Baljaut v Victorian WorkCover Authority
[2019] VCC 102
•13 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-03050
| RAMANJEET BALJAUT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 January 2019 | |
DATE OF JUDGMENT: | 13 February 2019 | |
CASE MAY BE CITED AS: | Baljaut v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 102 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury and Compensation Act 2013 – s325 and s335 – application in respect of both loss of earning capacity and pain and suffering – reliance upon sub-paragraph (a) of the definition – injury to the low back – earning capacity of the plaintiff – whether suggested employment is suitable and capacity of plaintiff to perform part-time duties – whether further treatment might assist the plaintiff – permanence – whether statutory tests satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith SC with Ms A Smietanka | Slater & Gordon |
| For the Defendant | Mr R Kumar | IDP Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335 of the Workplace Injury and Compensation Act 2013, (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings in respect of both loss of earning capacity and pain and suffering. In so doing, she relies upon sub-paragraph (a) of the definition of “serious injury” contained in s325 of the Act. The injury relied upon is one to the low back. It is alleged that the injury occurred on 31 August 2016. On that day, the plaintiff was in the course of her employment as a cleaner at the Epworth Hospital, (hereinafter referred to as “Epworth”). The injury occurred when the plaintiff was pushing a heavy trolley and aggravated the situation by continuing to perform heavy duties involving laundry material. What occurred shall hereinafter be referred to as “the accident”. No issue was raised as to the occurrence of the accident. There seems to be no argument but that the plaintiff’s claim in relation to it was accepted and she received payment of benefits, including medical expenses, until payment of such benefits was terminated in late 2017. For example, I would refer to Transcript (hereinafter referred as “T”) 25. Thus, that the accident occurred and that the plaintiff suffered some injury as a result were not issues.
2 Mr S Smith SC with Ms A Smietanka of counsel appeared on behalf of the plaintiff. Mr R Kumar of counsel appeared on behalf of the defendant. With the assistance of an interpreter, the plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. An affidavit of her husband was also placed in evidence. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the injury
3 The plaintiff is aged 33 years, she having been born in May 1985 in India. She is a married woman with a seven year old daughter and a son aged six months. The plaintiff completed both her primary and secondary schooling in India and went on to obtain a Bachelor of Arts degree at university, from which she graduated in approximately 2006. She also undertook some English classes, but her English is not particularly good and she required the assistance of an interpreter, both in relation to the swearing of affidavits and to the giving of evidence. I note that she was accompanied by a professional interpreter to several of the medical examinations.
4 The plaintiff and her husband have been residing in Australia since approximately 2009. In September 2011, her daughter was born. The plaintiff completed a personal care assistant course with the intention of working once her daughter was of sufficient age to go to kindergarten. She also completed a Certificate III in Spoken and Written English in approximately 2014, but, as stated, her English is not very good. I would refer, for example, to T24 and T31.
5 In approximately 2015, the plaintiff commenced working at a nursing home for an entity called Ality Management Services Pty Ltd (hereinafter referred to as “Ality”). This was casual work, with the plaintiff working shifts when they were available. It was work that continued up until the accident and certainly during the preceding financial year. She commenced work with Epworth on approximately 18 May 2015. Whilst her job had a more elaborate title, she was essentially a cleaner working on a part-time basis. As shall be discussed, the plaintiff’s regular work was for three days a week, totalling 22.80 hours, although she regularly worked additional shifts.
(b)The plaintiff as a witness
6 I accept the plaintiff as being a reliable witness of truth. As was pointed out by Mr Smith at the commencement of his closing address, effectively the defendant’s case did not involve any criticism of the plaintiff’s credit. I note that Dr Eugene Gehr, orthopaedic surgeon, who examined the plaintiff at the request of her solicitors, described her as being cooperative and giving a clear history consistent with the records. In short, I regard the plaintiff as being an honest witness who did her best to answer questions truthfully and accurately.
(c)The state of the plaintiff’s health prior to the injury
7 The plaintiff has no previous history of back injury. I note that Mr Michael Dooley, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, expressed the view that it was most likely that the injury involved some aggravation of underlying degenerative disc disease of the low lumbar spine. If that be accepted, there is no suggestion that the plaintiff suffered from back pain or related symptoms prior to the accident. The plaintiff has suffered from epilepsy for many years prior to the accident and has been on medication in that regard. Her last seizure was in late 2016. I accept that her epilepsy is usually controlled by her medication and does not interfere with her capacity for work in broad terms, although she does not drive.
