Bentihavas v VWA
[2020] VCC 469
•30 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01565
| VICKI BENTIHAVAS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-2 April 2020 | |
DATE OF JUDGMENT: | 30 April 2020 | |
CASE MAY BE CITED AS: | Bentihavas v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 469 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to spine – psychiatric injury - pain and suffering – loss of earning capacity – childcare worker – course of employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Judgment: Leave granted to the plaintiff in relation to injury to spine only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick Ms N Crowe | Zaparas Lawyers |
| For the Defendant | Mr S Smith QC Ms M Tsikaris | Russell Kennedy Lawyers |
HER HONOUR:
1 This is an application under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act2013 (‘the Act’) for leave to issue proceedings for damages for economic loss and pain and suffering. The plaintiff, Ms Vicki Bentihavas, applies under sub-paragraphs (a) and (c) of the definition of ‘serious injury’ in s 325(1) of the Act in respect of a physical injury to the spine and a psychiatric injury flowing from work with Early Years at Phoenix Park Inc (‘the employer’) as a childcare worker between 2009 and 2016.
2 The plaintiff, who is 46 years old, lives with her parents and brother. After completing Year 12, she lived at home and worked in childcare between 1995 and 1998.[1] After living in Greece for five years, where she married and had a daughter, she returned to Australia, separated from her husband, and resumed living with her parents (along with her daughter). She resumed working in childcare in 2004. She obtained a Certificate III in childcare from Swinburne University in 2008. She enjoyed dancing, reading and going out for coffee with her friends.[2]
[1]Plaintiff’s affidavit sworn 20 December 2017 at Plaintiff’s Further Amended Court Book (‘PCB’), p 8.
[2]Ibid, [8].
3 She commenced full-time employment with the employer as an early childhood educator in late March 2009. Her duties involved repetitive bending, lifting children, setting beds out on the floor, lifting furniture, moving external play equipment, and washing dishes.
4 In November 2009, she saw her general practitioner Dr H.B. Winfield with back pain. In 2011, she dropped back to four days of work per week.[3] She saw Dr Winfield intermittently in the years 2011, 2012, 2013, 2014 and 2015 complaining of pain, variously in the back, neck and left shoulder
[3]There is a credit issue regarding the reason given to the employer for the request for that reduction in hours, and I return to this issue below at paragraph 22.
5 Radiological investigation of the lumbar spine in April 2013 was normal, but CT and MRI scans of the cervical spine in March 2015 and February 2018 confirmed degenerative disc disease and disc protrusions at C4/5 and C6/7. Her pain continued and she ceased work in April 2016 when no alternative duties could be found for her. Even though she was not working, her symptoms continued to worsen. She had a few sessions of physiotherapy and hydrotherapy but found that they worsened her condition. She was assessed as suitable to undertake a pain management program but did not undertake it. She was referred by Dr Winfield for psychological counselling and has been seeing a psychologist, Ms Amanda Wallis, since July 2018 on a monthly basis, for treatment for depression.
6 As at 1 April 2020, the plaintiff stated that her neck and lower back pain continues, that it increases with activity, and that it travels into both hips and legs.[4] She also has pins and needles in both shoulders and arms, and numbness in her arms and hands. The pain is worst in her neck, back and shoulders. She struggles to lift her arms. She feels very depressed, cries most days, and has panic attacks about once or twice a week which can last for hours. She has poor memory and concentration. She is frustrated because of the pain and limitations. She continues to have difficulty walking, sitting and standing for prolonged periods. She constantly moves around trying to find a comfortable position. The pain causes her to wake at night. She is tired during the day and often lies down in the afternoon. The family cooks most of her meals and her parents take care of the house. She washes the dishes every few days but is in more pain afterwards. She struggles to see her parents worrying about her.
[4]Plaintiff’s affidavit sworn 1 April 2020 at PCB, p 178.
