB 97) Mr Moaveni provided a further report dated 24 May 2018 in which he diagnosed “a small full thickness rotator cuff tendon tear” and described various treatment options. (PCB 98) A final report by Mr Moaveni by letter dated 28 June 2018 referred to a favourable outcome of a left shoulder arthroscopy. (PCB 99)
35A further Interdisciplinary Assessment Report from the Pain Management Unit at the Victorian Rehabilitation Centre as of 23 May 2018 reported:
“On Physical assessment Ms Baker had an antalgic gait pattern (decreased ankle mobility on right stance phase), decreased right hip (gluteals) and right ankle strength, reduced ankle active ranges of motion (plantar flexion and inversion) which was pain limited and good sensation to light touch in both feet/lower limbs.” (PCB 101)
36According to the report Ms Baker’s “presenting condition” was “Persistent right foot pain (CRPS spectrum)” with an onset from 17 March 2017. It recorded complaints of pain and restriction consequent upon the right foot injury. (PCB 101)
37In March 2021, Ms Baker saw Dr Glareh Arfaei, a rehabilitation physician and pain specialist, on referral by Dr Lowe. Dr Arfaei provided an initial report dated 31 March 2021. According to the report:
“On examination, she is a young lady who was slightly overweight and has had allodynia and hyperalgesia on top of the right foot with mild swelling and cooler foot compared to the left. She has maintained reasonable range of movement but compared to the left has less dorsiflexion. She reported self-report of colour change but it was not evident to me and there was no sign of trophic changes on the skin.”
38According to Dr Arfaei, Ms Baker complained that:
“she has pain on top of the foot with radiation to the ankle and leg describing the pain as burning and electricity, feeling like ants are crawling, changing between hot and cold with some colour change, increasing sweats and temperature change. She is usually using the carbon fiber orthosis in her shoes and has a slightly reduced range of movement on dorsiflexion. She also reported that intermittently, her skin is sensitive in shower and having a blanket on the foot suggestive of allodynia.” (PCB 104)
39The doctor prescribed a trial of a lignocaine patch. An alternative treatment plan entailed “using compound cream with a combination of ketamine, Lyrica, Endep and clonidine.” (PCB 104) Dr Arfaei conducted a further review of Ms Baker’s condition on 30 July 2021 and reported to Dr Lowe in a letter of the same date. The doctor described Ms Baker as having “a history of chronic right foot CRPS.” The treatments suggested in the first report had not been successful. The doctor said she would seek approval from WorkCover “for some peripheral nerve block”. (PCB 106) The doctor conducted a further review of Ms Baker’s condition on 19 October 2021. She noted that she had “injected [Ms Baker] with a mixture of depopred 40 mg and 5 mL of ropivacaine to the right medial plantar nerve and interdigitals … no complication after procedure was observed. (PCB 107) This was presumably the ineffective injection which Ms Baker described in one of her affidavits. Dr Arfaei reported by letter dated 19 November 2021 on a telephone conversation that she had conducted with Ms Baker in which they discussed treatment options. According to the doctor:
“The two options that I could offer her were included pulsed radiofrequency of the nerve root at L4. L5 and S1 as well as lumbar sympathetic block. I am aware that Michelle is scared of this operation concerning if it goes wrong. The alternative would be having a trial of ketamine infusion which also is a common way of managing CRPS type pain as there is a neuropathic pain component. Similarly she has heard bad side effects from ketamine, and may not be interested.” (PCB 108)
40On 13 June 2018, Ms Baker underwent a “Left shoulder arthroscopy, synovectomy, bursectomy and rotator cuff tendon repair” conducted by Mr Moaveni. As previously noted, this surgery appears to have had a favourable outcome. (PCB 109-10)
41On 19 October 2021, Ms Baker underwent a “block” procedure carried out by Dr Arfaei. According to the “block assessment” in the patient’s remarks section, Ms Baker reported “a lot of swelling and veins popping out, feeling of foot going to explode 6 hours”. (PCB 111)
42On 10 May 2019, Ms Baker attended Dr Meena Mital, a pain physician and specialist anaesthetist, for medico-legal assessment and report. The doctor provided a report by way of letter of the same date to her solicitors. He records that Ms Baker “presents with a longstanding history of chronic right foot pain after being involved in a work-related incident. I note that she has been previously diagnosed with complex regional pain syndrome.” The doctor said;
“Ms Baker reports pain to be present on the dorsal aspect of her foot, which radiates into the toes. The pain is present constantly and rated anywhere between 2-9/10. It is aggravated by weightbearing with limited walking and standing. She describes the pain to be burning, sharp and stabbing in nature. She also describes some increased sensitivity secondary to touch for example irritation caused bed sheets or running water. There is intermittent swelling of the right foot and she describes feeling sensations of alternating cold and heat. She reports that with the swelling her skin becomes tight and shiny and she feels that the foot is about to explode. The right foot also changes colour intermittently into, blue, pink or mottled colour. She has not noticed any changes in diaphoresis and has not noticed any trophic changes. She has a sensation of instability in the right foot. As a result of the pain, she wakes up several times at night, which results in disturbed sleep.” (PCB 129)
43He described her on examination as “alert and orientated throughout the examination. She answered all questions appropriate. Her affect was within normal limits. Her gait was normal. I noted that her right shoe was orthotics.” He noted a reduced range of motion in the right ankle:
“globally with reduced power to 4/5 in all directions. The right foot was slightly swollen and cooler on palpation. There was no colour change, change in diaphoresis or trophic changes that were noted. Peal pulses were present and equal. There was tenderness on light palpation on the dorsal aspect of the right foot and just inferior to the medial malleolus.” (PCB 130_
44The doctor said Ms Baker showed “several photographs of both feet in which the right foot was clearly swollen with shiny skin with red-blue discolouration.” (PCB 130) According to the doctor, “Complex regional pain syndrome is a very difficult condition to treat and given the fact Ms Baker has had this condition for well over two years would indicate that reversibility at this stage is very difficult.” (PCB 131) The doctor said, “I do not believe that Ms Baker has a physical capacity to perform her pre-injury duties either on a part-time or full‑time basis.” He said that Ms Baker was “precluded or restricted in relation to employment activities involving:
a. Bending, lifting, twisting or stooping.
