Barbera v Living Legends
[2023] VCC 1929
•31 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02480
| CARA BARBERA | Plaintiff |
| v | |
| LIVING LEGENDS – THE INTERNATIONAL HOME OF REST FOR CHAMPION HORSES | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 & 31 July 2023 | |
DATE OF JUDGMENT: | 31 October 2023 | |
CASE MAY BE CITED AS: | Barbera v Living Legends | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1929 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right lower limb – aggravation injury to the cervical spine – pain and suffering and loss of earning consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Lexa v Transport Accident Commission [2019] VSCA 123; Philmac Pty Ltd v Asti (1980) 26 SASR 213; Richter v Driscoll [2016] VSCA 142; State of Victoria v Rattray [2006] VSCA 145
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages. The application for leave to commence proceedings for loss of earnings is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr P Haddad | Shine Lawyers |
| For the Defendant | Ms S Manova | Hall & Wilcox |
HER HONOUR:
Introduction
1Ms Cara Barbera, the plaintiff, is a 33-year-old former horse supervisor.
2The plaintiff started working for the defendant on 16 August 2016, on a full-time basis. She suffered injuries in an incident at work on 1 February 2017 (“the incident”) when she was twenty-six years of age.
3The plaintiff seeks the leave of the Court to bring a common law proceeding for both pain and suffering and loss of earning capacity damages. She claims that she has suffered a “serious injury” to her right lower limb and/or her cervical spine.
4There was no issue that the plaintiff suffered a compensable injury to her right knee in the incident.
5The following issues were identified by the defendant:
(a) Did the plaintiff suffer an aggravation injury to her cervical spine in the incident?
(b) Did the plaintiff suffer a right ankle injury in the incident?
(c) Did the plaintiff suffer a consequential right ankle injury by reason of her right knee condition?
(d) Did the plaintiff suffer a consequential right hip injury by reason of her right knee condition?
(e) The plaintiff’s capacity for suitable employment;
(f) Whether the impairment consequences of the relevant body function satisfy the “serious injury” threshold.
6The legal principles are well known and were not in issue.
7For the reasons that follow, I find that the plaintiff has satisfied her onus to establish that the permanent impairment consequences to her of her right lower limb injury can fairly be described as being more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
8I find that the plaintiff has not satisfied her onus to establish that she has, and will continue permanently to have, a loss of earning capacity of 40 per cent or more, measured as set out in s325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), as a result of either the impairment consequences of the right lower limb injury or the aggravation injury to her cervical spine.
Background
9The matters that follow are, I believe, uncontested. In so far as any part is contested, these represent my findings save where otherwise indicated.
10The plaintiff completed Year 11. After leaving school she worked as a checkout operator in a supermarket between 2007 and 2008. Thereafter the plaintiff worked for several different employers as a stable hand, receptionist, and veterinary nurse.
11On 26 November 2008, the plaintiff was involved in a transport accident (“the transport accident”). The plaintiff suffered injuries to her cervical and lumbar spine in the transport accident.
12In 2011, the plaintiff ceased work due to the injuries she suffered in the transport accident.
13On 10 May 2013, she underwent a C1/2 posterior fusion performed by Mr John Cunningham, orthopaedic surgeon (“the fusion surgery”).
14The plaintiff underwent an L4/5 discectomy in about 2014, also performed by Mr Cunningham (“the lumbar surgery”).
15Following the transport accident and the surgery to the plaintiff’s cervical spine, she had a restricted range of motion of her neck. In addition, the plaintiff experienced what she described as “occasional” headaches, although she said they occurred approximately once or twice a week, with a pain level of four to five out of ten. The plaintiff was regularly prescribed Mersyndol Forte to control those symptoms, which she took once or twice a week.
16The plaintiff said that her lower back was “very good” following her L4/5 discectomy and prior to the incident.
17In late 2014, following the lumbar surgery, the plaintiff recommenced work as a veterinary nurse, on a full-time basis.
18In August 2016, the plaintiff began working for the defendant. The defendant operated a “retirement” facility for racehorses in Greenvale.
19The plaintiff worked full-time for the defendant as a horse supervisor. This involved conducting tours of the defendant’s property for the public as well as general stable-hand duties.
20In the incident, the plaintiff was attempting to clip a horse’s whiskers when the horse reared and leaped forward. The plaintiff believed she was struck to the top of her head by one of the horse’s hooves. She twisted to her right and fell to the ground.
21The plaintiff believes she suffered a very brief loss of consciousness in the incident.
22Following the incident, the plaintiff attended the emergency department at the Northern Hospital. She presented with a laceration to her scalp and a swollen and painful right knee.[1] An X-ray of the right knee revealed no fractures.
[1]Further Supplementary Plaintiff’s Court Book (“PCB”) 348
23The following day the plaintiff attended upon a general practitioner (“GP”), Dr Clare Lax, at the Craigieburn Medical Centre. The GP’s clinical notes record that the plaintiff reported that in in the incident “[a] hoof came down on top of her head, she fell and ? twisted R knee / horse stomped on R lower limb”. The clinical record noted that the plaintiff complained of increased swelling to her right knee, and mild nausea. The plaintiff reportedly told Dr Lax that she experienced knee pain which made it difficult to sleep despite taking Endone. She had difficulty weight bearing. Dr Lax prescribed Mersyndol Forte, Targin and Endone, and ordered imaging of the plaintiff’s right knee.[2]
[2]PCB 353
24An ultrasound of the plaintiff’s right knee performed on 7 February 2017 was reported to show a moderate joint effusion.
25An MRI scan performed the same day was reported to show a rupture of the right anterior cruciate ligament (“ACL”), a minimally displaced fracture of the posterior tibial plateau, a mild sprain of the medial meniscus, and subtle fraying at the free margin of the lateral meniscus.
26On 8 February 2017, Dr Lax referred the plaintiff to Mr John Owen, orthopaedic surgeon.
27On 7 March 2017, the plaintiff attended her usual GP, Dr Jim Psycharis, at the Craigieburn Medical Centre. The plaintiff reported that since the incident she had been waking with headaches or migraines. Dr Psycharis ordered a CT brain scan to exclude intracranial injuries.
28On 8 March 2017, a CT brain scan was undertaken and was reported to be normal.
29On 10 March 2017, the plaintiff attended Dr Psycharis. She reported that her headaches were persisting. Dr Psycharis ordered an X-ray of the plaintiff’s cervical spine to ensure the internal fixation from the fusion surgery in 2013 was unaffected. This was undertaken the same day and it was reported as follows:
“Internal fixation in situ in adequate position, with no periprosthetic fracture or loosening. No fracture or other acute abnormality elsewhere.”[3]
[3]PCB 57
30On 17 March 2017, Mr Owen performed an ACL reconstruction. He retired from practice shortly after this time, and the plaintiff was subsequently followed up by Mr Grant Pang, orthopaedic surgeon.
31Following her ACL reconstruction surgery, the plaintiff developed arthrofibrosis to her right knee which required intensive physiotherapy.
32On 1 August 2017, the plaintiff attended Dr Psycharis and reported that she had been experiencing headaches and right-sided neck pain since the incident. Dr Psycharis referred the plaintiff back to Mr Cunningham for assessment.
33Mr Cunningham reviewed the plaintiff on 8 September 2017. He ordered a CT scan of the plaintiff’s cervical spine.
34Upon further review on 22 September 2017, Mr Cunningham reported as follows:
“I saw Cara today following her CT scan. Her CT shows that the fusion is perhaps not yet completely solid.
At this point in time this would be a pseudarthrosis. While there is no gross instability I can still see some mild horizontal lines across the bone graft mass. Interestingly there may be only consolidation across the joint.
I think that given she is still complaining of right sided neck pain a bone scan would be useful.”[4]
[4]PCB 347
35According to Dr Psycharis, a bone scan undertaken in late 2017 did not reveal any evidence of active osseous pathology in the plaintiff’s cervical spine, and Mr Cunningham advised that he did not feel the fusion was causing any problems.[5]
[5]PCB 84
36On 3 November 2017, Dr Psycharis referred the plaintiff to Dr Grant Scott, neurologist, to obtain an opinion regarding the plaintiff’s headaches.
37In February 2018, the plaintiff was seen by Dr Scott. He commenced the plaintiff on Topamax for her headaches.
38In about August 2018, approximately 18 months after the incident, the plaintiff returned to work performing modified duties in the defendant’s café, working reduced hours. Initially the plaintiff worked between eight and nine hours per week,[6] but her hours increased so that at times she worked 25 hours a week. This work included eight-hour shifts at the weekends and half days during the week.
[6] PCB 20
39On 23 October 2018, the plaintiff advised Dr Psycharis that she had experienced several weeks of pain in her left hip and groin.
40On 25 October 2018, an ultrasound and X-ray of the plaintiff’s left hip was reported to reveal trochanteric bursitis and a reducible left indirect inguinal hernia. The plaintiff was referred for an ultrasound-guided cortisone injection to the left trochanteric bursa. This was performed on 7 November 2018. The plaintiff reported some improvement following the injection.
41On 21 December 2018, Dr Psycharis referred the plaintiff to Mr Peter Gard, orthopaedic surgeon, as she was continuing to experience right knee pain.
42The plaintiff first saw Mr Gard in January 2019. She reported anterior knee pain and a sense of instability. On examination, Mr Gard stated:
“… I found overall that the knee had fairly reasonable stability in keeping with a knee that has previously been injured but had been stabilized by ACL reconstructive surgery (a minor Lachman positive test and a good end point).”[7]
[7]PCB 141
43On 12 March 2019, Mr Gard administered a localized Depo Medrol injection in the tender area of the plaintiff’s right knee anteriorly, with no modification of symptoms. Mr Gard did not think there was any other treatment he could offer the plaintiff for her right knee problem. He appears to have discharged the plaintiff from his care at this point.
44During this time, the plaintiff was continuing to work for the defendant on modified duties and reduced hours.
45On 22 May 2019, the plaintiff reported to Dr Psycharis that she was experiencing increasing pain in her right hip. An ultrasound of the right hip performed on 4 June 2019 was reported to reveal a thickened trochanteric bursa. Appearances were described as “equivocal for trochanteric bursitis.”[8]
[8]PCB 61
46On 24 September 2019, the plaintiff reported to Dr Psycharis that she had been experiencing persistent pain and swelling of her right ankle.
47An X-ray and ultrasound of the plaintiff’s right ankle performed on 1 October 2019 were reported to reveal a tiny amount of fluid on the lateral aspect of the ankle.
48In about September 2019, the plaintiff left the defendant’s employ and found alternative casual employment as a cleaner and cabin linen stripper at the Big4 Caravan Park in Seymour. She worked variable hours (from five to about 20 hours each week). This employment ended in about March 2020 due to the COVID‑19 pandemic.
49The plaintiff has not worked in any capacity since March 2020.
50On 20 March 2020, a localised bone scan was performed on the plaintiff’s right ankle. The clinical notes for that scan recorded the plaintiff was suffering from persistent pain in her right knee and pain and swelling in her right ankle. The reported conclusions were:
“1. The findings suggest an arthropathy in the right posterior subtalar joint most likely degenerative.
2. Active osseous pathology in the left lateral talar body raising the possibility of stress injury.
3. Mild to moderate degenerative change in the medial compartment of the right knee.”[9]
[9]PCB 77
51On 18 April 2020, the plaintiff suffered a fall at home because, she said, her right knee gave way. For the purposes of this application only, the defendant accepted that fall as being consequential to the plaintiff’s compensable right knee injury.