7 In relation to the application under sub-paragraph (a) of the definition of ‘serious injury’, the plaintiff says that, as a result of her employment with the employer, she has a permanent impairment of the spine (neck and back) which causes interference with her domestic and recreational activities; interferes with her sleep; limits her sitting, walking and standing tolerances; requires medication in the form of Mobic and Panadol Osteo; and, on the evidence of Dr Richard Sullivan,[5] renders her unable to work in suitable employment for more than six to 12 hours per week. Even if the evidence of Dr Joseph Slesenger[6] is preferred over that of Dr Sullivan, and the plaintiff is found to be physically capable of suitable employment for up to 16 hours per week, the plaintiff submits that the court should accept that she intended to return to full-time work in childcare by 2018. On this basis, her without injury gross per annum earnings would have been $46,503 (and not the $41,130 she earned in the financial year ending 30 June 2015, as contended by the defendant); 60% of that figure is $27,902 per annum (or $537 per week – and not $474 as claimed by the defendant); and the most she could earn in the positions nominated by the defendant as suitable employment is $484 per week. On these bases, it is submitted that the plaintiff should succeed in establishing serious injury consequences, both in terms of pain and suffering and loss of earning capacity.
[5]Interventional pain specialist and specialist anaesthetist.
[6]Specialist occupational physician.
8 As an alternative to the above submissions, the plaintiff says that she has suffered a serious injury under sub-paragraph (c) of the definition of ‘serious injury’, in that she has a major depressive disorder secondary to her organic impairment and the chronic pain and physical limitations flowing from that organic impairment. The plaintiff relies on the opinions of her treating psychologist, Ms Wallis, and the assessing psychiatrist, Dr Nicholas Ingram, to the effect that her psychiatric impairment severely restricts her day-to-day psychological functioning and prevents her from working in any capacity in either her pre-injury duties or any alternative employment.
The issues
9 The defendant relies heavily on credit issues which it says emerge from the video surveillance footage shown in court, and particularly from the plaintiff’s responses to questions in cross-examination about that footage. The defendant says that the plaintiff’s ability to walk around, sit for 45 minutes, get on and off chairs with apparent ease, talk and laugh with relatives and shop owners, as shown on the footage, is inconsistent both with the plaintiff’s testimony and with the accounts given to various doctors in relation to the extent of her pain and restrictions, her social isolation, and her psychological state. The defendant also says that there are inconsistencies in the plaintiff’s testimony about the reasons for her reducing her work hours. The defendant says that when these matters concerning her reliability and credibility are taken together with the non-organic features of her presentation to all treating and examining specialists, it is difficult to reach satisfaction that there is an organic basis for the claimed physical impairment of the spine and any physical incapacity for work. For this reason, the defendant urges the court to accept the opinion of Dr David Barton[7] to the effect that the plaintiff is physically capable of working full-time.
[7]Occupational physician.
10 Even if there is some organic basis to the current impairment of the spine, the defendant says that given the plaintiff’s failure to undertake the pain management program recommended by Dr Olivia Ong,[8] Dr Winfield, Dr Slesenger, Ms Amy Shipperd,[9] and Dr Sullivan, the court cannot be satisfied that her impairment is permanent.
[8]Pain medicine fellow.
[9]Physiotherapist.
11 In the event that the court is satisfied that there is an organic component to the impairment of the spine (particularly the cervical spine), and that it is permanent, the defendant says that the appropriate indicator of the plaintiff’s without injury earnings is what she earned in the financial year ending 30 June 2015, namely $41,130 gross.[10] 60% of this figure is $24,678 per annum or $474 per week. The defendant says that given the plaintiff’s less than full-time work history prior to her injury, her claim that, but for her injury, she would have returned to work full-time by October 2018, is fanciful.
[10]Defendant’s Statement of Calculation of Loss of Earning Capacity.
12 The defendant says that if the plaintiff is found capable of working 16 hours per week as a production clerk or stock clerk, she will fail to make out her claim in relation to loss of earning capacity.[11] The defendant says that Dr Slesenger’s opinion should be preferred over that of Dr Sullivan because Dr Slesenger is an occupational therapist. Dr Slesenger opined that the plaintiff might over time increase her hours to a maximum of 25 hours per week, and is capable of undertaking nine of the 11 employment options outlined in the Recovre report. If the court defers to Dr Slesenger’s opinion in that respect, the plaintiff will fail on her loss of earnings claim in relation to each of those nine employment options.
[11]Similarly, the defendant says that the plaintiff’s claim in relation to loss of earning capacity will fail if she can work 20 hours per week as a despatch clerk, warehouse clerk, stock/order clerk, general clerk, administration assistant, customer service officer, injury clerk, information officer, or welfare support worker.