(d)The injury, its treatment and diagnosis
8 The injury occurred on 31 August 2016 when the plaintiff was attempting to manoeuvre a heavy cleaning trolley whilst in the course of her employment at Epworth. She worked on for an hour or two, trying to avoid bending and lifting, but felt a worsening of the pain when picking up a linen bin. She received a massage from a colleague, reported the injury, and was sent to see Dr Daniel Mann-Segal in Caulfield. He is what could be called the “works” or “company” doctor. He was not the plaintiff’s usual general practitioner, but she continued to see him solely in relation to her injury. It would appear that, at the time, the plaintiff resided in Glen Huntly, but she and her family moved to Melton South either in late 2017 or early 2018.
9 In any event, the plaintiff attended upon Dr Mann-Segal on the day of the accident and gave an appropriate history. The impression formed by Dr Mann-Segal was of facet joint dysfunction at the left L3-5 levels. He recommended physiotherapy, medication and restricted duties. When he next saw the plaintiff on 6 September 2016, her pain was now extending to her left thigh, with intermittent paraesthesia. Significant pain was experienced when she was sitting or standing for more than 10 minutes. An MRI scan was ordered. This was performed on 9 September 2016. The radiologist could not identify any definite cause of the plaintiff’s symptoms, but commented that there were mild multilevel degenerative disc and facet joint changes and a possible minor contact of the left S1 nerve root with the lateral recess. As is set out in his report of 16 March 2017, Dr Mann-Segal noted that there were some initial improvements, but then the plaintiff’s pain started to worsen. Medication prescribed was of little benefit. A slump test carried out by the doctor was positive on the left.
10 The plaintiff was trialled on Prednisolone, which provided good relief while she was on it. There was also some improvement with the use of Lyrica, but the plaintiff had a syncopal episode and refused to continue taking it.
11 Dr Mann-Segal referred the plaintiff to Mr Greg Malham, neurosurgeon, who saw the plaintiff on 15 March 2017, reporting back to Dr Mann-Segal on 22 March. Mr Malham took an appropriate history. As at the time of his report, the plaintiff was working four hours per day (presumably three days per week) with restrictions of no vacuuming, no lifting of greater than 3.5 kilograms and with alternate sitting and standing every 30 minutes. She had left lower limb pain radiating down the posterior left calf and intermittent right lower limb pain to the knee. Sitting was noted to be the worst aggravation. Medication and physiotherapy had not helped. Mr Malham was of the view that it was appropriate to undertake an updated MRI scan. He also felt that the plaintiff could continue with her current work hours and activities with essentially the continuation of the same restrictions which had been operating. He also suggested that she take three to four walks per day of no longer than 30 minutes. He did not feel that surgery was indicated.
12 A further MRI scan was conducted on 29 March 2017, with the radiologist reporting two days later. In the opinion of the radiologist, the appearances were nearly identical to those revealed by the previous MRI scan. There was a broad based disc bulge at L4-5 marginally contacting the descending L5 nerve with the lateral recess. There was minor contact with the descending left S1 nerve at L5-S1, but to a lesser degree. There was bilateral facet joint arthropathy at L3-4 and L4-5 and L5-S1.
13 The plaintiff was then reviewed by Mr Malham on 10 May 2017. The plaintiff was continuing to work part-time on light duties, but was concerned in relation to persisting low back pain, with the worst pain being in the left lower limb and radiating down to the posterior left calf. In the opinion of Mr Malham, there was no nerve root damage evident and the plaintiff could continue on her current work duties and hours. He thought that, with various restrictions placed upon her, there was a good prognosis for improving with sensible low impact exercise. His diagnosis was of L4-5 and L5-S1 symptomatic disc degeneration with low back pain and sitting intolerance. There were L4-5 and L5-S1 disc bulges contacting the left L5 and left S1 nerve roots with symptomatic left S1 radicular pain. He thought that the plaintiff had a good prognosis for continuing to work, with improvement in low back pain and lower limb pain with appropriate low impact exercise and avoidance of aggravating activities.