52An MRI scan of the plaintiff’s right knee on 21 April 2020 was reported to reveal:
“Large comminuted fracture seen involving the tibial plateau with particular extension into the anterior and posterior cortex of tibia. Large amount of marrow oedema is seen around the fracture line and involving the lateral tibial and femoral condyle.
There is also cortical depression seen in the lateral femoral condyle possibly a depressed fracture with subcortical marrow oedema.
Large lipohaemarthrosis is seen.
Partial tear of ACL graft is noted.
There is grade 2 tear of popliteus muscle.
There is fluid collection seen in superficial soft tissue in the prepatellar and superficial infrapatellar region as well as superficial to the patellofemoral ligament and patellar retinaculum.”[10]
[10]PCB 65
53Following this fall, the plaintiff re‑presented to Mr Gard. He recommended the plaintiff wear a hinged knee brace, with protected weight-bearing beyond eight weeks, to allow the tibial plateau fracture to heal in situ.
54Shortly thereafter, the plaintiff developed swelling in her right lower limb from foot to groin. Several Doppler ultrasounds indicated some venous insufficiency, for which the plaintiff was referred to a vascular surgeon. No report was tendered from such surgeon, but Mr Gard reported that the surgeon did not feel any surgical intervention would be helpful.
55The plaintiff became pregnant during late 2020, and her son was born in June 2021.
56On 21 March 2022, an MRI scan of the plaintiff’s right knee was reported to reveal that the ACL graft fibres were attenuated but that there was some fibre continuity within the intercondylar notch.
57The plaintiff consulted Mr Pang (whom she had last seen in 2018) again on 4 April 2022 regarding her right knee. He recommended a revision ACL reconstruction. Mr Pang advised the plaintiff that it was a risky and complicated procedure that would require a long period of rehabilitation.[11] The plaintiff declined further surgery in circumstances where Mr Pang was unable to guarantee it would be successful.
[11] PCB 41
58In March 2023, the plaintiff consulted Associate Professor Harvinder Bedi, orthopaedic surgeon, in relation to her right ankle difficulties. Associate Professor Bedi recommended the plaintiff have a steroid injection to her right ankle, and recommended the plaintiff undergo physiotherapy. The plaintiff has not had the injection as she has said she is worried that it will be painful. She said that she has not resumed physiotherapy treatment as it will not be funded by WorkCover. Associate Professor Bedi further reviewed the plaintiff on 6 July 2023.
59The plaintiff currently lives with her parents-in-law, together with her partner and their two-year-old son. This is a temporary arrangement whilst the plaintiff and her partner have a new home built on a nearby property in Heathcote.
The plaintiff’s claimed impairment consequences
Right lower limb
60In her first affidavit, sworn on 15 February 2021, the plaintiff identified the following impairment consequences of her right lower limb injury:
“37.I continue to see my GP, Dr Jim Psycharis at Craigieburn Medical Centre every month. I take Panadeine Forte to manage my pain. I take it when I am really sore, which is about 3 times a week. I try only to take 1 tablet a day. I still occasionally wear a Velcro knee brace to give my knee support. My knee pain is actually worse when I don’t use my leg.
...
39. When I do the household chores I wear my knee brace. I still manage to do the vacuuming and most of the cleaning. I have bought a hand-held Dyson vacuum cleaner because I couldn’t drag my old vacuum around. I still can’t really bend my right knee or kneel on the floor to clean under tables, or under the refrigerator. I also have the same issues with getting into awkward positions to clean the toilet and shower. My partner helps me with this. I wash the clothes in the washing machine, but I don’t hang them out on the clothes line due to my neck issues. I usually put them in the clothes dryer.
40. My hobbies and recreational activities have been significantly affected by my injuries. I used to go horse riding regularly with friends. I have always loved horse riding and I own 4 horses, myself. But, now I can’t ride them as it aggravates my right knee. I was able to ride my quieter horses after I had had neck surgery. But now, it is not possible to ride at all. I have a neighbour who brings hay for my horses. I find feeding the horses very hard because of the slope of the paddocks. I can’t stand and walk on sloping or uneven ground for more than a short period of time. When my horses require hard feed, my partner takes it to them. I also have a number of friends who come over and help out with the property. I live on a 6-acre property with my partner. He now does all the lawn mowing. I can no longer do any handyperson work around the house and property. This frustrates me as I loved doing manual work on the property.
...
42. I am still able to drive an automatic car. I can sit for an hour when driving. After this my right knee starts to ache. If standing for 45 minutes I get an ache in my right knee. So I try to keep moving. But, I always have some level of ache in my right knee. When I sleep, I rest my right knee on top of a pillow.
43. Last year I had right ankle x-ray as my right ankle was swelling when I walked. I attended Mr Peter Gard, orthopaedic surgeon, in relation to the injury. I put ice on my ankle when it swells up.
44. My partner’s parents own a motor boat and Jet Ski and during the summer holidays, my partner and I used visit his parents and go out on the boat and Jet Ski. I had to be careful because of my previous neck injury. But, I was still able to enjoy my time on the water. I am unable to ride the Jet Ski now or go out in the boat as the instability of being on water flares up my right knee and ankle pain.”
61In her second affidavit, sworn on 17 January 2022, the plaintiff deposed to the following impairment consequences:
“17.I have constant aching pain in my right knee. My ache becomes sharper when I have to stand for a long period of time. I will then take a Nurofen Plus to help control my pain. I get swelling at the bottom on my right kneecap and in my right ankle. The swelling comes on at least a couple of times a week, especially when I have to do things like walking to the shops to get baby formula or housework. I also get a clicking sensation in my right knee joint. My right knee joint feels unstable, and I continue to be unsteady on my right leg. I can only squat down halfway and I cannot kneel on my right knee. I can have difficulty walking up and down steep stairs. But, I can manage small stairways okay. If I walk up or down a set of steep steps I step with my left leg first onto each step, as my left leg gives me a more solid base. When walking on uneven ground I have to watch where I am walking and take little steps. I take it slowly and do not rush.
18. I have difficulty picking Cobie up off the floor. It is especially hard to lift him onto the change table. I also have difficulty lifting him into his highchair at mealtimes. I struggle to bend my right leg when I bend down to pick Cobie up and I feel very unsteady if I try to put my weight on my right leg when I am lifting him. I also have some pain in my back as well. I have to sit on the couch to play with Cobie, as I cannot get down onto the floor on all fours Cobie plays on the floor nearby. I am concerned that I will have even greater difficulties as he grows bigger and that I will miss out on enjoying lots of activities with him.
19. I can drive for an hour before my right leg gets very sore. After this my right knee starts to ache much more. I also have difficulty getting my right leg in and out of the car. If standing for 30 to 45 minutes, I also get an ache in my right knee. So I try to keep moving. But I always have some level of pain in my right knee.
20. I can sit for an hour before I have to get up and move about. If I don’t do this my right leg stiffens up and the ache becomes more pronounced. But sitting for lengthy periods also causes my neck and back to seize up also. I struggle to sit at a desk and use a computer for more than 30 minutes as this cause my neck, back and right leg to stiffen and ache.
21. Further to paragraph 39 of my previous affidavit, when I do the household chores, I wear my knee brace. I still manage to do the vacuuming and some of the cleaning of the toilet and bathroom in between my mother-in-law coming over once a week to do a big clean for me. She does the vacuuming, cleans the bathroom and toilet and mopping of the floors and she tidies up Cobie’s toys. She also does the dusting and much of the clothes washing too. If I have to kneel on my left knee, I can only do it if I also put out my right leg straight out. My mother comes over occasionally to help me with Cobie.
22. I can manage doing a small shop for groceries, but I can only do a full week’s shop if my mother-in-law comes with me because I cannot push a full trolley load, due to my right knee injury.
23. Further to paragraph 40 of my previous affidavit, my hobbies and recreational activities continue to be significantly affected by my injuries in much the same way. I am still unable to ride my horses. My neighbour delivers hay for my horses and feeds them. I have already sold 1 of my horses and I am in the process of selling another horse. Then, I will only have 2 left. I am debating whether to keep the other 2 horses or not, as I cannot ride them.
24. Further to paragraph 44 of my previous affidavit, I am still unable to ride the Jet Ski now or go out in the boat as the instability of being on water flares up my right knee and ankle pain.”
62The day after swearing her second affidavit, the plaintiff swore a third affidavit. In that affidavit the plaintiff deposed to receiving income protection benefits in the 2020/2021 financial year and for lost income for the previous three years. The plaintiff stated that she continued to attend her GP Dr Psycharis for treatment and care. She deposed that she took Nurofen Plus to manage her pain.
63The plaintiff further outlined in her fourth affidavit the impairment consequences of her right knee condition as at 24 November 2022, being:
“26.I continue to suffer from the consequences deposed to in my previous affidavits, in particular as stated at paragraphs 17 to 28 of my Second Affidavit.
27. In addition, I say that:
(a)I have not worked since the time of my Second Affidavit due to my right knee pain and dysfunction.
(b)I can sit for around 30 to 45 minutes before my right knee becomes painful and I have to move. After that, my tolerance for sitting reduces significantly and I tend to take medication to help me.
(c)As a result of my knee injury, I am unable to ride my horses anymore. I don’t think I am capable of even light riding, such as sitting on a calm horse while it walks.
(d)I tried to ride one of my horses recently. A friend came over and helped me set up the horse and climb onto the horse. I didn’t spend long on it before it became obvious that I couldn’t do it. My knee was painful when I exerted pressure on it. My knee also felt unstable, and I felt like I was going to fall off.
(e)My knee injury prevents me from being able to tend to my horses. I refer to paragraph 23 of my Second Affidavit and say that the sale of my horse fell through, and I continue to own both horses. The horses just stand around the paddock which makes me incredibly upset. My neighbour still helps me care for them.
(f)I have had a lot of difficulty playing and interacting with Cobie due to my knee pain. Since Cobie has started walking, I have had a lot of difficulty keeping up with him and lifting him due to my knee pain. I always envisaged being an active mother, but I am not because of my knee injury.
(g)I want to be able to play sports with Cobie in the future. I played basketball when I was younger and did bike riding. My knee prevents me from those activities, and it makes me sad that I won’t be able to do those things with him when he grows.
(h)I would also love to go horse riding with him and to show him how to care for horses, but that is something that I am now going to miss out on due to my knee injury. It’s hard for me to deal with that.”
64The plaintiff swore a fifth affidavit on 22 June 2023. In that affidavit the plaintiff said as follows regarding her impairment consequences:
“10.I continue to suffer from the consequences deposed to in my previous affidavits, in particular as stated at paragraphs 26 and 37 of my fourth Affidavit, save that I avoid lifting Cobie now as he is heavier and more capable of walking and moving by himself. For example, he is able to get in and out of the car by himself now.
11. In addition, I say that my right ankle has troubled me since the time of the incident but has become worse since the time of my Fourth Affidavit. My main problem with the ankle is stiffness and swelling. I continue to ice my ankle to deal with the swelling when required. Notwithstanding, my ankle is not as debilitating or restrictive as my right knee problem.”
65In her viva voce evidence, the plaintiff said that her right ankle swells if her leg is not elevated. In the course of giving evidence, the plaintiff elevated her right leg on a chair.
66On first day of hearing, the Court was asked to view the plaintiff’s right ankle. The plaintiff said that her ankle was swollen prior to elevating it in Court, and that elevation of it had led to only a slight reduction in the swelling. The plaintiff removed her footwear and socks from both ankles for comparison. It appeared to me that there was some slight swelling to the front and lateral side of right ankle, but it was difficult to discern any significant difference between the appearance of the right and left ankles.