b. Kneeling, squatting or couching [scil crouching]
c. Prolonged sitting, walking or standing.
d. Walking up inclines or down inclines.
e. Walking on uneven ground.
f. Using stairs, steps or ladders.”
45According to the doctor, “this incapacity will continue for the foreseeable future.” (PCB 131‑2)
46Ms Baker also attended a medico-legal assessment by Dr Joseph Slesenger, specialist occupational physician, on 6 May 2019. The doctor reported on that assessment to Ms Baker’s solicitors in a letter dated 13 May 2019. (PCB 136-44) According to the doctor, Ms Baker “provided a clear and consistent account of her injuries. Her affect was normal. Her eye contact was good. She appeared neat and kempt.” He said, “She sat during the course of the narrative without obvious discomfort.” He observed that, “She walked with a pronounced right-sided limp with reduced weight bearing on the right side.” (PCB 138) The doctor carried out a full orthopaedic assessment including ranges of motion. As to the right foot and ankle, he said, “Inspection revealed no wasting. There was mild swelling over the lateral malleolus. There was no alteration in hair distribution. There was no mottling. There was no alteration in sweating. There was no discoloration. Her nails were neat and well-trimmed.” He observed, however, that “There was severe tenderness to minimal palpation over the lateral malleolus and the inframalleolar area. There was no increased temperature in the overlying skin.” (PCB 140) The doctor diagnosed a soft tissue injury to Ms Baker’s right foot with “Subsequent development of chronic pain and complex regional pain syndrome (which appears to be resolving). The doctor said, “With regard to the right foot, I am of the opinion that she is reaching a position of maximum medical improvement and has exhausted most conservative measures.” (PCB 142) He said:
“The Prognosis with regard to Ms Baker’s right foot must be guarded given the length of her impairment and disability and her limited response to treatment to date. I note the complex regional pain syndrome can be a self-limiting disease; however, I also note that severity of her symptoms and that she has no objective findings of complex regional pain syndrome on evaluation. I am, therefore, cautious with regard to any likely improvement that she will see in the foreseeable future.”
47The doctor said the foot injury rendered Ms Baker unfit for her pre‑injury duties. He recommended the following restrictions:
· Avoid sustained forward reaching
· Avoid over shoulder reaching
· Avoid repetitive shoulder tasks
· Avoid push, pull, carry or lift over 5 kg
· Avoid squatting, kneeling or crawling
· Avoid walking on uneven ground
· Avoid climbing
(PCB 143)
48On 7 May 2019, Ms Baker attended Mr W.H.B. Edwards, an orthopaedic surgeon specialising in foot and ankle surgery. He provided a report to Ms Baker’s solicitors of the same date. As to his findings on physical examination, Mr Edwards said:
“She has an asymmetrical peek-a-boo on this [right] side reflecting varus. Her calf [scil the right one] is of diminished size measured at maximum girth of forty centimetres at ten centimetres below the tibial tuberosity, as opposed to forty and a half centimetres on the other side. She can single foot toe stand on the left not on the right. She can single foot stand on the right foot. She walks with antalgic gait pattern but without a gait aid and without a navicular drop sign. She can heel walk. She cannot toe walk.”