14 Mr Malham observed that it was now eight months since the injury and the plaintiff’s low back condition and predominantly left S1 radicular pain had continued. He discussed with the plaintiff the option of a left S1 nerve root injection. However, “understandably” the plaintiff declined this treatment by way of injection. He was of the view that there was only a low risk of further deterioration and that the plaintiff had a current capacity to undertake suitable alternative employment. This was a situation that should continue into the foreseeable future. He placed restrictions upon her activities.
15 Mr Malham reported for the third time on 20 August 2018, this report being directed to the plaintiff’s present solicitors. Accordingly, much of what had been stated in the earlier reports was repeated. On this occasion, Mr Malham stated that his diagnosis was of L5-S1 symptomatic disc degeneration with low back pain, sitting intolerance, and left greater than right S1 radicular lower limb pain. He recommended the avoidance of bending/twisting activities and thought that sitting should be minimised for meals only and for less than 30 minutes’ duration. He again suggested three to four walks per day. He referred to the possibility of exacerbations or aggravation of back and leg pain in the foreseeable future if his recommendations were not followed. He implicated the work injury in relation to her ongoing low back and left leg pain and expressed the opinion the plaintiff had the current capacity to continue working light duties on reduced hours. Of course, by the date of this report, and bearing in mind that Mr Malham had not seen the plaintiff since 10 May 2017, the plaintiff had in fact ceased work.
16 Returning to Dr Mann-Segal, he reported again to the plaintiff’s solicitors on 14 December 2017. This report contains some matters mentioned in the earlier report of 16 March 2017. Dr Mann-Segal also stated that, since the time of her referral to Mr Malham, the plaintiff had suffered “ongoing variable issues with left sided radicular pain and left sided facet joint dysfunction”. Dr Mann-Segal also referred to the fact that the plaintiff has consistently declined nerve root injections. His diagnosis remained one of facet joint dysfunction with left sided sciatica.
17 Dr Mann-Segal felt that the prognosis should be good in the long term, but also referred to the fact that injections may be required and the plaintiff has refused to undergo them. I would again point out that the treating specialist, Mr Malham, referred to the plaintiff’s declining to undergo a left S1 nerve root injection as being understandable. In any event, Dr Mann-Segal referred to the plaintiff’s medical condition as being not entirely stable and to it being unclear as to whether there would be long term deterioration.
18 In relation to any restrictions on the plaintiff’s activities, Dr Mann-Segal stated that there should be no bending, kneeling, squatting or vacuuming. He referred to work as being limited to four hours per day, with no lifting above 3.5 kilograms and alternate sitting or standing every 40 minutes. He repeated that the plaintiff’s future capacity for work depended upon her willingness to undertake therapy which is required, including injections. It seems apparent that his views upon her capacity depend, to a considerable extent, upon her willingness to undergo injections. However, I might say that I agree with the treating specialist that the plaintiff’s refusal to undergo such injections is understandable. Dr Mann-Segal also pointed out that the pain is variable. He stated that chronic pain is a distressing condition which, in the absence of injections, is likely to persist. He also raised the possibility of the obtaining an opinion by a rehabilitation specialist with an interest in chronic pain.
19 Dr David Kennedy, sports and industrial physician, saw the plaintiff at the request of the plaintiff’s solicitors and reported to them on 10 November 2017. At that time, the plaintiff was continuing on light duties for four hours per day, three days per week, was taking over-the-counter Voltaren and Panadol, and was having physiotherapy once per week. She described herself as “just coping” with the 12 hours of work per week. Every 30 minutes, she had to sit down and rest during her four hour shift.
20 Dr Kennedy expressed the opinion that the plaintiff had suffered an injury to her lumbar spine in the workplace incident and felt that there were no obvious discrepancies between the plaintiff’s current presentation and the clinical findings on examination. He did not feel that she would require surgical intervention, unless there was a significant deterioration in the damage to the L5-S1 intervertebral disc with more significant impingement on the left S1 nerve root. He placed various restrictions upon her activities. These relate to such matters as repetitive bending, twisting and turning under load or stress, manual handling activities of loads greater than 5 to 10 kilograms, restrictive pushing, pulling, lifting and the like, and standing, sitting or walking for more than about 30-45 minutes.
21 Dr Kennedy felt that these incapacities would continue for the foreseeable future. He also stated that the plaintiff could not cope with more than 12 hours work per week, and even then would need to rest every 30 minutes. He felt that her work restrictions were likely to persist for the foreseeable future and that she would have difficulty engaging in other occupational duties. In this latter regard, he referred to her limited command of English, her physical incapacities, her place of residence, her skills, training and work experience. He considered that these restrictions, along with restrictions in relation to her social, domestic and recreational activities, would continue for the foreseeable future.