Aggravation injury to cervical spine
67In her first affidavit, sworn on 15 February 2021, the plaintiff deposed as follows regarding the impairment consequences of the claimed aggravation injury to her cervical spine:
“14.Prior to the accident, I occasionally had headaches, once or twice a week. The pain level was 4 or 5 out of 10. I took Mersyndol Forte to control the symptoms. Since the accident I get headaches more regularly and the pain is more intense. I now take stronger medication, being Panadeine Forte, to control the headaches.”
68In her second affidavit, sworn on 17 January 2022, the plaintiff relevantly deposed:
“20… I struggle to sit at a desk and use a computer for more than 30 minutes as this causes my neck, back and right leg to stiffen and ache.”
69In her fourth affidavit, sworn on 24 November 2022, the plaintiff relevantly deposed:
“14In the lead up to commencing work for the employer, I suffered from minimal and infrequent neck pain. I had headaches from time to time, including a particularly drawn-out episode associated with a trip to Bali in August 2016. After the Bali trip, I was prescribed Mersyndol Forte by Dr Psycharis. I recall that the medication worked well. After that, my headaches returned to their usual state of infrequent (probably about once or twice a week) and not too debilitating. It was rare for me to have severe headaches like the ones I regularly have now.
…
28. At the time of the incident, I had a severe headache and severe knee pain. They were my focus at the time. Notwithstanding, since the incident I have suffered from constant neck pain which is more severe than anything I have experienced in my neck since recovering from the fusion surgery in 2013.
29. My neck pain is worse on the right side, and it travels into my head. I find the pain is aggravated when I spend too long in a sedentary position, which I try to avoid but isn’t possible due to my knee pain.
30. When I sit down for extended period, the neck pain gets worse, and my headaches also become stronger. After around 30 minutes to 45 minutes of sitting, my neck pain and headaches usually become so strong that I have to take medication or lay down on the couch to rest (or both).
31. I continue to suffer from regular headaches, which I believe are also flared up by my neck condition. I have headaches most days, which vary in intensity. The pain is usually manageable but often flares up and becomes debilitating, in particular when I spend a long time in a sedentary position.
32. On the days where I can be a bit more active on my knee, I find that my neck pain and headaches are fine. For example, when I go to the shops my headaches and neck pain tend to go away. Unfortunately, I can only be on my feet for short periods before my knee pain flares and I need to rest my leg.
33. I believe that my headaches and neck pain would preclude me from performing any sort or work that required sitting for extended periods. As such, I don’t think I am suitable for any office-based work. I would also have difficulty with heavy lifting (more than 5 kilograms) due to the pain it would cause my neck.
34. My son presently weighs around 13 kilograms and I have difficulty carrying him due to my neck pain. I often change his nappy on the floor because I struggle to lift him onto the change table. I try to avoid lifting him but sometimes it’s required. When required, I try to use my left arm rather than my right so not to aggravate my neck too much.
35. Having regard to my neck condition alone, I think I could still ride a horse, but I would only be able to do light riding. Before the incident, I was doing all sorts of recreational riding except for jumping. Due to my neck condition, I do not believe I would be able to gallop, canter or trot as those activities would cause too much neck pain. I love my horses and I would love to perform any level of riding (even light riding) if I could.
…
37. Due to my knee injury, I sleep on my back. I find that this increases my neck pain and headaches. I often wake up with neck pain or headaches when I sleep on my back …”
The plaintiff as a witness
70Mr Ingram submitted that no suggestion was made by the defendant that the plaintiff lacked credibility, and her evidence ought to be accepted.
71Ms Manova submitted that whilst it was not suggested that the plaintiff lacked credibility or was consciously lying or overstating, the Court ought to approach some aspects of the plaintiff’s evidence with caution. This was because there were some internal inconsistencies in the plaintiff’s evidence, and the plaintiff’s own assessment of her capacity was unnecessarily pessimistic.
72I found the plaintiff to be an intelligent, confident and articulate woman.
73I find that there were some inconsistencies in the plaintiff’s evidence.
74For instance, I was unable to reconcile the plaintiff’s assertion in her first and second affidavits that her pain was worse when she did not use her leg with her viva voce evidence which culminated in evidence that “it’s sort of worse all the time”.[12]
[12]Transcript (“T”) 35-39
75A further example was the plaintiff’s evidence in her fourth affidavit that her right ankle troubled her from the time of the incident, whereas in her viva voce evidence the plaintiff said that her ankle symptoms came on in mid-2018 when she began performing work involving significant standing.[13] When the discrepancy was put to the plaintiff, she said that memory problems were the cause.[14] The plaintiff’s fourth affidavit was sworn seven months before the hearing. The plaintiff confirmed her affidavits were true and correct when she commenced her viva voce evidence. In the circumstances I do not accept that memory issues are an explanation for the inconsistent evidence.
[13]T68-69
[14]T70
76In her fifth affidavit, sworn in the month prior to the hearing, the plaintiff said that she took Mersyndol Forte once or twice a week, whereas in re-examination she said it was “… probably once or maybe twice a fortnight”.[15] No explanation was offered for the inconsistency.
[15]T130
77I also find that the plaintiff had a tendency to downplay her skills, over-emphasise her pain and restrictions, and had an unduly pessimistic view of her own capacity.
78For example, the plaintiff seemed to understate her prior experience performing reception-related tasks. The plaintiff undertook work as a veterinary nurse for several years. She appeared reluctant to acknowledge having skills in reception work, including answering phones and taking appointments and operating a computer system.[16]
[16]T47-48 and T138-139
79The plaintiff said that she had a limp ever since the surgery to her right knee, but Dr Love in May 2021,[17] Mr Pang in March 2022,[18] and again Dr Love in October 2022[19] all reported the plaintiff to have a normal gait.
[17]Defendant’s Court Book (“DCB”) 40
[18]PCB 150
[19]DCB 130
80Further, in her viva voce evidence, the plaintiff offered a gloomy account of the work opportunities in Heathcote. When asked about facilities in Heathcote, initially she stated there was “nothing there.” Later she said there was a hospital, a primary health clinic, and a maternal health clinic.[20]
[20]T145
81Initially in her viva voce evidence the plaintiff said that she took Nurofen Plus every day for her pain.[21] Subsequently she accepted that was an overstatement, that she did not take it every day, but took it most days.[22]
[21]T67
[22]T68
82Lay affidavits are often seen in this type of application. I note that the plaintiff did not tender any affidavits from her husband, her mother, or her husband’s parents. I find, based on the plaintiff’s evidence, that those family members would have been able to give an account of the plaintiff’s day-to-day functioning. That has not been done, and there is no explanation for their absence. There is therefore no lay material corroborating the plaintiff’s account of her limitations.
83I accept the defendant’s submission and approach the plaintiff’s account of her pain and restrictions, her own assessment of her aptitude for employment, and her capacity for employment, with some caution. I prefer the objective evidence where it weighs against the plaintiff’s account.
The medical evidence
Treating doctors
Dr Jim Psycharis, GP
84The plaintiff relied upon six reports from Dr Psycharis.
85Dr Psycharis has been the plaintiff’s GP since her birth.
86His first report, dated 1 July 2019, reproduced details of the plaintiff’s treatment after the incident. Dr Psycharis expressed the opinion that the plaintiff’s right knee injury, headaches and neck pain were a direct consequence of the incident. Dr Psycharis noted that the plaintiff had returned to modified duties for 25 hours a week, and he did not envisage an ability to increase her hours in the foreseeable future.
87In his second report, dated 20 July 2021, Dr Psycharis noted that on 30 August 2019 he had certified a reduction in the hours of work for the plaintiff from 25 hours per week down to 15 hours per week as the plaintiff was “struggling”. Dr Psycharis noted the plaintiff’s complaints of right ankle pain from 24 September 2019, which Dr Psycharis felt were probably related to her right knee issues. Dr Psycharis noted that he had certified the plaintiff unfit for work since 20 April 2020. As to the future, he opined:
“I feel given the severity of her right knee injury especially, she will always have a decreased capacity to work and always suffer some degree of pain.”[23]
[23]PCB 93
88In a brief report dated 24 December 2021, Dr Psycharis opined that the plaintiff had no current capacity for suitable employment by reason of ongoing discomfort, pain, and instability of her right knee. As to the future, he opined:
“I believe that the restrictions on Cara are likely to persist into the foreseeable future. She may require further surgery to repair her right anterior cruciate ligament in the future, although further success is not guaranteed given that this would be the second operation. In any case given the severity of her right knee injury she will always have a decreased capacity to work and always suffer some degree of pain.”[24]
[24]PCB 110
89In his fourth report, dated 16 May 2022, Dr Psycharis opined that the plaintiff was suffering from injuries to her right knee, headaches and neck pain, depressed mood, and an adjustment disorder, and left subacromial bursitis. He expressed the following views about the plaintiff’s work capacity:
“6.As a consequence of her physical injury and impairment she is unlikely to ever return to her pre-injury duties given their physical nature.
7. Taking into account her injuries, consequent incapacity, education, place of residence, skill and work experience, I feel it is unlikely she will have a work capacity of any sort into the foreseeable future.”[25]
[25]PCB 112
90On 19 October 2022, Dr Psycharis wrote a report “to whom it may concern”. He recounted the injuries suffered by the plaintiff in the incident. He noted that apart from surgery, the plaintiff had been treated with physiotherapy and simple analgesia as required. He noted she had not been referred to pain management as her pain was of an uncomplicated nature. He noted the plaintiff was “attempting to reduce her overall reliance on analgesics.”
91The most recent report from Dr Psycharis was dated 22 November 2022. He noted the plaintiff continued to suffer from right knee pain, swelling and instability; right ankle pain, swelling and instability; headaches and neck pain; and a depressed mood and adjustment disorder. He opined “the combination of symptoms preclude her from performing gainful employment on a consistent and reliable basis.”
92Dr Psycharis was of the view that the plaintiff’s incapacity to work would continue into the foreseeable future and that her condition would not improve adequately to consider retraining.
93Attached to Dr Psycharis’ most recent report was a table providing further information as to the plaintiff’s functioning. The entries in the table were confusing and did not identify functional restrictions caused by particular impairments. Further, the entries suggested a level of incapacity out of keeping with the other evidence tendered. I do not find it of assistance.
Mr Grant Pang, orthopaedic surgeon
94The plaintiff tendered one report from Mr Pang dated 2 August 2022. Mr Pang first saw the plaintiff on 24 August 2017, and subsequently on 20 November 2017, 1 December 2017, and 9 February 2018. Mr Pang expected to see the plaintiff in mid-2018, but “she was lost to follow up.” He then saw her again on 9 March 2022 and finally on 4 April 2022.
95As at February 2018, Mr Pang noted that the plaintiff reported that most of her pain had settled, and she did not complain of any instability symptoms, but struggled with prolonged standing or walking or with any strenuous activities. Mr Pang cleared the plaintiff to return to light duties.
96Mr Pang next reviewed the plaintiff on 9 March 2022, four years later. She complained that she had struggled with persistent instability and weakness in her right knee and advised Mr Pang of the fall in April 2020.
97Upon examination, Mr Pang found as follows:
“… she stood with normal lower limb alignment and walked with a normal gait. She had normal patellar tracking and no tenderness. She had a full range of motion in her knee. She had a grade 1 anterior draw with firm end point and a negative Lachman’s test.”[26]
[26]PCB 150
98Mr Pang ordered an MRI scan to assess the integrity of the ACL graft and to look for any other underlying cause of her feeling of instability.