49He said:
“There is tenderness of the dorsal midfoot in line with the second web. There is tenderness at the insertion of tibialis anterior. She has full function of all long motors. There is an area of eight by seven centimetres on the dorsum of the foot of insensitivity. She also talks about sensitivity of her leg in its mid portion particularly to hot water. There are no especial scars. The midfoot is not unstable but is subtly irritable.” (PCB 148)
50Mr Edwards said that Ms Baker does not have the capacity to perform her pre‑injury duties. As to alternative duties, he observed:
“she has trouble with activities that include, standing, walking, squatting, kneeling, carrying, pushing and to a lesser extent driving. She has trouble with shoes; she finds that they are very limited. She needs a stiffened soled shoe and she needs one of adequate size.” (PCB 140)
51He concluded that Ms Baker’s incapacities would continue indefinitely. (PCB 151)
52By letter dated 11 April 2022, Dr Richard Sullivan, an interventional pain specialist and specialist anaesthetist, provided a medico-legal report to Ms Baker’s solicitors. He said Ms Baker presented with the following symptoms:
Pain affecting her right foot. She described severe pain in the dorsum of her foot extending down to the toes. The paid was described as stabbing, throbbing with associated swelling, increased sensitivity of the skin and tissues over the dorsum of her foot and ankle on the right side. She reports associated sweating, a freezing sensation in the foot, a sense of the skin stretching and a sense of insects crawling over the skin. (PCB 161)
53He rehearsed the history of the treatment received by Ms Baker and observed as at the date of his report: “at this time aside from her medication, she is not receiving any specific treatment for her injurious condition.” (PCB 163)
54He told the solicitors:
“Overall, I do not believe that your client is receiving an appropriate level of care for her diagnosis and I would recommend her referral back an appropriately resourced chronic pain management unit to focus on treatments including guided motor imagery, gentle mobilisation, medication review and consideration for more invasive treatments including neuromodulation (spinal cord stimulation).” (PCB 165)
55The doctor concluded that Ms Baker “has complex regional pain syndrome of her right lower limb”. He said in making this diagnosis:
“applied the diagnostic criteria of the International Association of Study of Pain as per the modified Budapest criteria noting unexplained persisting pain, presence of hypersensitivity (allodynia), presence of pseudomotor change, presence of vasomotor change and presence of motor and trophic change. She met the diagnostic criteria for symptomatology and met he diagnostic criteria for observable signs.” (PCB 165)
56He advocated a similar range of restriction of Ms Baker’s activities as mentioned by other examining practitioners. (PCB 166) He said that Ms Baker “cannot reasonably return to her pre‑injury employment.” Dr Sullivan provided a supplementary report to Ms Baker’s solicitors by letter dated 28 May 2022. Asked relative to alternative occupations such as accounting clerk, bookkeeper or order clerk, Dr Sullivan said, “Your client [viz Ms Baker] has at best capacity to perform completely sedentary work of a part‑time nature to a total of approximately four hours per day, three days per week on non-consecutive days to a total of around 12 hours of work per week.” (PCB 169) This work would be subject to the full range of restrictions mentioned by Dr Sullivan and other examiners. (PCB 170) The doctor mentioned there are problems with suggested alternative occupations and concluded:
“I would support re-engagement in vocational placements with the aforementioned restrictions only after your client has completed a comprehensive pain management and rehabilitation program and has achieved substantive de-escalation and ideally cessation of her opioid-based medications to ensure appropriate and reliable cognitive function to engage in the suggested job roles.” (PCB 170)
57Ms Baker was assessed for medico-legal purposes by occupational physician, Dr James Rowe, on 5 May 2022. The doctor furnished a report of his examination and assessment to Ms Baker’s solicitors by way of letter dated 5 May 2022. He reviewed her medical history and prior assessment by reference to written reports from a wide range of expert examiners. According to Dr Rowe, Ms Baker suffered complex regional pain syndrome to which her employment at Warramunda Estate was a “significant contributing factor”. He says her prognosis was “poor”, having been diagnosed with the syndrome “unusually early following the work accident.” He continued, “There has been resolution of the clinical symptoms of her injury however she has made very little improvement in functionality or mobility. Unfortunately this is not an unusual feature in the course of this condition.” Ms Baker, he said, had “increased probability of premature onset of degenerative change.” (PCB 177) Dr Rowe prescribed all of the extensive restrictions on Ms Baker’s activities advocated by other examiners. He added, “particularly on a repetitive basis or as part of any required duties.” He said Ms Baker’s symptoms would “last for the foreseeable future”. He continued;
“Ms Baker has qualifications and experience that would seem to make her an ideal candidate for eventual transition to another field of employment or at least to one within the area in which she had such extensive experience. At present however the symptoms and limitations around her CRPS indicate that this is improbable.”