13 In relation to the application under sub-paragraph (c) of the definition of serious injury, the defendant says that the plaintiff has refused to take a therapeutic dose of antidepressants in spite of a diagnosis of depression, and notwithstanding the recommendations from her treating general practitioner and other experts, that doing so is likely to ameliorate her condition. The defendant relies on the fact that while Ms Wallis and Dr Ingram each concluded that the plaintiff currently has no work capacity given her psychiatric condition, they did not opine that this incapacity is permanent.
The hearing
14 The plaintiff swore four affidavits in support of her application. At the hearing, she adopted the contents of those affidavits and was cross-examined. No other witnesses were called. The parties tendered the material relied upon. I have considered all of the evidence as well as the submissions made by counsel.
The plaintiff
15 In her first affidavit, sworn on 20 December 2017,[12] she stated that she had reduced her hours in 2011 because of her back pain.[13] As at the date of swearing the affidavit, she was suffering constant, sharp, stabbing pain in the lower back, which caused restrictions in bending, lifting, sitting, standing, and walking for long periods of time. Any activity increased her pain. Her sleep was disturbed by pain and she sometimes needed help getting out of bed and getting dressed in the morning. She also had constant neck pain as well as headaches a few times a week. She had trouble getting on and off chairs, and difficulty washing dishes, as these activities aggravated the pain in her neck and particularly her back. She was no longer doing cooking or vacuuming, or lifting heavy shopping items. She was only able to walk for short distances before needing to sit down to rest her back. She stated that she could only walk about 500m without increasing her back pain. She usually watched television standing up. She could not sit for a long time to read. She was no longer having coffee with friends because she was not able to sit for a prolonged period. She was keeping in touch with her friends by telephone but had become isolated and socialised less than she used to. She could no longer go dancing in the city due to her back pain. She could no longer walk regularly, as she used to do to keep fit, because of her back pain. She had become depressed by her pain and her inability to lead a normal life, as well as her inability to work. She had only ever wanted to work in childcare and was upset that, due to her injuries, she would no longer be able to return to this work. She was also upset at having to rely on her parents financially, physically and emotionally. She had hoped to return to work on light duties but was told that none were available for her. Her only work experience was in childcare, but she was now unable to sit or stand for long periods of time, or bend repetitively or lift heavy weights.
[12]PCB, p 7.
[13]PCB, p 9.
16 In her second affidavit sworn 18 October 2018,[14] the plaintiff said that she continued to see Dr Winfield monthly and was taking Mobic for her pain as well as wearing a lumbar support. She was attending a psychologist, Ms Wallis. She had found it difficult to get to the pain management course in Caulfield because of the long drive and the inconvenience to her father in having to drive her there and back.
[14]PCB, p 34.
17 She continued to suffer neck and back pain with flareups associated with activity. Her back pain radiated into her leg and she sometimes walked with a limp because of her back pain. She needed to lie down in the afternoon to rest her back. She also suffered stabbing pain in her neck which radiated into her shoulders and limited her neck movement, with frequent numbness in the arms.
18 At paragraph 17 of her second affidavit, she stated that her statement in her first affidavit[15] at paragraph 12 to the effect that she reduced her hours because of her back pain, was incorrect, and that, in fact, she reduced her hours because she was a single mother and wanted to take her daughter to school in the morning. She stated that in about 2014, she asked to be moved from the toddlers’ room to the older children’s room to have a break from the bending and lifting.
[15]PCB, p 9 [12].
19 She stated that it was her intention to increase her hours back to full-time as her daughter grew older and needed her less. As at 2018, her daughter was 16 years old and independent, and the plaintiff believed that had she not been injured she would have been working full-time in childcare. She stated that her computer skills were limited and that she had never worked in an office.
20 In a further affidavit dated 8 November 2019,[16] the plaintiff stated that that she had been seeing Ms Wallis every month or so since having been referred to her by her general practitioner for treatment for depression. In December 2018, she was prescribed an antidepressant by Dr Winfield, nortriptyline,[17] but only took it for six weeks or so and then stopped because of its side-effects and because she did not see any improvement. She was reluctant to try any other antidepressant medication because of her concern about possible side-effects, the problems she has with her stomach, and her concern that she would not have any improvement with the medication.
[16]PCB, p 39.
[17]10mg.