99Upon further review on 4 April 2022, and having considered the MRI scan of 22 March 2022, Mr Pang opined:
“On the basis of her presentation, clinical findings, and her scans, I suspect that her graft is no longer functional, and her symptoms are a combination of patellofemoral joint chondromalacia and a non-functioning ACL graft. Although a revision ACL reconstruction can be performed, this would have to be done in two stages requiring an extensive rehabilitation period with no guarantee of success. As a result, both myself and Cara decided to simply manage this non operatively with physiotherapy and hopefully avoid surgery. I have not seen Cara since.”[27]
[27]PCB 150
100Mr Pang said as follows regarding the plaintiff’s functional restrictions and work capacity:
“5.With regards to her functional restrictions, Cara has difficulty with pivoting on her right leg such as changing directions or going from side to side. She also is expected to have some difficulty going up and down stairs and walking on uneven surfaces. She should not be restricted in walking in straight lines on flat surfaces. She is able to bend, lift and stoop as well as push, pull and lift from the ground. She should not have any difficulty with repetitive pushing, pulling, or lifting nor any repetitive or prolonged use of her right knee. She has no difficulty with overhead activities, kneeling, squatting, or crouching. She has no restrictions in prolonged sitting, walking, or standing, using steps or ladders and with manual dexterity. Her incapacity is permanent with possible some improvement with physiotherapy.
6. Given Cara’s work as a horse supervisor which requires her to work on uneven surfaces and with frequent twisting, turning, and pivoting on her right knee, it is my opinion that she does not have the capacity to perform her pre injury duties. I consider this to be a permanent incapacity. If she does undergo revision ACL reconstructive surgery, there is a possibility that she may be able to return, however there is certainly no guarantee of success with the possibility of success in the range of 70 to 80%.
7. In my opinion, Cara has the capacity to perform suitable employment on a full time basis. Her work duties will have to be restricted such that she is not required to walk on uneven ground or is required to twist or pivot with her right leg.”[28]
[28]PCB 149
Mr Peter Gard, orthopaedic surgeon
101The plaintiff tendered two reports from Mr Gard dated 20 July 2021 and 15 June 2022. The defendant tendered an earlier report dated 5 March 2020.
102Mr Gard’s report dated 5 March 2020 provided his opinion regarding the plaintiff’s right ankle condition, as follows:
“I have consulted with Cara mainly regarding her right knee. She mentioned in passing her right ankle, which I questioned her on and examined, and can find no explanation for her complaints, which are of ankle discomfort and swelling. I reviewed her x-ray, which was unremarkable and made no conclusions about what was causing her symptoms. In essence it seemed most likely to be some peripheral oedema and no specific ankle problem that I can identify at this time.
I have not made plans to review Cara further and I would consider the situation with her ankle stable.”[29]
[29]DCB 38
103In his report dated 20 July 2021, Mr Gard noted he first saw the plaintiff in January 2019. She was “dissatisfied with the right knee as presented. She reported anterior knee pain and a sense of instability.” Mr Gard found reasonable stability in keeping with a knee that had been previously injured but stabilised by ACL reconstructive surgery. He administered a localized Depo Medrol injection, with no modification of symptoms.
104The plaintiff was referred back to Mr Gard after the fall in April 2020.
105When seen on 23 April 2020, Mr Gard stated that:
“…the MRI showed significant pathology in the form of a relatively undisplaced but large and comminuted fracture of the tibial plateau, a large lipo haemarthrosis and a partial tear of the ACL graft. I recommended at that time that Cara be placed in a hinged knee brace, which was arranged, with protected weight-bearing for a period of time, beyond 8 weeks, to allow the tibial plateau fracture to heal in situ.”[30]
[30]PCB 141
106Mr Gard noted that shortly after the fall the plaintiff developed significant swelling in her right lower limb from foot to groin for which he referred her to a vascular surgeon.
107Mr Gard last saw the plaintiff in about June 2020, some three months after the fall. At that time, he said the plaintiff felt the right knee was unstable, and he referred her for a third opinion to Mr Christos Kondogiannis, a soft tissue knee specialist orthopaedic surgeon. There was no further evidence as to the progress of that referral.
108Mr Gard offered the following view in relation to the plaintiff’s work capacity when last seen:
“The effects of the injury on Cara’s capacity for employment have been profound. She has a leg which is significantly swollen, or was so when I last saw her, which has been very difficult to manage. Cara also has a knee which she finds to be painful and unstable and would not be appropriate for working in the role that she previously had around horses, as she would considerably lack agility and was struggling even to walk unaided short distances.”[31]
[31]PCB 142
109Mr Gard’s report dated 15 June 2022 noted that he had not seen the plaintiff since the provision of his earlier report. He said:
“I am unable to provide specific information about Cara’s current function as I have not seen her for more than 2 years, however in the time that I did see her she was noted by me to be markedly affected by the problems in the right knee. She had a great deal of difficulty walking, she had significant daily pain and she had difficulty undergoing many aspects of daily living and, in my view, would have struggled to hold down employment of any kind. I could not give an indication as to the prognosis as that remains opaque to me. Once again, I would refer you to her current orthopaedic surgeon.”[32]
[32]PCB 144
Associate Professor Harvinder Bedi, orthopaedic surgeon
110The plaintiff tendered a report from Associate Professor Bedi dated 13 July 2023.
111Associate Professor Bedi saw the plaintiff on 22 December 2022 and 6 July 2023 for assessment of her right ankle. He noted the following history of the onset of right ankle difficulties:
“Once she had returned to a reasonable level of walking and working, she noticed anterolateral ankle pain. It had steadily worsened in the 6 months prior to me seeing her without any preceding trigger.
It was diffusely over the anterolateral portion, and she was most bothered by hills and stairs.
There was swelling and stiffness but no instability. She could walk for 30 minutes before there was significant discomfort.”[33]
[33]PCB 153
112Associate Professor Bedi suggested the plaintiff attend physiotherapy for a strengthening and balance program and consider an ankle brace. He suggested a corticosteroid injection as a potential option. He discussed potential arthroscopic surgery in the event that the proposed conservative treatment options proved unsuccessful. This would involve exploration of the peroneal tendons with a view to debridement and possible repair, and if the lateral ligament was felt to be lax, this could be tightened.
113As to the cause of the plaintiff’s right ankle problems, Associate Professor Bedi opined:
“It appears that the work-related incident is a material contributing factor to this lady’s current right ankle impairment.
Specifically, she had a normal ankle prior to the work-related accident.
It was roughly a year before she could walk and stand for reasonable distances, and it was only at that time when the right ankle symptoms became apparent. It appears plausible that there was some damage to the ankle peroneal tendons that was not initially evident as the right knee was of greater concern.”[34]
[34]PCB 154
114As to the plaintiff’s capacity for work, Associate Professor Bedi said:
“Regarding the right ankle injury, this has resulted in the ongoing anterolateral pain and a restriction of her walking distance to around 30 minutes at a stretch.
She is using various medications to address her residual knee symptoms as well as her ankle including analgesics and anti-inflammatories.
Regarding her functional impairment, she is restricting in her walking distance as well as her ability to engage in repetitive lifting. She is able to use a computer.
She is unrestricted in her activities of daily living and restricted in terms of her social and recreational activities. I am not aware of any restriction in terms of sleeping and driving.
At this point, I cannot comment on whether she is permanently incapacitated for her preinjury employment due to her ankle alone as she has had minimal treatment for it.
I believe that she is able to perform suitable employment. Specifically, she should avoid prolonged standing and walking, and the impairment is likely due to a combination of her residual knee and ankle symptoms.”[35]
[35]PCB 154-155
115Associate Professor Bedi was of the view that the plaintiff’s ankle condition had not stabilised, but he did not believe that there was a risk of deterioration in the future. He expected some improvement from conservative and potential operative management.
Dr Marg Perrott, physiotherapist
116The plaintiff tendered a report from her treating physiotherapist, Dr Perrott dated 29 August 2022.
117Dr Perrott did not outline when she first saw the plaintiff nor the nature or frequency of treatment she provided. However, it appears that the plaintiff was referred to Dr Perrott by Mr Owen shortly after her right knee surgery for treatment of arthrofibrosis.
118Dr Perrott opined as follows regarding the plaintiff’s right ankle injury:
“She has developed worsening right ankle pain that is either the result of the initial injury, walking with a poor gait pattern when she had arthrofibrosis or from her first fall when she fractured the tibia. While any of these could have caused the ankle injury it is likely that it arose from the force of the horse knocking her to the ground.”[36]
[36]PCB 145
119Dr Perrott opined that:
“Given her current symptoms, in the longer term it would be reasonable to expect that her knee will progress with osteoarthritis to needing a total knee replacement.”[37]
[37]PCB 145
120Dr Perrott stated that by reason of the right knee and right ankle impairments:
“It is difficult to imagine how she would cope with trying to work as she has pain in all situations. The knee will be a permanent issue and possibly the ankle may be permanent.”[38]
[38]PCB 146
Mr John Cunningham, orthopaedic spine surgeon
121The plaintiff tendered five reports from Mr Cunningham.
122In the first report, dated 11 April 2014, Mr Cunningham outlined his treatment of the plaintiff in the period between September 2012 and November 2013, including the fusion surgery he performed. He noted:
“Miss Barbera’s progress has been more than satisfactory. She has had resolution of the headaches and neck pain which she came to see me for originally. She will have life long reduced range of motion of her head, noticeably in rotation. She should however be relatively free from pain and have a good capacity for work.
Obviously this work should be limited to activities which do not require her to turn her head often or to a great extent and she should avoid activities which involve heavy upper limb lifting.”[39]
[39]PCB 343
123Mr Cunningham wrote two reports dated 9 February 2015. He noted that the plaintiff’s headaches had improved. Upon review of a CT scan of her cervical spine he had the impression that there was bridging bone, but it was slight. He said:
“For all intents and purposes I think Cara’s neck is now fused sufficiently enough and as long as her symptoms remain at bay I do not think we need to image her any further.
I believe your client will be able to engage in most activities in the future except for anything which requires her to perform any heavy upper body work. Of course the reduced range of motion in her neck will be permanent.”[40]
[40]PCB 345
124The plaintiff was referred back to Mr Cunningham following the incident. In his report dated 8 September 2017, he noted that the plaintiff had been doing reasonably well following her fusion surgery but had recently been kicked by a horse. He said:
“Ever since this time she has been developing neck pain around her right axial region and headaches. Her range of motion has not changed.”[41]
[41]PCB 346
125Mr Cunningham noted that x-rays of the plaintiff’s cervical spine did not show any abnormality. He ordered a CT scan.
126In his report dated 22 September 2017, Mr Cunningham noted that the CT scan of the plaintiff’s cervical spine showed that her fusion was perhaps not completely solid.
127Given the plaintiff was complaining of right-sided neck pain, Mr Cunningham ordered a bone scan. No subsequent bone scan of the plaintiff’s cervical spine was tendered and no further report from Mr Cunningham was tendered.
Medico-legal doctors
Dr Joseph Slesenger, occupational physician
128The plaintiff tendered three reports from Dr Slesenger.
129For his first report, dated 26 October 2021, Dr Slesenger examined the plaintiff by telehealth. He subsequently examined the plaintiff in person for his second and third reports, dated 2 September 2022 and 11 July 2023.