22 Dr Kennedy saw the plaintiff again on 9 January 2019, reporting to the plaintiff’s solicitors on 17 January. He recorded that the plaintiff had ceased performing her modified occupational duties, up to 12 hours per week, early in her second pregnancy. She had not received any further treatment in 2018 and had ceased taking strong analgesic medication because of her pregnancy, taking only Panadol and Nurofen. She also stated to Dr Kennedy that all WorkCover payments had ceased and she could not pay for any further treatment. The plaintiff continued to have constant low back pain, particularly on the left side, with some pain radiating into the left buttock and down the left leg. She had restricted sitting and standing tolerances, along with problems bending, twisting and turning repetitively under load or stress. She had restrictions in relation to manual handling capacities and these affected such things as vacuuming, heavier cleaning, the making of beds and the like. She was suffering from considerable pain and restrictions in relation to looking after her new baby, although her mother had come from India to assist her.
23 Dr Kennedy felt that there were no obvious discrepancies between the plaintiff’s current symptom presentation and the clinical findings on examination. He thought that her lumbosacral spine remained in a stable condition, referring to a need for core stretching and strengthening exercises. He recorded again that the plaintiff had been working up to 12 hours a week whilst enduring some difficulties, and felt that she would have difficulty returning to her pre-injury occupational duties, even if these were to be performed on reduced hours. He placed a number of restrictions upon the plaintiff’s working capacity. He also felt that her poor command of English would create difficulties in finding more sedentary work that avoided excessive load or stress on the lumbar spine. Her restrictions in this regard, and in relation to her domestic, social and recreational activities, are likely to persist for the foreseeable future. He considered her prognosis to be guarded.
24 Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, has also seen the plaintiff at the request of her solicitors. His initial report is dated 5 January 2018. I might say that I did not find either this report, or Dr Aliashkevich’s second report of 7 December 2018, particularly easy to read (and certainly not the later report).
25 Further, as I stated from the Bench, I have some misgivings concerning medico-legal reports which include lists of suggested treatments. It is one thing for medico-legal examiners to refer to conditions or aspects of injury that may require comment from experts in a particular field. It is another to include a list of some 15 recommendations for treatment, ranging from psychological and/or psychiatric treatment through interventional pain strategies and multi-disciplinary pain management programs to rheumatologists, occupational therapy, myotherapy, nerve conduction tests and the like.
26 I appreciate that Dr Aliashkevich had been asked to comment upon treatment requirements, an enquiry which is perhaps more properly addressed to those who are or have been treating a patient. In any event, some question mark seems to hang over whether this sort of response from a medico-legal examiner, particularly one on behalf of the plaintiff, is entirely appropriate. Another feasible outcome is that a vast list of potential treatments has the possibility to open the door to arguments concerning stabilisation, permanence of consequences and the like. These are arguments that are perfectly valid in the appropriate situation, but the seeking or obtaining of a substantial list of potential treatments can lead to almost endless ongoing arguments concerning stabilisation and the like.
27 In any event, the diagnosis of Dr Aliashkevich is lengthy, and it includes chronic and refractory mechanical low back pain and left buttock/leg pain, along with a number of other observations, including suspected sacroiliac joint pain and Chronic Pain Syndrome. He placed restrictions upon the plaintiff’s work capacity, effectively concluding that she was likely to regain the ability to continue part-time light duties, working up to a maximum of 12 hours per week after any maternity leave had expired.
28 The defendant has also organised medico-legal examinations of the plaintiff. Dr Graeme Doig, orthopaedic surgeon, saw the plaintiff on 24 November 2016. At that time, the plaintiff was performing light duties three hours per day, four days per week. The diagnosis of Dr Doig was that the plaintiff suffers from a left-sided L5/S1 intervertebral disc injury with what appeared to be resolving radiculopathy in the left leg. He implicated employment. He considered that the plaintiff was not fit for her pre‑injury employment and that it was difficult to state with any accuracy when she may be able to upgrade to that. He also thought that she may have problems undertaking her activities of daily living and staying at work if her treatment was ceased. He was unsure when she would be able to upgrade to pre‑injury status.