21 In her final affidavit sworn 1 April 2020,[18] the plaintiff deposed that she saw Dr Winfield approximately every four to six weeks and Ms Wallis about once per month. She was taking 7.5mg of Mobic daily, Panadol Osteo as needed, and Nexium at night. She described ongoing neck and lower back pain which woke her at night. She also described difficulties lifting her arms, walking, sitting and standing for prolonged periods. She stated that she was struggling emotionally.
[18]PCB, p 178.
22 In cross-examination, the plaintiff insisted that she had written a letter to the employer in which she sought a reduction of her hours due to her back pain.[19] She then agreed that she changed her evidence contained in her first affidavit after seeing a copy of the letter from her to the employer annexed to the affidavit of Ms Shirley Accheni.[20] Ultimately, her evidence was that she had two reasons for seeking the reduction in hours: one was her chronic back pain and the other was to enable her to take her daughter to school.[21]
[19]Two letters from the plaintiff regarding a reduction of work days were tendered in this matter. In the letter in the Defendant’s Court Book (‘DCB’), which is undated but signed by the plaintiff, the plaintiff requests to work four days per week because she wants to take her child to school each morning. In the letter in the PCB, which is dated 27 October 2011 but unsigned, the plaintiff requests to work three days per week due to ‘chronic upper and lower back pain’. There is no material before the court suggesting the plaintiff worked three days per week.
[20]See the affidavit of Shirley Accheni at DCB, p 2, and the letter from the plaintiff at DCB, p 88.
[21]Transcript of Proceedings, Bentihavas v VWA (County Court of Victoria, CI-18-01565, Judge Davis, 1-2 April 2020) (‘T’) 52.21.
23 In relation to the activities shown on the surveillance footage, she gave a series of inconsistent explanations for the reasons for the outings.[22] She agreed that she was able to take the bus, sit at the shopping centre, walk around, talk to people, and have coffee with her mother and aunt; but insisted that this happened only once per week or so, that she suffered pain when undertaking those activities (as demonstrated by the moments when she held her back), and that she remained depressed even though she was able to interact with people and smile. She agreed that although she told doctors that she could only sit for seven to eight minutes, that on the surveillance footage, and in various consultations, she sat for 25 minutes or more. Her reason for not engaging in pain management was that she had been told that her preoccupation with this litigation would be an obstacle to its effectiveness. She denied exaggerating when she told Ms Wallis that she only leaves home to attend appointments. Her explanation for not taking Endep as prescribed by Dr Winfield was that she had tried antidepressant medication, did not like its side effects, was afraid of the side effects of Endep that were listed in the information accompanying the medication, and had a fatty liver.[23]
[22]See for example, T20.25, T20.26, T23.15, T25.26, T28.8, T31.16, T32.14, T32.24 (reason for going to shopping centre on 13 November 2018).
[23]T42.26.
Other lay evidence
24 The plaintiff’s mother swore an affidavit on 1 April 2020[24] in which she said that the plaintiff used to be bubbly and social, and would often go out with friends. She also loved dancing, she used to help her mother with housework and the shopping, and they would often go walking together. She stated that the plaintiff would come home from work for the employer in pain. Now, the plaintiff spends a lot of time at home and when her mother tries to get her to go out with friends or go walking with her, the plaintiff cries and says that she cannot because she is in pain.
[24]PCB, p 181.
25 The defendant tendered affidavits from four of the plaintiff’s co-workers at the employer. Shirley Accheni stated[25] that she was a manager at the employer from 1986 and that the plaintiff never reported work-related back pain to her until May 2016. She stated that she never saw the plaintiff in pain or showing any sign of restriction or inability to perform her duties. She denied that the plaintiff reduced her days to four days per week because of low back symptoms in 2011, and stated that in 2011 the plaintiff instead submitted a letter requesting a reduction from five days to four days per week to take her daughter to school.
[25]See affidavit of Shirley Accheni affirmed on 2 October 2018 at DCB, p 2.
26 Amy Bhojak stated[26] that the plaintiff never told her she was experiencing back pain at work, and that she never saw her in pain or demonstrating any restrictions or difficulty performing her duties at work.
[26]See affidavit of Ami Bhojak sworn on 2 October 2018 at DCB, p 4.
27 Simone Guarino stated[27] that she recalled a conversation with the plaintiff in which the plaintiff told her that she had worked in infant care for many years prior to working at the employer and that she could never go back to working with infants because she injured her back during that time. Ms Guarino stated that she never saw the plaintiff in pain or exhibiting restrictions regarding her back.