130In his first report, Dr Slesenger said that the plaintiff reported neck pain at the base of her neck, and she felt her neck was stiffer than before the incident. She said her neck symptoms were aggravated by prolonged static postures. She reported that she had “residual” right knee pain, but her major disability was that the knee felt loose and was prone to giving way. Her symptoms were aggravated by activity and cold weather. She said she had residual bilateral hip pain and residual right ankle stiffness, swelling and discomfort on weightbearing on the right.
131Dr Slesenger noted that the plaintiff reported the following regarding her current function:
“Ms Barbera has difficulty climbing up and down stairs and she climbs one step at a time leading with her left unimpaired side. She can walk 20-30 minutes and drive for 60 minutes. She is unable to squat or to kneel. She is unable to run.
…
She advised that she can attend to light domestic duties including light shopping, cooking and cleaning and paces all of her activities. She advised that she can perform all aspects of childcare. She advised that she is supported by her partner and her mother with regard to domestic duties.”[42]
[42]PCB 192-193
132The plaintiff reported that she was taking one to two Panadeine Forte a day. She reported that physiotherapy treatment ceased in 2019.
133Dr Slesenger did not perform any clinical examination of the plaintiff on that occasion.
134On 17 August 2022, the plaintiff was examined by Dr Slesenger for the purpose of his report dated 2 September 2022.
135On this occasion, Dr Slesenger said that the plaintiff described “residual” neck pain that was severe, with migrainous radiating symptoms, occurring two or three times a week lasting for up to two days. She described “residual” right knee pain, swelling, stiffness and restricted range of movement. She said that she had pain in the anterior and lateral aspect of the right ankle with some restriction to the range of movement. Her bilateral hip pain persisted but was more noticeable at night.
136Dr Slesenger recorded that the plaintiff reported her current function as follows:
“Ms Barbera advised that she can sit, stand and walk for about 30 minutes although this is variable and on 2 or 3 days per week, she generally is unable to get out of bed due to combination of fatigue, due to sleep disturbance, migrainous headaches or aggravation of her chronic pain (she noted in particular that her hip bursitis is prone to deteriorate during the night).”[43]
[43]PCB 214
137The plaintiff said that she was having physiotherapy fortnightly and was no longer taking Panadeine Forte on the advice of her GP.
138On examination, Dr Slesenger noted the plaintiff walked with a right-sided limp. He found no tenderness in the cervical spine but a reduced range of movement. There was no crepitus on examination of the right knee. The range of movement of each knee was the same. He found mild anterior and posterior laxity in the right knee. Dr Slesenger noted tenderness on examination of the right ankle.
139Dr Slesenger’s diagnoses were a soft tissue injury, ACL tear and tibial plateau fracture of the right knee; bursitis in the right hip; and a soft tissue injury and possibly an aggravation of degenerative disease in the right ankle. He recommended the plaintiff be seen by a pain specialist and a neurologist.
140Dr Slesenger outlined restrictions in light of the plaintiff’s combined hip, knee and ankle conditions. He opined that the plaintiff was unfit for her pre-injury duties, and said:
“I do not anticipate her returning to work performing suitable alternative duties on a consistent and reliable basis.”[44]
[44]PCB 224
141When asked about the plaintiff’s capacity for various proposed roles, Dr Slesenger relevantly opined:
“Receptionist: whilst I anticipate that based on the right hip, knee and ankle impairment alone, she has the capacity to attend to the manual handling tasks associated with this role, I do not anticipate her returning to work in this role on a consistent and reliable basis.
General Clerk (Administration Assistant): whilst I anticipate that based on the right hip, knee and ankle impairment alone, she has the capacity to attend to the manual handling tasks associated with this role, I do not anticipate her returning to work in this role on a consistent and reliable basis.”[45]
[45]PCB 224-225
142Dr Slesenger re-examined the plaintiff on 28 June 2023 for the purpose of his third report, dated 11 July 2023.
143On that occasion the plaintiff reported severe “residual” neck pain with radiating symptoms into both shoulders. She said that she had migrainous headaches on a weekly basis lasting one to two days. Her right knee symptoms had persisted with ongoing pain, swelling, stiffness and a restricted range of movement. Her knee was prone to giving way. She had “residual” right ankle pain, stiffness, and restricted range of movements. She reported right hip pain over the lateral aspect of the hip with some restriction to her range of movement.
144Her current function was reported as follows:
“Ms Barbera can walk, stand and sit for about 30 minutes, although this is variable and at times she is unable to venture out of bed due to persistent symptoms (due to a combination of migrainous headaches, chronic pain and fatigue).
She advised that she is unable to over shoulder reach on the left side. She is unable to walk on uneven ground, squat or lie on either the right or left side.
...
Ms Barbera can dress, wash, shower and toilet herself.
She continues to wake around 7 am and retire around 11 pm, although advised that she paces her activity during the day, and on 2-3 days a week, she generally spends the day in bed due to a combination of fatigue, migrainous headaches and chronic pain.
She advised that she is being supported by her family with regard to almost all domestic duties, including shopping, cooking, cleaning and laundry.
She advised that she continues to attend to her son in terms of assisting him in and out of the bath and putting him in the car seat; however, she also noted that her son is now mobile in walking and this is limiting her lifting requirements.”[46]
[46]PCB 241-242
145The plaintiff reported that she took Mersyndol Forte for migrainous headaches once or twice a week, and Nurofen Plus daily. She was not seeing a physiotherapist.
146Dr Slesenger’s examination findings of the plaintiff’s cervical spine, right hip, right knee, and right ankle on this occasion were similar to his findings 10 months earlier, although on this occasion he noted mild tenderness in the cervical spine and a reduction in the range of movement. In the right hip he noted no tenderness, and greater external rotation than previously. He found a reduction in plantar flexion and hind foot inversion to the right ankle.
147Dr Slesenger opined that, regardless of the incident, the plaintiff was at risk of deteriorating symptoms in her cervical spine due to the risk of developing adjacent segment disease following the fusion surgery.
148On the basis of the history that the plaintiff was asymptomatic prior to the incident, he opined that it was likely that she suffered an aggravation of pre-existing degenerative disease in the incident.
149Dr Slesenger separately identified the plaintiff’s headaches, noting that a component of that presentation was consistent with migrainous headaches, and a component was likely cervicogenic.
150Dr Slesenger opined that based on the plaintiff’s cervical spine impairment alone (not including the migrainous headaches), she was unfit for pre-injury and suitable employment.
151Dr Slesenger noted that the job demands of the roles of receptionist, admissions clerk and pathology collector were all “light,” but the plaintiff would be “unlikely to be able to attend work consistently and reliably.” He does not explain the basis for this opinion.
152Dr Slesenger opined that due to the impairment consequences of the plaintiff’s right hip, knee, and ankle she was unfit for pre-injury and suitable employment due to:
“… the variable and unpredictable nature of her symptoms.
I note periodic aggravation of her symptoms and she is required to rest for up to 3 days at a time. These periods of incapacity are related to a combination of her migrainous headaches, her fatigue and her chronic pain (of which a component relates to her right lower limb impairment).”
Mr Russell Miller, orthopaedic surgeon
153The plaintiff tendered three reports from Mr Miller.
154Mr Miller examined the plaintiff on two occasions, both via Zoom, for the purpose of his first and second reports, dated 27 October 2021 and 21 October 2022.
155In his first report, Mr Miller noted that the plaintiff reported ache, discomfort and pain in her right buttock, groin, and thigh; ache, discomfort, and pain in her right knee, which felt weak and insecure and frequently gave way; and ache, discomfort and pain in her right ankle and foot. The plaintiff reported ache, discomfort, and pain in her neck, radiating into the right shoulder and arm, with frequent associated headaches which were occasionally severe. She reported taking Nurofen Plus and Panadeine Forte. She no longer undertook physiotherapy.
156Mr Miller opined that the deterioration in the plaintiff’s cervical spine was likely due to a musculoligamentous strain and aggravation of degenerative disease. He thought it likely that the plaintiff had developed a chronic pain syndrome. He noted ongoing symptoms in the plaintiff’s right knee which had a poor prognosis. He opined that there had been a soft tissue injury to the right ankle probably involving disruption to the lateral ligaments.
157As to capacity for work, Mr Miller opined:
“In terms of the cervical spine, the client will have difficulty with work that involves large amounts of repetitive bending, repetitive lifting, lifting of weights of more than 5 kilograms, and will have a requirement to shift her posture on a regular basis.
The lumbar spine should not impose specific work limitations.
From the point of view of the right knee, she will have difficulty with work that involves amounts of twisting, turning, kneeling, squatting, walking on uneven ground. She would not be safe to climb.
The above restrictions are permanent and relate substantially to the work injury.
The client therefore could not return to her pre-injury duties on any significant full-time or part-time basis.”[47]
[47]PCB 265
158Mr Miller re-examined the plaintiff via Zoom on 21 September 2022 for the purpose of his second report, dated 21 October 2022.
159On this occasion the plaintiff told Mr Miller that her right ankle was “worse”, but other aspects of her right leg injury were the same. She reported similar symptoms in the cervical spine as on the previous occasion. She reported that physiotherapy was not ongoing, but she continued to take Nurofen Plus and Panadeine Forte.
160Mr Miller’s views were unchanged regarding the plaintiff’s cervical spine and right knee. As to the right ankle he opined:
“The symptoms have deteriorated since the client was last reviewed by me. The symptoms are now associated with the development of chronic pain syndrome and the prognosis is only fair.”[48]
[48]PCB 274
161Mr Miller opined that the plaintiff may benefit from further surgery to her cervical spine but did not identify what that might be. He was of the view that the plaintiff’s right knee condition would continue to deteriorate, leading to the requirement for further reconstructive surgery. The plaintiff may require reconstructive surgery to the right ankle.
162Mr Miller said that the plaintiff was unfit for pre-injury duties but suited for sedentary work in a predominantly seated position.
163On 29 June 2023, Mr Miller provided a supplementary report. He did not re‑examine the plaintiff. Mr Miller was provided with additional medical reports and asked for his comment. The further information did not cause Mr Miller to alter his previously expressed opinions.
Professor Richard Bittar, neurosurgeon
164The plaintiff tendered two reports from Professor Bittar, dated 27 January 2023 and 26 June 2023. Professor Bittar examined the plaintiff on one occasion by telehealth.
165Professor Bittar reported that the plaintiff complained of constant, predominantly right-sided neck pain with an average severity of eight out of ten and a maximum severity of nine out of ten. The plaintiff reported that it was:
“... exacerbated by sudden or repetitive neck movements, maintaining her neck in a fixed position for prolonged periods, as well as sitting, using a computer, or driving for more than around 30 minutes. It worsens if she lifts more than around 8 kg. It improves with recumbency, frequent postural changes, heat packs, and medications.”[49]
[49]PCB 282
166The plaintiff reported that she experienced daily headaches lasting about two hours which typically occurred when her neck pain flared up.
167Professor Bittar recorded that the plaintiff took Nurofen almost daily and Mersyndol Forte around once a week.
168Professor Bittar opined that the plaintiff presented with “aggravation of cervical spondylosis” to which the incident was a significant contributing factor. He recommended the plaintiff be reviewed by a pain specialist.
169As to the plaintiff’s work capacity, Professor Bittar opined that the plaintiff was permanently unfit for her pre-injury employment and:
“Considering her cervical spine condition alone, she does have the physical capacity to work two to three hours per day, two to three days per week. She would need to be able to change positions frequently, and avoid sitting for more than 30 minutes at a time. She would need to avoid any repetitive neck or arm movements, as well as lifting more than 5−8 kg.”[50]
[50]PCB 286
170Professor Bittar did not explain why the plaintiff was limited to working a maximum of nine hours a week, or indeed whether such restrictions were due to the totality of the plaintiff’s neck condition or only the aggravation injury.