58According to the doctor, Ms Baker could not safely perform her pre‑injury duties and would not have the physical capacity to do so. The doctor was “very pessimistic about her chances of a return to any employment in the foreseeable future”. (PCB 178) The doctor furnished a supplementary report by way of letter dated 25 May 2022 to the solicitors. He had been asked to review a vocational assessment report from a consultant engaged by the defendant and a report from Dr Tim Hwang, an occupational physician, also engaged by the defendant. According to Dr Rowe, “the question is whether or not Ms Baker has real world capacity to win and maintain suitable employment.” Dr Rowe said there was an “overriding concern that injured workers, particularly those who are still receiving treatment, must not be placed in harm’s way.” He noted that Ms Baker was “still undertaking and still requires extensive treatment and that this will be the case for the foreseeable future.” (PCB 181) Dr Rowe concluded that Ms Baker’s “chances of returning to paid, meaningful employment in the open labour market, are so remote as to be non existent.” He said there were very particular requirements that would have to be met to enable her return to work, those “including a sympathetic employer, a supportive workforce, acknowledgment of restrictions, and flexible employment hours with unexpected absences.” Dr Rowe continued:
“I do not believe she has capacity for full or part time employment in the next 2-3 years. Perhaps eventually, self-employment where she is accountable to no expectations other than her own, and she can work exclusively at her own pace and capacity, she may also be able to attempt to return to work. Presently however her reliability, her treatment requirements and her restrictions do not make her a viable candidate for employment by a third party.” (PCB 182)
59The defendant had Ms Baker assessed for medico-legal purposes by consultant occupational physician, Dr Tim Hwang, on 28 March 2022. (DCB 83-9) The doctor provided a report by way of letter of the same date to the defendant’s solicitors. The doctor had previously carried out an assessment on 10 October 2019 and remotely on 21 June 2021. The doctor reviewed the treatment which Ms Baker had received and took a history of her symptoms as at March this year, including a description of ”strong discomfort if water falls directly on her right foot when showering.” He also recorded, “She drives, and on rare occasions when she is in a lot of pain she drives with her left foot.” The doctor described Ms Baker as continuing “to avail herself for photography work but described having had to cancel sessions due to having a bad day.” The doctor said, “She continues to look for clerical-type jobs but in a more passive manner, noting that she has been unsuccessful despite her attempts.” He said, “She continues to describe background ache at all times increasing to a crushing or stabbing pain on bad days.” (DCB 85) The doctor recorded Ms Baker as walking with “a fairly subtle limp characterised by some degree of stiffness of the right leg.” He said, “she was able to partially squat but at about one third of a squat she began leaning more heavily to the left.” The doctor noted no discolouration or obvious loss of hair or abnormality of the nails in either of her legs. He noted “slight puffiness around the right foot and ankle consistent with soft tissue swelling”. At the narrowest point he found a circumference of 24 centimetres for the right ankle and 23 centimetres on the left and observed that “The right foot was noticeably cooler than the left on palpation. She explained that sometimes it is cool and sometimes it is hotter.” (DCB 86) The doctor said, “Diagnosis remains CRPS affecting the right foot, with some objective findings as documented.” He judged the prognosis to be “for symptoms to continue into the future.” He said he was “apprehensive” about further treatment advocating “a non-interventional pain management specialist”. (DCB 87) According to Dr Hwang, “she can undertake predominantly seated duties. I consider that she can undertake photography duties and social media duties, however, unfortunately it appears that her skills in social media have lapsed since the completion of the course.” The doctor said that Ms Baker’s ability to “undertake store manager duties” would be limited if it required attending the business on a regular basis or standing for a significant period of time. He said, “she has capacity to undertake duties of an administration assistant and data entry operator, although on the basis of her described symptoms her attendance may be unreliable.” He concluded, “I consider that she has capacity for suitable employment 15 hours a week at this stage if opportunities are available.” Significantly the doctor said:
“I did not form the impression that there was clear functional overlay or exaggeration. Obviously in situations of chronic pain there is a close interplay between psychological and physical contributors to pain perception. I do not consider there to be clear psychosomatic factors.” (DCB 88)
60The consultancy Recovre, consultants in vocational matters, furnished an assessment report to the defendant’s solicitors dated 9 May 2022. The report summarised Ms Baker’s educational and training history and her employment history, then turned to the opinions of the various medical experts who have assessed her condition and physical capacity. The report stated:
“Medical opinion provided confirms Ms Baker is unable to return to her preinjury duties but does have a capacity to perform suitable employment. Various restrictions have been suggested, namely avoid prolonged standing and walking, walking on uneven ground, inclines, stairs, steps or ladders, squatting, kneeling, crouching and manual handling greater than 5kg.”
61It was noted that Drs Dupuche and Hwang “recommended seated roles” and that Dr Dupuche has “indicated the administrative assistant and data entry operator roles to be suitable and the store manager role suitable if able to sit when required.” The assessor said that Ms Baker presented a “somewhat pessimistic and non-committal regarding her ability to return to any form of suitable employment on a reliable basis.” They say that she complained of pain and restriction as limiting factors to all possible employment including her own photography business. They said she “demonstrated no interest or acknowledgment for skills in book-keeping and accounting or for any other administrative based work.” (DCB 163) The report suggested some five options with the following gross weekly wage:
1. Accounts Clerk $1,398
2. Payroll Clerk $1,506
3. Bookkeeper $1,215
4. Order Clerk $1,307
5. Stock Clerk $1,453
62The report also mentioned the role of photographer with a gross weekly wage of $1,241. (PCB 238) The role then identified particular advertised positions. The nominated gross weekly wage represented pay for full-time work. Some of the positions were solely full-time, others, for instance the “bookkeeper” role, employed four staff members, one full time and three part time with the possibility of work on a casual basis for 25 hours per week at a salary of $50 per hour. These roles and the others nominated were predominantly sedentary. Some including the bookkeeper role allowed for the possibility of work from home. According to the assessors, these roles could accommodate the various limitations and restrictions prescribed by the medical examiners.