[27]See affidavit of Simone Guarino affirmed on 2 October 2018 at DCB, p 6.
28 Dhammika Millatiya stated[28] that she never saw the plaintiff in pain, struggling to perform her duties at work.
[28]See affidavit of Dhammika Millawitiya affirmed 2 October 2018 at DCB, p 7.
Radiology
29 A x-ray of the lumbar spine performed on 3 April 2013 was reported as normal.[29]
[29]PCB, p 166.
30 A CT of the cervical spine performed on 3 March 2015 was reported with the following conclusions:
1. Moderate cervical spondylosis.
2. Posterior marginal and uncovertebral osteophytes with posterocentral disc protrusion contributing to moderate narrowing of spinal canal and right neural foramen at C4/5 level. There is mild narrowing of the left neural foramen.
3. Mild narrowing of canal and right neural foramen also noted at C5/6 and C6/7 levels.
4. There is a small posterocentral disc protrusion at C6/7 level. Mild narrowing of the spinal canal in that region.[30]
[30]PCB, p 168.
31 A MRI of the cervical spine performed on 21 February 2018 was reported with the following conclusions:
1. Multilevel degenerative disc disease with no evidence of significant central spinal canal stenosis. The small linear hyperintensity in the central aspect of the spinal cord in the lower cervical spine is consistent with developmental persistence of the central canal of the cord rather than representing a true syrinx.
2. C4/5: Degenerative disc disease with a small broad-based posterior central disc protrusion, eccentric to the right, contacting but not compressing the spinal cord. Disc/osteophytic neural foraminal compromise is more pronounced on the right side and is consistent with compression on the exiting C5 nerve roots.
3. C6/7: Small broad-based right posterocentral disc protrusion extending into the neural foramen on the right side, consistent with compression of the exiting right C7 nerve root. Small osteophytes are also noted at the uncovertebral joints at this level.[31]
[31]PCB, p 171.
32 A MRI of the lumbar spine performed on 21 February 2018 was reported as normal.[32]
[32]PCB, p 173.
Surveillance footage
33 Extracts of surveillance[33] of the plaintiff undertaken on 8 November 2018,[34] 13 November 2018[35], 20 November 2018[36], 25 November 2019,[37] and 29 November 2019[38] were shown in court.[39]
[33]Exhibit 2.
[34]About eight seconds.
[35]About 18 minutes.
[36]About 12 minutes.
[37]About three and a half minutes.
[38]About 13 and a half minutes.
[39]Exhibit 2 was not provided to any experts for comment and does not include the footage referred to by Dr Slesenger, Dr Ingram, Dr Sullivan and Dr Winfield dated 8 March 2018. The footage dated 8 March 2018 was not played, or tendered, at the hearing before me.
34 In the footage taken on 13 November 2018, the plaintiff is seen standing at the bus stop, getting off the bus about 15 minutes later and entering a shopping centre. At the shopping centre, she met her aunt and mother, sat at a café with them for around 45 minutes, and then visits Kmart before going to the carpark.
35 In the footage taken on 20 November 2018, the plaintiff is seen walking around Waverly Gardens shopping centre with her mother at 11:35am. At one point she sat with her aunt at a juice bar. She then walked around and returned to again sit with her aunt. When walking, she sometimes had her hands on the small of her back. At about 1:30pm, she bought some goods and then sat at a salon for a period of time waiting for her mother. At around 2:09pm, she is seen getting out of the family car at home.
36 In the footage dated 25 November 2019, the plaintiff is seen getting in and out of the family car, walking into the family’s garage, walking on a footpath near a medical clinic, and checking the letter box. She is pictured holding her lower back.
37 In the footage on 29 November 2019, the plaintiff is seen arriving at a shopping centre in a car with her mother at 12:41pm. She is seen walking in the shopping centre, using an ATM, looking at clothes with her mother, sitting, talking to a lady in a hearing shop, and looking at various items by herself. She is filmed at the shopping centre until 2:24pm, when she went home with her mother. She is filmed arriving home and getting out of the car at 2:41pm.