171Professor Bittar was subsequently provided with additional documents and asked to comment upon them. It is not clear what the documents comprised, but Professor Bittar was provided with Mr Speck’s report dated 16 May 2023.
172Professor Bittar opined that Mr Speck was “completely incorrect” to say that there was no evidence of persisting injury to the plaintiff’s cervical spine from the incident. He stated that both the mechanism of the incident and the plaintiff’s “ongoing neck pain, headaches and associated treatment requirements are consistent with an opinion that she sustained a significant injury to her neck in the 2017 incident.”[51] Professor Bittar was of the view that a diagnosis of somatic symptom disorder was unlikely, and criticised Mr Speck for offering an opinion which was beyond his expertise.
[51]PCB 306
173The further material provided to Professor Bittar did not cause him to change his previously expressed opinions.
Dr David Love, orthopaedic surgeon
174The defendant tendered three reports from Dr Love dated 11 May 2021, 16 August 2021, and 12 October 2022. Dr Love examined the plaintiff twice, for the purposes of his first and third reports.
175In his first report, Dr Love noted that the plaintiff had not had any physiotherapy since her fall in 2020. On clinical examination of the plaintiff’s right knee, Dr Love noted:
“On examination she walks with a normal gait. Her right knee has no effusion. She has a range of motion from -5° or hyperextension through to 130° of flexion. Her collaterals are intact but she does have a positive draw test. Please note I did not perform a pivot shift test due to concerns of pain and the fact that she is 36 weeks pregnant.”[52]
[52]DCB 40
176Dr Love offered the following conclusions regarding the plaintiff’s right knee condition:
“The surgery has not been particularly successful at alleviating the symptoms of instability and she has continued to get symptoms of instability and pain. This has been exacerbated by a fall in February 2020 resulting in a proximal tibial fracture as described in the body of the report.
This has left her with ongoing symptoms of pain and instability as well as a partial tear in the ACL as mentioned in the report.
No doubt, there will be an element of degenerative change developing in her knee, secondary to the articular surface injury that has been sustained both in 2017 and also 2020. A significant amount of bone marrow oedema, as noted in the MRI will be contributing to this.
As such, I think her working diagnosis at this stage is a recurrent ACL rupture in conjunction with early degenerative change in the right knee. Therefore, at this stage, I do consider that the worker’s reported pain and restrictions are consistent with the expected courses and the mechanism of injury are certainly within the possibility of outcomes following this injury and even the subsequent surgery.”[53]
[53]DCB 41
177Dr Love stated that as the plaintiff was then unemployed it was not possible for employment to be a continuing cause of the plaintiff’s right knee condition. I do not accept that aspect of his opinion, as there is no issue here that the plaintiff’s condition is relevantly causally related to the incident.
178As to work capacity, Dr Love was of the opinion that the plaintiff was unfit for her pre-injury duties and cleaning work because of pain and instability and the lack of ability to kneel or trust her knee on wet or uneven surfaces. However, Dr Love opined that the plaintiff had the physical capacity to perform sedentary work that required minimal lifting, walking or mobilisation.
179Dr Love was subsequently provided with a Recovre vocational assessment report dated 5 July 2021 and asked to comment on the plaintiff’s capacity to perform the proffered roles.
180In his report dated 16 August 2021, Dr Love opined that all of the suggested roles were suitable for the plaintiff. In particular, he opined that the plaintiff had the physical capacity to perform receptionist and information officer roles full-time, and pathology collector roles part-time (such as Monday, Wednesday and Friday) to allow for rest periods.
181Dr Love re-examined the plaintiff for the purpose of his third report, dated 12 October 2022. Dr Love reported that the plaintiff gave him the following account of her ongoing symptoms:
“Since reviewing her in 2021, she is continuing to get problems in her right knee with pain particularly at the posterior aspect of the knee. This pain is intermittent in nature and is associated with a clicking and catching sensation. The pain tends to be better at rest and worse with activity. It is intermittent in an ongoing fashion. Overall, she feels that the knee is in much the same condition it was when last reviewed.
...
From a functional point of view the pain in her knee does affect her ability to walk significant distance and she has difficulty walking for more than about 30 minutes and pivoting on that knee. She has difficulty squatting and kneeling.
At night time her sleep can be affected because of the discomfort in her knee. She is able to put on her shoes and socks without difficulty.”[54]
[54]DCB 129
182Dr Love noted that the plaintiff told him that she did not feel she had the capacity to perform a sedentary job as “sitting in the same position for a long time aggravates the pain in her neck and causes a migraine.”[55]
[55]DCB 130
183Dr Love’s findings on examination were similar to those he found the previous year:
“On examination she walks with a normal gait. Her right knee has no effusion. She has a full range of motion from 5° of hyperextension through to 120° of flexion and it is fully symmetrical with the contralateral side. The collateral ligaments are intact and the cruciate ligament is intact with a firm end point. There was no significant wasting.”[56]
[56]DCB 130
184Dr Love diagnosed ongoing right knee dysfunction following ACL reconstruction with residual dysfunction of the ACL graft. He was also of the view that it was possible the plaintiff had other soft tissue pathology including the possible degeneration of cartilage in the knee that could account for some of her pain.
185Dr Love said that he may have to change his opinion regarding the plaintiff’s work capacity “based on a conversation with her today.” He opined:
“The pain is preventing her from sitting comfortably for long periods of time and when I take into account the other cervical spine and migraine problem that she describes, she is unlikely to be able to do even sedentary jobs with any reliability.
…
The fact that she feels that she would be unreliable, regardless of the job, gives an indication of what her work capacity may be.”[57]
[57]DCB 131
186Dr Love opined that it was possible the plaintiff may develop worsening pain and stiffness in her right knee secondary to ongoing degeneration and might need consideration of a knee replacement possibly many decades into the future.
Dr David Barton, occupational physician
187The defendant relied upon four reports from Dr Barton, who examined the plaintiff by telehealth on 4 November 2021, and in person on 12 October 2022.
188In his first report, Dr Barton opined that the plaintiff had the capacity to perform the roles outlined in the Recovre report sent to him. He confirmed this opinion in a supplementary report dated 9 November 2021, stating that the plaintiff’s capacity was for full-time work.
189Dr Barton physically examined the plaintiff on 12 October 2022 and provided a report the following day. He recorded the plaintiff’s account of her symptoms as follows:
“She describes pain behind the knee on the lateral side as well as pain below the kneecap that she says is “like a toothache”. She said that there is a good range of movement of the knee although it might occasionally click. She said when moving around she avoids pivoting on the knee and also avoids running. Otherwise, she thought that the knee was stable. Apparently, the knee might swell towards the end of the day.
In regards to her previous back and neck problems the worker said that because she is less physically active and not working, she feels that this has led to an increase in her neck pain and back pain. She now says that she develops headaches almost every day and one or two migraines a week which she attributes to her neck condition.
The worker feels that the ankle joint is stiff and associated with some limitation of movement. She describes some pain within the joint as well as below the lateral malleolus.”[58]
[58]DCB 123
190On examination of the right knee, Dr Barton noted the plaintiff had a slight limp “at times,” a 1cm smaller right thigh circumference, and no particular areas of tenderness to light palpation. Flexion of the right knee was slightly reduced. Clinical examination of the anterior cruciate showed no laxity, no particular patellofemoral crepitus, and no laxity of other ligaments. There was some diffuse tenderness of the right ankle, but no evidence of swelling or deformity, and a normal range of right ankle and foot movements and a stable joint.
191Dr Barton was of the view that the plaintiff had a capacity for suitable full-time employment, taking into account her right knee impairment. He opined that the plaintiff should avoid prolonged squatting and kneeling and avoid ladders and heavy lifting.
192Dr Barton reiterated that opinion in his report dated 14 July 2023, in which he opined the plaintiff was fit to perform the various roles in the vocational assessment provided to him on a full-time and sustained basis given her right knee impairment consequences.
Mr Gary Speck, orthopaedic surgeon
193The defendant tendered a report from Mr Speck in relation to the plaintiff’s claimed cervical spine injury. Mr Speck examined the plaintiff on 15 March 2023.
194Mr Speck recorded that the plaintiff told him that over time following the incident:
“her occasional headaches which would occur once or twice per month and for which she would take Mersyndol Forte had increased in frequency and the neck pain had become constant.”[59]
[59]DCB 141
195The plaintiff described her pain as varying from three out of ten to eleven out of ten, and it would be increased by prolonged inactivity such as sitting for a long time or alternatively doing too much.
196On examination, Mr Speck relevantly found that there was no clinical sign of further significant neck injury, and no evidence of radiculopathy or myelopathy. He said that:
“The current presentation of right sided neck pain is consistent with the pre-work injury situation with ongoing neck pain which was not resolved by the cervical spinal surgery (nor was it expected to be).
Her long-standing pain from the neck and more recently right knee pain is likely to have given rise to a somatic symptom disorder/chronic pain syndrome as well as mental health issues which should be assessed by an appropriate mental health expert.”[60]
[60]DCB 165
197Mr Speck opined that the plaintiff experienced headaches and migraines. The headaches were cervicogenic; that is, pain referred into the head from the neck. The plaintiff had also had a diagnosis of migraine headaches for which she consulted Dr Scott, neurologist.[61]
[61]DCB 166
198Mr Speck was of the view that the condition of the plaintiff’s neck was related to the transport accident, with no evidence of any further persisting physical injury arising from the incident.
199As to the plaintiff’s work capacity, Mr Speck opined that restrictions related to her neck would be to undertake work where she could change her posture and head position as needed, move about, and use simple analgesics if required.
Conclusions regarding the medical evidence
200There is little controversy that the plaintiff suffered a ruptured ACL and right knee injury in the incident, necessitating surgical repair. Further she suffered a consequential fall which caused tibial plateau fractures which were treated conservatively.
201In his more recent reports, Dr Psycharis combined the consequences of the plaintiff’s various injuries in proffering his opinion as to work capacity. I cannot approach the task in that way, so I am not assisted by that aspect of his opinion.
202With regard to the plaintiff’s right knee condition, I prefer the opinion of the plaintiff’s treating orthopaedic surgeon Mr Pang, as he has had the advantage of seeing the plaintiff on a number of occasions, following the initial surgery in 2017, and again in 2022. He is the treating specialist who has seen the plaintiff most recently in relation to her right knee injury. I prefer his opinion to that of Mr Gard and the medico-legal opinions, given that advantage.
203I place little weight on the opinions of the treating physiotherapist. Her qualifications are not apparent from her report, and the nature of frequency of treatment is not identified. Her opinion combines impairments. It is at odds with the opinions of Mr Pang and Associate Professor Bedi as to the impairment consequences of the right knee and right ankle conditions.
204As to the plaintiff’s right ankle, Associate Professor Bedi first saw the plaintiff almost six years after the initial incident, and in a treating context. His opinion on causation is no higher than a “plausible” hypothesis of a right ankle injury in the incident that became apparent later. Save for commenting that the plaintiff had a “normal” ankle prior to the incident, Associate Professor Bedi did not offer a path of reasoning for that hypothesis. I am not persuaded by that aspect of his opinion.