63Dr Tim Hwang, consultant occupational physician, carried out his first assessment of Ms Baker for the WorkCover insurer on 10 October 2019 and provided a letter by way of report to the insurer of the same date. The doctor noted, “since the injury she explained that if she tends to avoid kneeling or squatting …” He said she reported that whilst she tries to be active:
“her ability to walk or weight bear for long periods of time is diminished due to her right foot. On good days she is able to walk her dogs up to one kilometre on other days she struggles to get past her front door. She spends much of her time sitting down. When her right foot flares up the pain is present regardless of walking, sitting or standing. The presence of the pain makes it difficult to walk or stand for long periods of time, however, taking the pressure off does not significantly reduced the background pain.” (DCB 72)
64He said, “she described some degree of allodynia but this has improved since its worse stage. She can put on her socks and shoes with some discomfort. On occasions she still sleeps with her foot outside the blankets due to discomfort.” (DCB 73) Dr Hwang said that Ms Baker “was noted to walk with a limp, with a shortened phase on her right leg, such that she weight-bears for longer periods on her left than her right side.” (PCB 73) He said “she demonstrated partial squatting to approximately three quarters of a full squat.” (PCB 73)
65On examination of the legs, the doctor felt “there was very subtle redness on the right lower leg above the sock line. There was some swelling noted on both ankles somewhat more on the right than the left. She clarified that the right ankle and above were symptom-free at the time.” (PCB 74) The doctor found nothing “obviously abnormal” relative to the feet, but noted the right foot being slightly cooler than the left on palpation. Circumference of the mid-foot was 24 centimetres on the right versus 23 centimetres on the left, “indicating some degree of swelling.” (PCB 74) The doctor diagnosed “CRPS1 following crush injury R foot.” (PCB 74) The doctor made a further assessment on 7 June 2021 remotely, via video conference. He noted that since his earlier assessment, according to Ms Baker, “her symptoms had not improved to any significant degree.” As to driving, according to the doctor, Ms Baker told him that “sometimes [she] has to stop during the middle of her drive to rest her foot. She describes on occasions having used her left foot for driving.” (DCB 79) The doctor diagnosed complex regional pain syndrome which he thought was more consistent with Type 2 than Type 1 of the syndrome. He remarked:
“Although her clinical feature are subjective in nature and I was unable to detect any object of abnormalities on the basis of telehealth assessment I consider that her overall presentation is consistent with her condition and reported symptoms. I consider that she has the capacity to undertake duties in a predominantly seated capacity.” (DCB80)
66He said he did not “get the impression that there were features of exaggeration”. (DCB 81)
67On 17 May 2022, Mr W.H.B. Edwards, an orthopaedic surgeon specialising in disorders of the foot and ankle, conducted a medico-legal assessment of Ms Baker at the request of her solicitors. He described Ms Baker as complaining “about a painful foot” with pain fluctuating between mild and severe. She told the doctor that on the day of his examination, the pain rated at 45/100. She described the pain as “aching, throbbing, electric and stabbing.” She also complained of a feeling that ants were crawling over areas of her foot. At times, she said, the foot suffered a “freezing feeling.” According to the report, “she said there was pain at night and it either wakes her or stops her going to sleep between two and four nights a week.” According to the doctor, Ms Baker told him that her pain was worse if she walked on rough ground, “down more than uphill and more than upstairs.” She told the doctor she could not “deal with ladders.” She reported changes in colour of her right foot and “it goes purple, red and pink.” (PCB 275) The doctor measured Ms Baker’s calf circumference as equal in right and left legs. (PCB 276) He said Ms Baker told him she “does one or two hours a week of photography.” (PCB 276) The doctor diagnosed “a soft tissue injury to her foot which has caused nerve generated pain.” (PCB 278) According to the doctor, Ms Baker’s prognosis is “she will stay as she is.” As to physical mobility, the doctor said Ms Baker told him she had difficulty in stooping, knelt in a different way and was unable to squat or crouch. She could not engage in prolonged sitting. (PCB 279) Her difficulties with hills were more with descending rather than ascending. (PCB 280) The doctor said Ms Baker was unfit for pre-injury duties. (Ibid)
68Treating practitioner, Dr Rebecca Lowe, furnished a report to the plaintiff’s solicitors by facsimile dated as recently as 25 July this year. She diagnosed a crush injury to the right foot resulting in chronic complex regional pain syndrome. According to the doctor, Ms Baker’s condition was “unlikely to change significantly unless new, novel therapies become available in future.” As to employment capacity, the doctor said Ms Baker “would struggle with prolonged walking or standing, inclines and declines, uneven ground, stairs, steps and ladders. The extent would vary between somewhat to majorly depending on the severity of her symptoms on the day. This will continue for the foreseeable future.” (PCB 282)
69Treating rehabilitation physician and pain specialist, Dr Glareh Arfaei, provided a report to the plaintiff’s solicitors by way of letter dated 26 July 2022. The doctor reviewed the various treatment and modality which Ms Baker had undergone. He declined to express a view as to capacity for work, observing: “I am not an expert in occupational medicine.” (PCB 288) As to prognosis, the doctor said, “It is difficult to predict/prognosticate outcomes of chronic pain. This was because of a number of reasons: pain is variable and fluctuates, sometimes for no reason, it can improve or even worsen over time, the effects of pain are generally unpredictable and can include physical and emotional consequences – some mild but some debilitating like poor sleep, depression and anxiety.” (Ibid) The doctor said that pain should be regarded as chronic if it persists for more than three months. He continued, “chronic pain is considered pathological pain in that it is a maladaptive response to tissue inflammation or neurological damage and causes pain of no biological value.” He said that chronic pain “leads to suffering, changes in cognition as well as changes in emotional and mental health – this includes depression and anxiety and any other premorbid mental disorders may be triggered or worsened. It causes a reduction in quality of life and level of function.” (PCB 289)
Plaintiff’s post-accident activities
70In cross-examination by defendant’s counsel, Ms Manning, Ms Baker was taken to a number of pages from her website promoting her small business, Elite Focus Photography. (DCB 212-249) This material, as re-produced in colour in the Defendant’s Court Book, shows high quality work, both technically and artistically. Ms Baker had undertaken a number of photographic training courses which were self-funded. (Transcript (“T”) 25) In her resumé, Ms Baker said: “I have a passion for photography with an eye for detail and editing. My objective is to obtain a flexible position in a professional environment focussing on action stills photography and design where my skills are valued and can benefit the organisation.” The resumé continued:
“My portfolio contains a diverse collection of photographs including sports, animals, candid action shots, landscapes, macro plants/flowers, aircraft, portraits, street and abstract.”