Reports of treating practitioners
38 The plaintiff relied on six reports from Dr Winfield, the plaintiff’s treating general practitioner.[40] Dr Winfield reported on 27 June 2016 that he saw the plaintiff on 18 April 2016 when she presented with a history of right hip pain for several weeks and a report of lower right back pain.[41] He had seen her on a number of occasions for back pain commencing on 16 November 2009.[42] On 5 December 2013 he noted a report by the plaintiff that she did a lot of bending and lifting at childcare and that she was worse with physiotherapy. There were further complaints of low back pain in January and November 2014, and in April 2016. He noted on 25 November 2014 that she also complained of neck pain which had become chronic.[43] On 10 February 2015 she complained of neck and left shoulder pain.
[40]PCB, p 43-63.
[41]PCB, p 46.
[42]Including in September 2011; December 2012; and February, April, June and September and December 2013.
[43]PCB, p 55.
39 In May 2016, the plaintiff complained of neck and back pain, and Dr Winfield suggested restrictions including that she not lift children or handle equipment and lift no more than 5kg, but as far as he knew that arrangement had not been put in place by the employer.[44] On 25 May 2016 the plaintiff was in hospital for two days with neck pain.[45] In June 2016,[46] he recommended physiotherapy and hydrotherapy even though the plaintiff told him that physiotherapy had not helped her in the past. He noted that the plaintiff would be unable to return to her normal duties with the employer and that it appeared that alternative duties were not available there. He recommended that she retrain in a more sedentary job.
[44]PCB, p 47.
[45]PCB, p 55.
[46]PCB, p 46.
40 In late January 2017,[47] Dr Winfield recommended an MRI of the lumbar spine. He noted that she continued to complain of lower back pain and pain on neck movement, and stated that he was unable to predict progress although he felt hopeful that with a proper physiotherapy program she may be able to return to some form of duties, preferably more sedentary.
[47]PCB. P 51.
41 In February 2018,[48] Dr Winfield noted the MRI results and recommended that the plaintiff attend a pain management program to assist with her chronic neck and back pain.
[48]PCB, p 57.
42 On 13 September 2018,[49] Dr Winfield noted that the plaintiff walked with a limp, favouring the right side, and that she complained of ongoing neck, shoulder and lower back pains. At home, she alternated between sitting, standing and walking. She was washing dishes but not doing cooking or cleaning. She was going to the shops approximately weekly but was not doing supermarket shopping. She complained of symptoms of depression and anxiety. She found that the Caulfield Pain Clinic was too far from home for her, and that previous physiotherapy and hydrotherapy had been of little benefit to her.
[49]PCB, p 58.
43 Dr Winfield concluded that the plaintiff was permanently incapacitated for her pre-injury duties due to her back pain, and that he knew of no suitable duties for her at that time. He concluded in relation to the neck injury, that she was permanently incapacitated for her pre-injury duties due to her neck pain and limitation of movement of her neck and arms, and that there were no suitable duties for her at that time. Finally, he noted that she suffered significant symptoms of depression and anxiety which required psychiatric treatment.[50]
[50]PCB, p 62.
44 On 9 October 2019,[51] Dr Winfield noted that on 11 December 2018 he had prescribed 10mg of nortriptyline for the plaintiff’s symptoms of depression. He also noted that a referral had been made to the Melbourne Pain Group as well as to a psychologist, Ms Wallis, on 25 October 2018. He considered that her neck and back problems were permanent but hoped that she would improve with a multidisciplinary pain management course. As at the date of the report, he considered that she was unable to perform her pre-injury duties due to her neck and back pain and that she was unlikely to be able to perform suitable duties due to her psychiatric condition.
[51]PCB, p 63.
45 On 14 November 2017,[52] the plaintiff’s treating physiotherapist, Ms Shipperd, reported taking a history of initial injury at work in 2009 from repetitively lifting toddlers. The plaintiff reported the pain at worst as 10 out of 10 and at best as six or seven out of 10. She also reported bilateral pins and needles in her arms and legs, and numbness along her right side. Ms Shipperd diagnosed non-specific chronic neck and back pain. Given the irritability of her symptoms and deconditioning, Ms Shipperd felt that the plaintiff had no work capacity. She considered that the plaintiff would benefit from a pain management program, but that her prognosis might be negatively impacted by the chronicity of her symptoms, poor coping strategies, poor self-efficacy, significant psychosocial factors and negative beliefs regarding her incapacity for work.[53]
[52]PCB, p 71.
[53]PCB, p 74.