205Associate Professor Bedi most recently saw the plaintiff in July 2023. I accept his opinion as to the current status of the plaintiff’s right ankle given his speciality as a foot and ankle surgeon. I prefer that aspect of Associate Professor Bedi’s opinion to the medico-legal opinions for that reason.
206As to the plaintiff’s cervical spine condition, the only specialist treater material is from Mr Cunningham, whom the plaintiff has not seen since 2017.
207I prefer the opinions of Mr Pang and Associate Professor Bedi regarding the plaintiff’s work capacity. Those opinions as to capacity accord with the views of Dr Barton.
208I find that, in his most recent report, Dr Love appears to have combined the impairment consequences of the plaintiff’s right lower limb with her cervical spine and headaches when proffering his recent opinion as to work capacity. Because of this, his opinion does not assist me.
209I do not accept Dr Slesenger’s opinion that the plaintiff is unfit to perform the roles of receptionist, admissions clerk, and pathology courier as she would not be a reliable and consistent employee. That opinion does not accord with the treater material which I prefer. Further, his path of reasoning for that opinion is not set out. I find that his conclusion was likely reached by impermissibly combining the impairment consequences of all the plaintiff’s ailments.
210I do not accept Professor Bittar’s opinion as to the plaintiff’s extremely limited work capacity by reason of her cervical spine aggravation. He did not examine the plaintiff in person. He did not have access to all relevant imaging of the plaintiff’s cervical spine. He does not provide a path of reasoning for his opinion that the plaintiff’s work capacity is limited to nine hours per week.
211I note that Mr Miller does not state that the plaintiff is incapacitated for suitable employment. Rather, he outlines various restrictions on her capacity. Those restrictions do not prohibit the type of light sedentary role being proposed here for the plaintiff, namely receptionist, admissions clerk, and pathology collector.
212I prefer the opinion of Mr Speck in relation to the current status of the plaintiff’s cervical spine, which better accords with the evidence as a whole, the findings on examination, and the very limited treatment for that aggravation.
Did the plaintiff suffer an aggravation injury to her cervical spine in the incident?
213Mr Ingram submitted that it was entirely consistent that the plaintiff experienced an aggravation of neck pain and headaches after being “kicked in the head by a horse”, given that she had had the fusion surgery.[62]
[62]T193
214The defendant submitted that the claimed consequential aggravation injury to the cervical spine was not part of the plaintiff’s application until November 2022.[63] There was no contemporaneous evidence of a cervical spine injury being sustained in the incident and there was little support from the plaintiff’s treating doctors for such an aggravation injury.
[63]T53
215The defendant submitted that the medico-legal opinions of Dr Slesenger, Professor Bittar and Mr Miller on this issue ought to be approached with caution because each of those experts had an inaccurate or incomplete history. In the event that the Court were to find that the plaintiff suffered an aggravation injury to her cervical spine in the incident, the defendant asserted that the effects of that aggravation had ceased.
216In her viva voce evidence, the plaintiff said after the incident she had a “pretty whopping headache, and I noticed I had a laceration to the top of my head, but I was more concerned about my leg not being functional.”[64]
[64]T127
217The records of the plaintiff’s attendance at the emergency department of the Northern Hospital on the evening of the incident record the presenting problem and triage assessment as follows:
“KICKED BY HORSE @1530, ?LOC A FEW SECONDS, LAC C HEAD, SWOLLEN AND PAINFUL R) KNEE, NIL VOMITING
HX: NECK INJ AND OP 2013
ALERT, PEARL, PINK, WALKING WITH A SLIGHT LIMP, DRY BLOOD NOTED ON HAIR, BLEEDING SITE NOT FOUND, R) KNEE SWOLLEN, ABLE TO STRAIGHTENED, WEARING TIGHT JEANS, UNABLE TO FULLY FLEX, TENDER IN C-SPINE – PT STATES THAT IS NORMAL FOR HER”[65]
[65]PCB 348
218The plaintiff began to complain of increased neck pain and headaches in March 2017. She was referred back to her treating orthopaedic surgeon, Mr Cunningham, for an assessment. He was of the view that the fusion was not causing any problems.
219This is a gateway application where the parties adopted the “usual” course of tendering medical material. This makes determination of causation issues problematic.
220On the basis of the whole of the material, I accept that it is likely that the plaintiff aggravated her pre-existing cervical spondylosis in the incident. I do so because that finding accords with the circumstances of the incident and the fact that the plaintiff complained of increased pain and headaches within a few weeks of the happening of the incident.
What are the impairment consequences of the aggravation injury to the plaintiff’s cervical spine?
221Prior to the incident the plaintiff experienced a limited range of movement in her neck by reason of her prior injury and the fusion surgery. She also experienced pain that she rated four to five out of 10, and had headaches once or twice a week which required regular use of Mersyndol Forte.
222Since the incident, I find the range of movement of the plaintiff’s cervical spine is unchanged.
223There was little evidence regarding active treatment for the plaintiff’s neck and headaches in the more than six years since the incident.
224The plaintiff was referred back to her treating orthopaedic surgeon, Mr Cunningham, but she has not seen him since September 2017.
225The plaintiff has been seen by a neurologist, Dr Grant Scott, for treatment of her headaches, but no report was tendered from him. This is an absence of some significance in circumstances where the evidence supports a conclusion that some of the plaintiff’s headaches are cervicogenic and some migrainous.
226The plaintiff said that Dr Perrott, her treating physiotherapist, provided some treatment to her neck. Dr Perrott did not mention this in her report dated 29 August 2022. Whilst Dr Perrott may have provided some hands-on treatment for the plaintiff’s neck condition, I find that it has not been a focus of her treatment of the plaintiff.
227The plaintiff said that she has had some acupuncture, but no report was tendered from a treating acupuncturist.
228Whilst I accept that the plaintiff’s neck pain and headaches are more frequent than before the incident, I note that she now takes Mersyndol Forte less frequently than beforehand. I am unable to determine which of the plaintiff’s headaches are cervicogenic, and relevantly consequent upon a cervical spine injury, and which are migrainous.
229On the whole of the evidence, I am not persuaded that the increase in symptoms is as significant as the plaintiff now claims.
230The plaintiff’s aggravation injury to her neck did not prevent her from working up to 25 hours a week during her return to work with the employer, and up to 20 hours a week as a linen stripper in the caravan park.
231As recently as November 2022, the plaintiff deposed to being able to engage in light horse-riding despite her neck condition.
232I accept the opinion of Dr Speck that the plaintiff’s aggravation injury to her neck does not prevent her from engaging in work “where she could change her posture and head position as needed, move about and use simple analgesics if required.” If this was achieved, “she should be able to undertake appropriate work on a full-time basis.”[66]
[66] DCB 168
Did the plaintiff suffer a right ankle injury in the incident?
233Mr Ingram submitted, in reliance upon the opinion of Associate Professor Bedi, that I should find that there was some damage to the peroneal tendons of the right ankle in the incident, and that injury was not initially evident because the plaintiff’s right knee was of greater concern.
234Associate Professor Bedi’s opinion was that it was “plausible” that there was an unnoticed injury to the right ankle in the incident.
235The first recorded complaint of any pain or symptoms in the plaintiff’s right ankle was a report to Dr Psycharis in September 2019, more than two and a half years after the incident.
236I do not accept the plaintiff’s allegation in her fifth affidavit that her right ankle had been troubling her since the incident. That evidence was inconsistent with the plaintiff’s viva voce evidence on the topic, where the plaintiff said symptoms started when she returned to work.[67] It is also inconsistent with the records of her treating practitioners.
[67]T68
237I am not persuaded that the plaintiff suffered a discrete injury to her right ankle in the incident, given that there was no complaint of right ankle symptoms until more than two years after the incident.
Did the plaintiff suffer a consequential right ankle injury by reason of her right knee condition?
238The plaintiff’s evidence was that she began to experience pain in her right ankle when she was performing modified duties for the defendant.[68] The plaintiff began a graduated return to work in August 2018.
[68]PCB 20
239In her viva voce evidence, she attributed her ankle problems to the limp she had since the incident and being on her feet all day performing modified duties in the defendant’s café.[69]
[69]T72
240Initially, Dr Psycharis connected the plaintiff’s right ankle problems to her knee injury; however, he does not include it as an incident-related injury in his more recent reports.
241I note Dr Slesenger did not diagnose a work-related ankle injury.
242Mr Miller stated that the right ankle injury was related to the compensable knee injury but did not state why that was so.[70]
[70]PCB 264
243Dr Barton was not sure what had been revealed by scans of the plaintiff’s ankle but rejected the suggestion that an altered gait had led to ankle pathology.
244I accept that the plaintiff has had an altered gait from time to time since the incident by reason of her right knee injury. Her symptoms came on when she was on a return-to-work program which involved working in the defendant’s café and spending considerable time on her feet.
245On balance, I am prepared to accept for the purpose of this gateway application that the plaintiff developed symptoms in her right ankle by reason of the condition of her right knee.
246I therefore find that the plaintiff’s right ankle injury is a consequence of the right knee injury she suffered in the incident.
Did the plaintiff suffer a consequential right hip injury by reason of her right knee condition?
247The plaintiff said that as a result of her right knee injury she would lean to the left when standing and had an altered gait.[71]
[71]T29, T31
248The plaintiff’s case was put on the basis that her altered gait by reason of her right knee injury caused her right hip injury.
249The plaintiff first reported left hip symptoms to her GP in October 2018.
250Right hip symptoms were not reported until May 2019. The first imaging undertaken of the right hip was an ultrasound of the right hip and groin on 4 June 2019. That was reported to reveal that the trochanteric bursa was thickened and was said to be equivocal for trochanteric bursitis.
251The only evidence tendered from a treating doctor in respect of the claimed consequential right hip injury was from Dr Psycharis.
252However, whilst Dr Psycharis noted the symptoms in the plaintiff’s right hip, he did not offer any link between that condition and the plaintiff’s right knee injury.
253None of the treating orthopaedic surgeons refer to the plaintiff’s right hip.
254Mr Miller examined the plaintiff’s right hip but did not link the condition to the knee injury.
255Dr Barton also did not support a link between the right knee and right hip.
256The only medical evidence supporting the proposition that the plaintiff’s right hip condition was consequential upon the right knee injury was from Dr Slesenger. He is an outlier on this issue.
257The evidence is sparse on this issue. Imaging indicates bursitis in each hip.
258Whilst I accept that the plaintiff experienced symptoms in her right hip, I am not persuaded that this aggravation was relevantly caused by her altered gait.
259The defendant submitted that the plaintiff had not relevantly disentangled the impairment consequences of this condition.[72] However, I find that the plaintiff has sufficiently disentangled the impairment consequences.
[72]Peak Engineering & Anor v McKenzie [2014] VSCA 67
Conclusions regarding the claimed consequential injuries to the right lower limb
260I find that as a consequence of her right knee injury, the plaintiff developed the claimed right ankle impairment.
261I therefore approach the assessment of the plaintiff’s claim as an assessment of the impairment consequences of the plaintiff’s right lower limb comprising both her right knee and her right ankle but excluding her right hip.[73]
[73]Victorian WorkCover Authority v Brassington [2021] VSCA 236; Lexa v Transport Accident Commission [2019] VSCA 123 at [50]
The plaintiff’s loss of earning capacity consequence claim
262For the plaintiff to succeed in her claim for the loss of earning capacity consequence in relation to the right lower limb and/or the aggravation to the cervical spine, she must establish:
(a) her 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, fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”);
(b) she has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”); and
(c) after the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
263The concept of suitable employment carries with it the concept of returning to work “as a settled or established member of the wage earning workforce.”[74] It requires more than a physical capacity to engage in a task or tasks. For example, it includes the ability to get to and from employment. Age, education, and experience are relevant matters as well as the nature and extent of the worker’s incapacity.[75]
[74]Philmac Pty Ltd v Asti (1980) 26 SASR 213, 218
[75]Richter v Driscoll [2016] VSCA 142, [72]-[79]
“Without injury” earning capacity
264The parties were essentially agreed that the figure which most fairly reflected the plaintiff’s “without injury” earning capacity was $810 per week gross.[76] Sixty per cent of that figure is $486 per week.