71Her resumé referred to Ms Baker’s involvement and success in a number of award programs and competitions in 2019. Her resumé stated, “Channel 7 News Weather featured my photographs on more than 20 occasions.” As part of a specialty in preparing dog portraits, she attended a number of canine day events, including “Coldstream Animal Aid Adventure Dog, the Northern Victorian Dog Sled Club Classic and the Altitude 5000 Dinner Plains Sled Dog Races.” (DCB 195) Speaking of the event at Coldstream, she said “it is where the owners of their dogs take their pets for a fundraising event for animal aid themselves, and they just go through an obstacle course, and I basically just stand at one of the obstacles and took [scil take] photos.” (T26, L25-29) Ms Baker agreed that this was a day long event, but said, “I didn’t spend all day doing it.” (Ibid, L30-31) She was there for the whole day, but did not take photographs throughout the day. (T27, L1‑2) She described the day as follows: “I would’ve been doing [photography] for 40 minutes and then I went back up, got some drink, tablets if I needed tablets, and then got a lift back down and did that through the day.” (Ibid, L3‑7) She said the photographic sessions were “40 minutes at a time.” (Ibid, L9) There were about five sessions in the day. (Ibid, L11) She said her attendance at fundraising events such as this and another event at the Melbourne Cricket Ground in support of a cerebral palsy charity did not provide her with any fee for her attendance. It was her contribution to charity and the opportunity to gain experience. (Ibid, L26‑31) Describing her attendance at an event involving husky races, she said: “I get driven out to the specific spot and with husky races it is 20 minutes, and all the races go through. They come out, they collect me, take me back, and then they set up for the next one which could be for an hour between, and then same thing, take me out to the place on the track and do the same thing.” (T28, L13‑19) In those circumstances, Ms Baker’s hope was that the dog owners would purchase the photographs that were taken. (Ibid, L21‑23) Ms Baker said that at these events, she operated with two cameras and had a “helper” to carry this equipment. (T29, L17‑25) Ms Baker says her home studio was her garage, with a backdrop installed and two studio lights and a table. (T30, L20‑22) Describing her operations at the canine events, she said “there’s positions that I have to use to take my photos. I tend to lay [sic] down because I can’t really crouch or I can’t go on one foot or – yeah, so I choose positions that hopefully I can get the photos, and not to impact my foot.” (T31, L15‑19)
72Ms Baker agreed that she has informed medico-legal examiner, Mr Edwards, that her lifting capacity was limited to 5 kilograms. (T32, L26‑30) She explained that the limit on lifting derived from the additional pressure that was placed on her injured right foot rather than any limitation in power in her arms or upper body. (T33, L1‑11) She said she adopts a special pose when required to kneel – “I kneel on my left knee and I have the right leg tucked up behind so it’s resting on the left foot.” (T33, L26‑28) As to kneeling on both knees, she said this was something which she tried to avoid. She said “I try and avoid it, at times I would’ve had to have done it, but I try to avoid it.” (T34, L13‑16) She said she was unable to crouch. (Ibid, L19‑22) She said she could squat, but it was very painful. (T35, L4‑6)
73Asked if she was “well capable of sitting in a car for … one and a half hours”, Ms Baker said “depends on the pain level and depends on the day.” The events which Ms Baker attended as photographer indicate an ability to travel around Victoria, including to relatively remote locations in the Southern Alps, presumably by motor vehicle.