29 Dr Doig saw the plaintiff again on 16 March 2017, reporting on 23 March. At this time, she had returned to work four hours per day, four days per week (a situation which did not persist). She now was able to forward flex only to mid-shin level and found it difficult walking on her left heel and toes. His diagnosis remained the same and he noted that the plaintiff still appeared to be suffering non-verifiable radicular symptoms. He considered her unfit for pre‑injury duties. He noted that an up-to-date MRI scan was to be performed. He again placed restrictions upon her employment capacity, stating that she may not be fit in the future for her pre‑injury status unless her condition improved.
30 Dr David Barton, consultant occupational physician, has also seen the plaintiff at the request of the defendant. Dr Barton could not find any objective evidence of radiculopathy. He thought that there were minor findings that suggested a degree of overlay. He thought that the plaintiff needed more appropriate reassurance and encouragement to manage her problem, referring to exercising and developing her core strength. She needed to be reassured and encouraged that working in suitable duties would not cause any injury. At the time, she was working 12 hours per week.
31 Dr Barton reported again on 15 September 2017, apparently without having seen the plaintiff again. His report makes reference to a surveillance report which was not included in the material placed in evidence. In any event, he accepted that the plaintiff may have developed a mild soft tissue injury in August 2016, but physically such a condition would be expected to have resolved. He did not believe that it created an incapacity for work. He could see no reason why she could not resume normal duties. Again without apparently seeing the plaintiff, in a brief letter of 4 October 2017, he advised the defendant that the plaintiff’s injury had now resolved, that there was no ongoing incapacity and that she did not need any treatment. Exactly how or why Dr Barton could move from a position of stating that the plaintiff’s condition would be expected to have resolved to stating that it had now resolved, and without seeing her again, is not clear.
32 Mr Michael Dooley, orthopaedic surgeon, has also seen the plaintiff at the request of the defendant. He examined on 20 November 2018, reporting on 12 December. Mr Dooley diagnosed a soft tissue injury to the lumbar spine, which most likely had involved some aggravation of underlying degenerative disc disease. He felt that there were no objective signs of neurological deficit affecting the lower limbs and that there were inconsistent signs in relation to straight leg raising on the left. He thought that the constancy and intensity of her ongoing pain and her described disability were greater than one would expect to see, given her organic condition. He thought that there might have been a psychological reaction of some significance. He was not in favour of surgery, but thought that the plaintiff needed to modify her activities in relation to bending, lifting and the like. He was of the view that it was probable that she had a very small left-sided lumbosacral disc prolapse, which should improve with time. Whilst she had an underlying naturally occurring degenerative disc disease prior to the accident, he specifically commented that, to his knowledge, she was not symptomatic from such condition prior to the episode. He believed that the plaintiff had a physical capacity to carry out light work and clerical duties, but would not be able to carry out regular heavy physical work or work that involved a lot of bending, lifting, manoeuvring and the like. Essentially he did not consider that her condition would deteriorate over and above the nature evolution of the underlying degenerative disc disease.
33 On 18 January 2019, Mr Dooley provided to the defendant a brief letter in relation to a Vocational Assessment Report of 7 December 2018. He had not seen her again. He believed that the plaintiff would have the physical capacity to work as a receptionist, but her ability to work as a picker/packer and product assembler would depend upon the amount of lifting and manoeuvring involved. He believed that a return to suitable work would need to be on a graduated basis, but ultimately was of the opinion that the plaintiff has a physical capacity to increase her working hours towards full-time.
34 I accept the diagnosis of Dr Gehr, orthopaedic surgeon, that the plaintiff suffers from discogenic low back pain with left sciatica. This is consistent with the opinion of the treating orthopaedic surgeon, Mr Malham, who has diagnosed L5/S1 symptomatic disc degeneration with low back pain and with left greater than right S1 radicular lower limb pain. It is not inconsistent with the diagnosis of Dr Mann-Segal, the treating general practitioner, of facet joint dysfunction with left-sided sciatica or with the diagnosis of Dr Aliashkevich of chronic and refractory mechanical low back pain and left-sided buttock/leg pain. It is largely in accordance with the diagnosis of Dr Doig, examining on behalf of the defendant, of an L5/S1 intervertebral disc injury with initial radiculopathy in the left leg. I do not accept the proposition advanced by Dr Barton that the plaintiff may have developed a mild soft tissue injury which has resolved. That seems to be a “one off” proposition. Mr Dooley, also examining for the defendant, has diagnosed a small non-compressive lumbar disc prolapse. In any event, I prefer the opinion of the treating orthopaedic surgeon, Mr Malham, and those of Dr Gehr and Dr Doig, which seem to be in accord with it and to summarise it neatly.