[76]T6-7 and Defendant’s written closing submissions dated 31 July 2013, paragraph 47
“With injury” earning capacity
265The plaintiff’s “with injury” earning capacity is the greater of the gross income from personal exertion which she is earning, whether in suitable employment or not, or capable of earning in suitable employment.[77]
[77]Section 325(2)(f) of the Act
266The plaintiff has not worked since April 2020.
267The plaintiff submitted that she has no capacity to work, and that is likely to be permanent in the requisite sense.
268It was submitted that employment is not suitable if it would render the plaintiff susceptible to further injury by way of new injury or aggravation of an existing injury.
269The defendant accepted that by reason of the impairment consequences of the plaintiff’s right knee injury, she was permanently unable to perform heavy physical work, and unfit for her pre-injury employment.
270The defendant submitted that the plaintiff is capable of working in a range of lighter sedentary employment. In that regard, three administrative-type roles were said to be suitable. The defendant submitted the plaintiff was capable of earning more than 60 per cent of her “without injury” earning capacity if she worked 20/21 hours per week or more as a receptionist, admissions clerk or pathology collector.
271The defendant also submitted that the plaintiff is the primary carer for her two-year-old son. She admitted that she was capable of all aspects of childcare and acknowledged that looking after an active two-year-old was a very hard and demanding job.[78]
[78]T27
272The defendant relied upon a Recovre vocational assessment report dated 5 July 2021 authored by Janette Ash, and a supplementary Recovre vocational assessment report dated 21 July 2023 authored by Janette Ash and Robyn Willett.
273The plaintiff relied upon a Flexi Personnel report of Mandy Morgan dated 15 November 2022.
274The plaintiff submitted that the defendant’s failure to tender a labour market analysis report it had obtained in 2019 ought to lead to an inference that the evidence would not have assisted the defendant. Given that more recent vocational material was tendered by the defendant dealing with the roles being put forward, I do not draw the inference sought.
The plaintiff’s work capacity taking into account the impairment to her right lower limb
275The relevant body function is the plaintiff’s right lower limb. The aggravation injury to the plaintiff’s cervical spine will be separately considered below.
276For the reasons outlined, I prefer the evidence of Mr Pang, Associate Professor Bedi, and Dr Barton that the plaintiff has a capacity for full-time sedentary work taking into account the impairment consequences of her right lower limb. I find that she has the capacity to drive up to an hour at a time.
277Given the medical evidence that I have preferred, the plaintiff has not persuaded me that sedentary work is unsuitable for her.
278The plaintiff has not worked for three years, so she would need a gradual reintroduction to the workforce.
279On the basis of all the evidence in this case, I am satisfied that the plaintiff is able to work at least 21 hours a week in light/sedentary employment with the impairment of her right lower limb and could progress to full-time work in time.
The plaintiff’s work capacity taking into account the aggravation injury to the cervical spine
280In her fifth affidavit the plaintiff deposed to being unable to perform sedentary employment because of her neck problems.
281During cross-examination the plaintiff said that she would not be able to work for even a few hours a week because her medications affected her cognitive function,[79] and because she thought that looking at a computer would probably aggravate her neck condition.[80]
[79]T88
[80]T95
282For the reasons outlined above I do not accept the plaintiff’s self-assessment of matters absent objective evidence in support.
283No medical evidence was tendered to support the plaintiff’s claimed reduced cognitive function.
284The evidence which I have preferred regarding the aggravation injury to the plaintiff’s cervical spine is:
(a) The range of movement of the plaintiff’s cervical spine is unchanged from before the incident;
(b) The plaintiff has somewhat increased pain and more frequent cervicogenic headaches, which is managed by less frequent ingestion of Mersyndol Forte than prior to the incident, and also in part by Nurofen Plus which the plaintiff takes most days (for pain in several areas);
(c) There is no medical evidence to support a proposition that looking at a computer screen, in circumstances where the plaintiff had the ability to change postures, would aggravate the condition of the plaintiff’s cervical spine or cause increased symptoms;
(d) The aggravation injury has required minimal hands-on treatment, no specialist referral for six years, and no treatment is planned;
(e) The plaintiff was able to perform return-to-work duties and thereafter alternative work of up to 20-25 hours a week between 2018 and 2020.
285On the basis of all the evidence in this case, I am satisfied that the plaintiff is able to work at least 21 hours a week in light/sedentary employment with the aggravation injury to her cervical spine.
The plaintiff’s experience and aptitude for the roles of receptionist, admissions clerk, and pathology collector
286In the Recovre supplementary report dated 21 July 2023, the role of receptionist was summarised. It involves greeting clients and visitors, and responding to personal, telephone, email and written inquiries and requests.[81] The Recovre report dated 5 July 2021 included a worksite assessment for a role of receptionist in an emergency vet clinic.[82] In summary the role is light/administrative, with opportunities to sit and stand.
[81]DCB 173
[82]DCB 109-112
287In the Recovre report dated 5 July 2021, the role of admissions clerk was summarised. It involves obtaining details from patients and entering them into a computer system. It is the administrative “check in” to the service. The report also included a worksite assessment for a role of admissions clerk in Bendigo.[83] In summary the role is light/administrative in nature, with limited manual handling demands, and opportunities to sit and stand.
[83]DCB 106-108
288In the Recovre supplementary report dated 21 July 2023, the role of pathology collector was summarised. It involves extracting, collecting, labelling and preserving blood and other specimens from patients for laboratory analysis.[84] The Recovre report dated 5 July 2021 included a worksite assessment of the role of pathology collector.[85] In summary the role is light in nature, with both sitting and standing required.
[84]DCB 176
[85]DCB 116-118
289I find that the plaintiff had some limited exposure to administrative tasks when working one day a week for a real estate agency. Of more significance, the plaintiff worked full-time as a veterinary nurse for several years prior to taking up the job with the employer. In that role she was required to perform some administrative and reception tasks as well as assisting with surgical procedures, taking blood samples, and monitoring animals.
290In her role with the employer, the plaintiff interacted with the public conducting tours of the facility.
291The plaintiff completed Year 11. She is a young, intelligent, confident, and articulate woman. She has basic computer skills. She has shown herself to be adaptable in a work context, having held a number of different jobs since leaving school.
292The plaintiff would require a Certificate III in Pathology Collection to undertake the role of Pathology Collector. According to the Recovre vocational assessment report this can be undertaken at Bendigo TAFE on a full-time and part-time basis.[86] I find that the plaintiff has the aptitude and capacity to undertake such training.
[86]DCB 100
293I accept the opinion of Dr Barton that each of the identified roles is light or sedentary employment. Each of the proposed jobs are within the plaintiff’s capacity and suitable. I find they would allow her to change posture frequently.
294I find that the plaintiff has the aptitude to work in each of the identified roles. She has some prior experience which will assist in undertaking those jobs. After appropriate training or on-the-job training (as necessary), I find the plaintiff would be capable of performing each role.
What would the plaintiff earn as a receptionist, admissions clerk, and pathology collector?
295I accept the earnings figures in the Recovre reports.
296I find that if the plaintiff worked 20 hours a week as an admissions clerk, she would earn $539 per week gross.[87]
[87]DCB 106 and 177
297I find that if the plaintiff worked 20 hours per week as a receptionist, she would earn $520 per week gross.[88]
[88]DCB 109 and 173
298I find that if the plaintiff worked 21 hours per week as a pathology collector, she would earn $504 per week gross.[89]
[89]DCB 116 and 176
Do the identified suitable employment options exist in the plaintiff’s locality?
299I must also consider whether any of the identified roles exist in the plaintiff’s locality.[90] I bear steadily in mind that the plaintiff bears the onus of establishing that she satisfies the loss of earnings tests, but there is an evidentiary onus upon the defendant.
[90]State of Victoria v Rattray [2006] VSCA 145, [15]-[18]
300The plaintiff submitted that some of the specific jobs assessed by Recovre were in Collingwood and Epping, and that evidence should therefore be excluded from consideration. I reject that submission. Those worksite assessments were presented as examples of the duties and tasks to be undertaken by receptionists and pathology collectors.
301The plaintiff lives in Heathcote which is located in the greater Bendigo area.[91] Bendigo is 40 kilometres, or a 45-minute drive, from Heathcote.[92]
[91]DCB 172
[92]PCB 330
302The Flexi Personnel report noted that “from a recruitment perspective, as a general rule regional areas are unable to offer the same employment opportunities as their city counterparts.”[93] There was no other information in that report as to roles that were or were not in existence within the plaintiff’s locality.
[93]PCB 330
303The Recovre vocational assessment reports relevantly provided labour market information for the roles of receptionist, admissions clerk, and pathology collector in the City of Greater Bendigo. That evidence reveals that each of those roles exists in the City of Greater Bendigo.[94]
[94]DCB 173, DCB 176, and DCB 177
304I am satisfied that each of those roles exist within a 45-minute drive of the plaintiff’s home.
305I find that work opportunities within a 45-minute drive are within the plaintiff’s capability.
306If the plaintiff worked 20 or more hours a week as a receptionist or admissions clerk or 21 hours a week as a pathology collector she would exceed the 60 per cent figure.
Conclusions regarding the claimed loss of earning capacity consequences
307The plaintiff has not satisfied her onus to establish that she has a loss of earning capacity of 40 per cent or more, or that she will continue permanently to have such a loss either by reason of the impairment of her right lower limb, or the impairment caused by the aggravation of her cervical spine.
308I find that the plaintiff does satisfy the narrative test with regard to her right lower limb impairment consequences because of her incapacity for pre-injury employment which she very much enjoyed.
Whether the impairment consequences of the relevant body functions satisfy the “serious injury” threshold.
Right lower limb
309The defendant did not formally concede this issue but made limited submissions upon it.
310No issue was taken by the defendant regarding permanence.
311I find that the impairment consequences of the plaintiff’s right lower limb injury are more than significant or marked and at least very considerable. In short compass, I find that the plaintiff suffers the following impairment consequences of right lower limb injury:
(a) She has pain requiring Nurofen Plus most days;
(b) She is no longer able to undertake her pre-injury employment as a horse supervisor, which she very much enjoyed;
(c) She has some ongoing instability in her right knee;
(d) Her ability to kneel, squat, twist, or pivot on her right leg and in going up and down stairs is impacted. She has a reduced ability to walk on uneven surfaces.
312I take into account the fact that the plaintiff is young and will continue to experience the above impairments for many years to come.
Aggravation injury to the cervical spine
313Given my finding regarding the right lower limb impairment, it is unnecessary to decide the issue of pain and suffering in relation to the aggravation injury to the cervical spine.
Conclusion
314The plaintiff has leave to seek pain and suffering damages in relation to the injuries she sustained in the incident on 1 February 2017.
315The plaintiff has not satisfied her onus regarding loss of earning capacity in relation to the claimed right lower limb impairment or the claimed aggravation injury to her cervical spine.
316I will hear the parties on the issue of costs.
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