74Her portfolio, as disclosed in the Defendant’s Court Book, shows nature photographs taken in various parts of regional Victoria. She and her partner own a campervan, depicted at DCB 228, in which they take trips around Victoria and beyond. Ms Baker said “we drive out the driveway not knowing where we’re going and we end up where we end up basically.” (T58, L2‑4) She added, “I’ve always got medication with me and we’re actually within phone – we very rarely go without phone service anywhere.” (Ibid, L15‑17) The sleeping quarters were to be found in the “top hood section”, as depicted in the photograph. (Ibid, L19) One of their trips took them along the Great Ocean Road to Heyfield, including Port Campbell. Another trip took them to the Mundi Mundis. (T60) This is near Silverton in the general area of Broken Hill. (T59, L15‑18) One of the photographs in the portfolio and Court Book was of the lighthouse at Port Fairy. (T61, L27‑29) Another photograph at DCB 222 depicted Metung. (T62, L28‑30)
Video surveillance
75The defendant relied on video surveillance of Ms Baker which, together with the report of the investigator, constituted Exhibit 1. The video relied on was of Ms Baker’s attendance at a daylong event at Warratina Lavender Farm in Wandin North. The video, as displayed, occupied about 50 minutes. Ms Baker was in attendance from 7.35am until 5.26pm, according to the investigator’s report. The video showed Ms Baker in shorts, with a T-shirt advertising her business “Elite Focus Photography” with the business name and a logo. She was accompanied by her mother, who acted as her helper.
76Ms Baker’s activities, as displayed on video, were in stark contrast to the account which she gave the various examiners. To the untrained eye, she moved and conducted herself as if unaffected by any orthopaedic disability. The daylong event was attended by dog owners and their pets. Ms Baker was offering her photography service to provide portraits of the pet dogs. It was necessary for her, in those circumstances, to photograph the animals from ground level. The video displayed crouching, bending and kneeling. The kneeling was typically in the form of a one knee genuflection with the right knee grounded. Frequently, however, she moved from this position to a full “kneel” on both knees, without apparent hesitation or “guarding” behaviour. She conversed cordially with all her customers and appeared to be smiling and happy throughout the period of video. Asked about this, Ms Baker said she avoided kneeling if possible: “and I would avoid it if possible. It had been bucketing down with rain overnight and it would’ve been impossible to lay [sic] on the ground that day. So I really had no option than to do that.” (T69, L25‑28) Yet, despite the frequent kneels and genuflections, the video does not depict any mud on Ms Baker’s knees. Ms Baker said the video did not give a true impression of her day. She said it was one of “excruciating pain, limping, having to sit down, having to elevate my foot. Laying on the ground which was not in the surveillance at all, having help was actually helping me.” (T91, L1‑5). When I asked her how, in light of her evidence about the rain bucketing down rendering it impossible for her to lie down, she had on another occasion actually lain down, she replied, “because it was an undercover area.” (T91, L7‑18)
Conclusions
Pain and suffering
77For the purposes of this proceeding seeking leave to bring a damages claim, Ms Baker relies only on sub-paragraph (a) of the definition of serious injury quoted above; that is, relative to organic injury. Mr Mighell QC, who appeared with Ms Bailey for the plaintiff, said that his preliminary discussions with Ms Manning, counsel for the defendant, indicated that the point of difference between the parties was as to Ms Baker’s work capacity. (T4, L14‑17) Ms Manning responded, “my friend is correct when she [as per the Transcript, scil he] says that the main focus of the defendant’s case is the issue of economic loss. I don’t have formal instructions to concede the matter of pain and suffering but it will not be the main focus of the defendant’s case.” (T17, L4‑9) In the event, little was said specifically on the defendant’s behalf relative to the issue of pain and suffering. In her closing address, Ms Manning drew attention to statements by a number of the examiners that further treatments and modalities were available but had not been resorted to.
78Nevertheless, the matters arising from the video surveillance must inevitably raise some concerns as to the merits of the plaintiff’s case on pain and suffering. Nevertheless, in circumstances where all examiners appear to accept the diagnosis of complex regional pain syndrome to the right foot and no examiner alleges embellishment, exaggeration or malingering on the plaintiff’s part, with the defendant launching no specific attack on the veracity of Ms Baker’s right foot injury, it is appropriate for me generally to accept her description of her symptoms and limitations and the diagnosis and other observations of the medical examiners which constitute a consensus. The pain and suffering consequences complained of by the plaintiff and validated by the medical examiners, in my view, in terms of s325(2)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 “when judged by comparison with other cases, in the range of possible impairments” may “fairly [be] described as being more than significant or marked, and as being at least very considerable.” As some examiners have recorded the level of pain complained of by Ms Baker must necessarily seriously disturb her ability to obtain proper sleep. As Maxwell P said of the plaintiff in the case before the Court of Appeal in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [45]:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
79Accordingly, leave to bring a damages claim with respect to pain and suffering should be granted.
Loss of earning capacity
80As noted earlier, the contentious element of this hearing was with respect to Ms Baker’s application for leave to bring a damages claim relative to loss of earning capacity. By virtue of s325(2)(e)(i) of the statute, to obtain a finding of “serious injury” in this respect, it must be established that she has suffered “a loss of earning capacity of 40 percent or more.” The plaintiff relied on a summary of earnings to be found at PCB 293‑4. Putting aside the abortive attempts to return to work, Ms Baker has not been in regular paid employment since the accident in March 2017. Her income since then has been constituted by the relatively modest returns from her photography business. The defendant’s case is that Ms Baker has the capacity to do more with the employment opportunities identified by the consultancy, Recovre, offering, according to the defendant, an earning capacity in excess of 60 percent of Ms Baker’s pre-accident earning capacity, therefore, necessarily, excluding a finding of serious injury relative to earning capacity.