35 Whilst the degenerative condition of the plaintiff’s lumbar spine may have been in existence as at the date of the accident, I accept that it had not been symptomatic. It is not suggested that she suffered from low back symptoms prior to the accident. Accordingly, the symptoms from which she has suffered since the accident are consequences which arise from it.
36 Mr Dooley has referred to a psychological reaction. Of course, pursuant to s325(2)(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. Accordingly, in the present application, they shall not be. However, if such consequences do exist, I am not satisfied that they are of any great magnitude. Those who have treated her make little, if any, reference to such consequences.
37 I am also satisfied that the consequences are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Gehr, orthopaedic surgeon, has referred to the plaintiff’s condition as having stabilised. He also stated that the prognosis generally is guarded and “since present since 2016 unlikely to improve significantly”. Further, he noted that the plaintiff had already been under the care of a neurosurgeon and he did not see any reason for her to see another specialist.
38 Dr Kennedy, sports and industrial physician, has described the plaintiff’s prognosis as being guarded. In his more recent report of 17 January 2019, Dr Kennedy has stated that the plaintiff has significant and ongoing problems involving her lumbar spine, which problems are work related and that there are restrictions which affect both her occupational capacities and capabilities on the open labour market and also a number of domestic, social and recreational activities. He went on to state that these restrictions are likely to persist for the foreseeable future.
39 Dr Aliashkevich, neurosurgeon and spinal surgeon, has described the plaintiff’s prognosis as being very guarded and with a number of prognostic “red flags” and predictors of unfavourable long term outcome. Particularly in relation to work capacity, Dr Aliashkevich has stated that, given her failure to improve on conservative treatment, her incapacity for pre‑injury duties is likely to last for the foreseeable future. He has repeated that her reduced capacity is likely to persist for the foreseeable future. In other words, in relation to permanence he has specifically directed his attention to one of the key issues in this case, namely her capacity for employment. He has stated that the plaintiff is likely to regain ability to continue part-time light duties, working up to a maximum of 12 hours per week (after the expiration of her maternity leave) and specifically opined that her reduced capacity is likely to persist for the foreseeable future.
40 In his closing address, Mr Kumar advanced an argument that was at least partially related to the issue of permanence and which concerned the possibility or desirability of the plaintiff undergoing further treatment. This, arguably, could include such things as a pain management program. Whilst this was a well presented argument, I am not persuaded by it. Dr Gehr, an orthopaedic surgeon, specifically stated that he saw no reason why the plaintiff should see a specialist other than the neurosurgeon (Mr Malham) who has treated her. Whilst Dr Kennedy, in his report of 17 January 2019, stated that the plaintiff may benefit from a referral to a pain management specialist, he also stated that she had significant and ongoing problems involving her lumbar spine; that she had restrictions which were affecting not only her occupational capacities and capability on the open labour market, but also a number of domestic, social and recreational activities; and that these restrictions are likely to persist for the foreseeable future. That restrictions are likely to persist for the foreseeable future is also stated by him in his earlier report of 17 January 2018. Whilst Dr Aliashkevich referred to all sorts of possible treatments, he stated in his more recent report of 7 December 2018 that the plaintiff’s symptoms were longstanding and of unchanged character and that he considered her medical condition to be stable. Specifically in relation to employment, he expressed the opinion that the plaintiff’s reduced employment capacity was likely to persist for the foreseeable future. It is also interesting that the defendant has ceased paying for any ongoing medical treatment, possibly relying upon the report of Dr Barton that, effectively, all the plaintiff needs is appropriate reassurance and mild analgesics.
41 In any event, I am of the view that the ingredients of the requirement of permanence have been established and particularly in relation to work capacity.