81There is a tension in the position adopted by the defendant, on the one hand not significantly contesting the diagnosis of chronic injury and its pain and suffering consequences, but contending, on the other, that Ms Baker’s disclaimer of ability to engage in various types of employment, which disclaimer is generally consistent with the medical finding, ought not be accepted.
82As to employment capacity, there were broadly two things relied on by Ms Baker and her counsel in support of their contentions of loss of capacity. First, the physical consequences of the regional pain syndrome and, secondly, the cognitive or intellectual consequences of daily use of heavy duty painkilling medication.
83As to the latter, Ms Baker was being asked about her ability to undertake a role in “general administration” (DCB 169) which, according to the requirements identified by Recovre, did not require lengthy standing and was predominantly sedentary but gave scope for varied postures by standing up and walking around. No squatting was required. Ms Baker replied, “around all the pain and manoeuvring around and everything, apart from that, the concentration I have from the tablets is – it’s just not there at times. At times I cannot even put two words together.” (T81, L2‑6) I put to her that there was nothing shown in the video surveillance of her attendance at the daylong event at the lavender farm to indicate an inability to concentrate or an inability to “put on a happy face for the clients.” I noted that she said she had taken substantial medication to enable her to undertake the day’s activities, but did not appear to lack concentration. She replied, “in an office type situation precision and accuracy would be the major part of the job.” (Ibid, L7‑20) She said in preparing reports, precision was essential and there was a high level of responsibility. (Ibid, L29) Ms Baker told me that she had taken medication before going into the witness box. (T86, L14‑15) I said to her “my observation of your evidence is that you have been right on the mark and you followed all the questions, you were giving coherent and well-reasoned answers.” I asked her if that was an unfair observation and she said that it was. (Ibid, L21‑22) She said she had taken her tablets, the second lot for the day, just before walking into the court room for what was the morning session of the second day of the hearing. (Ibid, L24‑26) She said that the medication had not taken full effect and therefore she was not at that point struggling intellectually, (Ibid, L27‑28) though she had struggled a bit yesterday. (Ibid, L29‑30)
84I accurately characterised Ms Baker’s presentation in Court in the questions that I asked her on this point. The person depicted in the video surveillance was also “on the ball”. There was no evidence of bemusement or detachment or inability to carry on with the business of the day. Again, no examiner, on my reading of the reports, made any finding as to cognitive impairment by reason of medication, temporary or permanent. At least one examiner commented favourably upon the coherence of the history which Ms Baker gave. This was of a piece with the evidence which she gave in Court.
85As evidence of Ms Baker’s proficiency in the accounting function, the defendant included in its Court Book at pages 251-258 invoices generated by Ms Baker’s photography business, Elite Focus Photography, relative to her work at the lavender farm in March.
86There was no reason to suppose that the range of heavy duty pain medication that had been prescribed by a variety of treating practitioners for Ms Baker over the past five years were not in fact consumed. Nor may it be doubted that the daily ingestion of such medication would take the edge off a subject’s intellectual performance. Nevertheless, based on Ms Baker’s recorded presentation to practitioners and her presentation in Court, I am not satisfied that these phenomena are such as to preclude her from undertaking routine administrative work, including accounting work.
87Upon the medical evidence and Ms Baker’s own report of symptoms, her professed inability to engage in regular paid employment would appear to be plausible, in particular because of the reports she gives of unpredictable flare-ups of extreme pain and the acceptance of those reports by the medical examiners. If one were to accept the depictions in the video surveillance as being typical of her presentation and capacity, the conclusion that Ms Baker is fit to undertake sedentary office type work would be inescapable. Indeed, one might even be doubtful of the correctness of the universal opinion expressed by the medical examiners that she is unfit to return to pre-accident duties. Nevertheless, as Mr Mighell noted, the video surveillance shown in Court was not the entirety of the surveillance undertaken and obtained on the defendant’s behalf. This is borne out by the terms of Exhibit 1. Mr Mighell and Ms Bailey invited me to conclude, in accordance with established principle, that this further material not put into evidence would not have assisted the defendant’s case. (Jones v Dunkel (1959) 101 CLR 298) Again, the defendant did not, as it could have done, submit the video surveillance shown in Court to its medico-legal experts, inviting them to consider whether they ought revise the opinions which they had already expressed. As previously noted, the surveillance represented a small slice of a long day. Mr Mighell characterised it as “heavily edited”. My own impression is that it was not “edited” in the sense of being “chopped around” after the event. Rather, the video recorded was only run intermittently and for a relatively short time whilst Ms Baker was in view of the investigator. Nevertheless, these considerations lead me to the view that I should not regard the video surveillance as being a representation of Ms Baker’s typical presentation, especially where there has not been a full-blooded attack upon her credit.
88In those circumstances, I accept the position which she takes, and the one which was advanced by counsel on her behalf, namely, that in undertaking her photographic work, she is doing as much as she reasonably can and that the threat of frequent disabling flare-ups of her pain syndrome preclude her from undertaking regular employment of the type advocated by the rehabilitation consultant. It was not suggested that the actual earning capacity which she has demonstrated was 60 percent or more of her pre-accident earning capacity. In those circumstances, Ms Baker should likewise obtain leave to bring a damages claim based on a serious injury relative to her earning capacity.
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