(e)Other developments since the injury
42 After apparently sporadically missing some time from work, the plaintiff returned on restricted duties and hours. As she has sworn, she has never returned to her pre‑injury duties or hours since 31 August 2016, being the day of the accident. Initially she worked two hours per day, three days per week and with what could be described as the usual restrictions on her activities in relation to bending, kneeling, squatting, lifting and the like. Eventually she increased her working hours to three hours a day and then four hours per day, three days a week. In approximately March 2017, she increased her hours of work to 16 per week, being four hours per day for four days per week. This amount of work did not last particularly long and she has sworn that this was because of her injury. In approximately May 2017, she dropped back to working a total of 12 hours per week and with restrictions in relation to bending, kneeling, squatting, vacuuming, and lifting more than 3.5 kilograms. She also took regular breaks every 40 minutes in order to rest or lie down and alternated between sitting and standing.
43 In the later part of 2017, the plaintiff became pregnant. In addition, the family moved from their previous residence in Glen Huntly to Melton South. This made her trip to work more difficult and it also created problems in relation to her seeing Dr Mann-Segal. Her recollection is that she saw him perhaps three or four times since the move – see T22. Her move also has the potential to raise difficulties concerning the alleged suitable light employments suggested by Recovre.
44 The plaintiff also had another child. It would appear that her son was born in approximately August 2018. The plaintiff’s mother has come from India to assist in child minding. In relation to general or family medical care, the plaintiff attended the Bakery Square Medical Centre in the Melton region, but is not seeing anyone at that clinic in respect of her back complaint. Apparently the defendant ceased paying for her medical treatment in late 2017.
Ruling
(a)Loss of earning capacity
45 I am satisfied that the plaintiff has discharged the burden of proof in this regard. I am satisfied that her loss of earning capacity is sufficient to meet the requirements of s325(2)(e) and (f) of the Act. I am also satisfied that the requirements of s325(2)(g) do not result in her claim being defeated.
46 I would add that, in applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi Semi [1998] 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
47 This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. As earlier stated, I do not doubt or question the plaintiff’s credibility. I accept her oral evidence and what she has sworn in her affidavits.
48 In relation to the plaintiff’s earning capacity during the period of three years before and after the injury (see s325(2)(f)(ii)) – her “without injury” earnings – I make the following findings. She was engaged in employment with two entities. One of these is Epworth, with whom she commenced work on approximately 18 May 2015. The other is Ality. With Epworth, her standard number of working hours was 22.8 per week. However, she also worked regular overtime, and this could result in work for up to 76 hours per fortnight – see paragraph 12 of her first affidavit. Her gross income for the year ending 30 June 2016 would appear to have been $41,817 and for the financial year ending 30 June 2017, $33,556. It is to be remembered that the plaintiff commenced work with Epworth on approximately 18 May 2015 and that the injury occurred on 31 August 2016. On balance, it seems to me that the gross earnings for the financial year ending 30 June 2016 are those that most fairly represent the basis for calculation of the plaintiff’s earning capacity had she not been injured. There was no challenge to the proposition that the plaintiff’s wages would have increased by 5.76 per cent if she were still employed as previously. After omitting such things as allowances and gross interest, by my calculations the result would be a figure of $43,559. Mr Kuma seemed to arrive at the same figure, also pointing out that this is not a case which is going to turn on some precision as to the “without injury” earnings – see T69 – 63. In any event, I find the figure for “without injury” earnings to be $43,559.
49 Turning to “after injury” earnings, I am satisfied that 12 hours per week represents the maximum number of hours that the plaintiff could work as a settled or established member of the wage-earning workforce. In her second affidavit, the plaintiff has sworn that she does not believe that she would be reliably able to work more than 12 hours per week. She had attempted 16 hours per week, but as she has sworn, this did not last long because of her injury. She was only able to manage 12 hours per week, and that was with significant restrictions and the like in place. Accordingly, she has sworn that she would struggle to work more than 12 hours per week on a reliable and consistent basis.
50 When Dr David Kennedy saw the plaintiff on 1 November 2017, she was still working 12 hours per week and was barely coping. He recorded that she cannot cope with more than 12 hours per week and, even then, has to rest every 30 minutes because of aggravation of back and leg pain. He thought that this situation of a maximum of 12 hours’ work per week was likely to persist for the foreseeable future, as were the restrictions which were limiting her capacity. His views do not seem to have changed after seeing her again on 9 January 2019. He placed a considerable number of restrictions on any proposed work duties and referred to her as having significant and ongoing problems affecting her occupational capacities and capabilities.
51 In his more recent report, Dr Aliashkevich took into account a number of factors and expressed the view that the plaintiff was likely to regain her ability to continue part-time light duties, working up to a maximum of 12 hours per week and that this was likely to persist for the foreseeable future. In his report of 20 August 2018, Mr Malham, the treating neurosurgeon, stated the opinion that, when he last saw the plaintiff (10 May 2017), the plaintiff was continuing to work part-time on light duties and, in his view, could continue such work. Dr Gehr considered that the plaintiff’s condition had stabilised and that she was limited in terms of employment, a situation which he did not expect to improve significantly. She was not able to perform pre‑injury duties and this was most likely a permanent situation.
52 I appreciate that Dr Barton, examining on behalf of the defendant, could see no reason why the plaintiff could not increase her hours and duties to full-time work. Mr Dooley, similarly examining, felt that the plaintiff had a capacity to carry out light physical work and clerical duties, but would not be able to carry out regular heavy physical work or work that involved a lot of bending, lifting, manoeuvring and the like. If she returned to suitable work on a graduated basis, his belief was that ultimately she had a physical capacity to increase her working hours towards full-time. Dr Doig, also examining on behalf of the defendant, but in excess of two years ago, placed quite a number of restrictions upon any work activities, also emphasising the need for breaks, and stated that he was unsure whether she would be able to upgrade to pre‑injury status in the future.
53 On balance, I prefer the opinions of the doctors other than Dr Barton and Mr Dooley and to whom I have referred above. As stated, I regard the plaintiff as a witness of truth. Further, I have had regard to the nature of her pre‑injury employment, her skills and work experience and her place of residence. I also accept that she has limited English skills. These factors seem to me to underline the proposition that she is restricted to very light duties, with breaks, and performed on a maximum of 12 hours per week. I would refer to the decision of the Court of Appeal in Richter v Driscoll [2016] VSCA 142 and similar cases.
54 I appreciate that the plaintiff said in cross-examination that she could try for various jobs suggested in the Recovre report obtained by the defendant and dated 7 December 2018. However, she continued to point out that she could not stand for more than half an hour, could only handle up to 3 kilograms, and the like. I would refer, for example, to T43 and following pages. I am not of the opinion that any of the Recovre positions suggested (including that of a receptionist, which involves computer skills which the plaintiff does not possess and which might also present a language difficulty) represent suitable work for the plaintiff. As stated, in my opinion 12 hours’ work per week represents her maximum capacity.
55 Of course, the rate of pay for such work then becomes an issue. I have found that the plaintiff’s “without injury” earnings should be fixed at $43,559. For the financial year ending 30 June 2016, her relevant weekly earnings would be $792.06. Leaving to one side her work with Ality, her claim form in relation to Epworth indicates that her standard working hours were 22.8 per week. Even without the additional hours which she might have worked, a drop to 12 hours per week would represent a decrease of almost 47 per cent. Obviously if the work at Ality and the additional work performed by the plaintiff for Epworth are taken into account, the percentage decrease involved in a drop to 12 hours’ work per week would be considerably greater.
56 I appreciate that the relevant test is based not upon hours worked, but upon earnings. The average hourly gross rate of pay for a comparable employee at Epworth is $22.95. Of the three positions recommended by Recovre, a despatch packer earns $21.50 gross per hour, a product assembler $27 and a part-time receptionist (working 15 hours per week) $30.12 per hour. If one took the highest of these, namely $30.12 per hour, this would convert to $361.44 per week for a 12 hour week or $18,795 per annum. The plaintiff’s “without injury” gross earnings, expressed as an annual rate, was $43,559. This represents a drop in gross annual income of just under 57 per cent. If the plaintiff was capable of working the 15 hours per week as a receptionist in the job identified by Recovre, the drop in income would still exceed 46 per cent. Of course, in my opinion work as a receptionist does not represent suitable employment for the plaintiff and she is not capable of working for more than 12 hours per week.
57 The bottom line is that, no matter how it is viewed, the plaintiff has discharged the burden of proof which she bears and has established that she will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
(b)Pain and suffering
58 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court.
59 In any event, the obvious impact upon the plaintiff’s everyday life emanating from her back injury are sufficient to satisfy the statutory requirements. The consequences could be fairly described as being more than significant or marked as being at least very considerable. I would refer to the affidavits of the plaintiff. The consequences of her back injury have had a very substantial adverse impact upon her wellbeing and her day to day activities.
Conclusion
60 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
61 I shall hear the parties as to any ancillary orders that are required.
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