46 Dr Ong, pain management fellow, assessed the plaintiff at Caulfield Hospital on 13 September 2017[54] for a pain management program. She noted that the plaintiff walked slowly with a symmetrical gait and complained of “myofascial tenderness in the neck, upper back and lower back. There were widespread tender points in 19 out of 19”.[55] She noted that the plaintiff was unable to perform some movements due to fear of pain and was avoidant in all ranges of motion in the lumbar spine and cervical spine. Dr Ong found no true neurological weakness in the lower limbs. She recommended the plaintiff commence taking Lyrica as well as Panadol Osteo and referred her for a team assessment.
[54]PCB, p 64.
[55]PCB, p 66.
47 She noted that the plaintiff had no significant history of mental health difficulties, but that she had “unhelpful pain cognitions with fear avoidance, low self-efficacy, high external locus of control and catastrophic thinking about her back and neck”.[56] Dr Ong felt that she met the criteria for major depressive disorder.
[56]Ibid.
48 Upon review on 9 January 2018,[57] Dr Ong noted complaints of continued neck pain, low back pain, leg pain, and chronic widespread musculoskeletal pain. The plaintiff reported that she remained inactive and passive during her flares of pain. Although assessed as suitable to attend the pain management program, the plaintiff reported that fatigue, travel issues and lack of interest were barriers to her attending the program. She expressed an interest in attending a program closer to home.
[57]PCB, p 68.
49 Ms Wallis, psychologist, reported on 6 August 2018[58] that she had provided five sessions of counselling to the plaintiff since 7 July 2018. She diagnosed the plaintiff with chronic severe depression, chronic mild anxiety and severe post-traumatic stress disorder (‘PTSD’). Her symptoms included loss of interest and motivation to do anything, sleep disturbance, and impaired thinking and concentration. She also complained of chronic back pain which required her to get up every few minutes to walk around. She found it very difficult to leave the house due to her psychiatric state. Her parents did the weekly shopping, ran errands, and took her to medical appointments. Her daughter also assisted her. She reported not leaving the home except to attend appointments and that she could not do that without support. She was socially isolated and required the daily support of her family. She found it difficult to organise herself and make decisions. Ms Wallis concluded from the history given to her by the plaintiff that she had suffered depression, anxiety and PTSD over her adult life and had not been fit for work at various times. She did not have the capacity to concentrate or maintain attention to compete in a competitive work environment. She also suffered from chronic pain.
[58]PCB, p 79.
50 In her report dated 28 September 2018,[59] Ms Wallis noted a history from the plaintiff of suffering chronic pain due to the constant repetitive handling of babies and infants during the course of her employment with the employer. She noted that the plaintiff had ceased working in 2016 because of her chronic pain, depression, anxiety and PTSD. Ms Wallis concluded that the plaintiff’s prognosis might improve if she were to complete a pain management program to deal with the chronic pain. In addition, her psychological condition would likely improve through ongoing psychological intervention to help her learn to cope with her pain. At the time of writing her report Ms Wallis noted that the plaintiff was better psychologically than she had been when first seen in 2016 and that, with continued psychological intervention, her psychological condition could improve over the next two years. However, she concluded that the plaintiff was currently unfit on psychiatric grounds to undertake any work.
[59]PCB, p 82.
51 On 13 November 2019,[60] Ms Wallis confirmed the diagnoses made previously and reiterated that in spite of having improved psychologically, the plaintiff was not fit for any work. Ms Wallis considered that the prognosis would be more favourable if her physical injury were fixed, and that her psychiatric condition would improve after she had resolved the current litigation and “found other meaningful activity in her day to day life”.[61]
[60]PCB, p 89.
[61]PCB, p 91.
Vocational assessment reports
52 On 4 April 2018, Robyn Willet, employment placement consultant, and Janette Ash, occupational therapist, of Recovre provided a Vocational Assessment Report[62] (‘the Recovre report’) which identified the following suitable job options based on the plaintiff’s education, work experience and transferable skills: production clerk; despatch clerk; warehouse clerk; stock clerk; general clerk; administration assistant; receptionist; customer service officer; inquiry clerk; lifestyle attendant (with retraining); and welfare support worker (with retraining).
[62]DCB, p 35.
53 On 25 September 2018,[63] Ms Mandy Morgan, human resources consultant, of Flexi Personnel, assessed the plaintiff’s suitability to undertake the positions set out in the Recovre report. She concluded that, due to her lower back injury, and subsequent pain and restrictions, the plaintiff was permanently unable to undertake any of the positions identified as suitable in the Recovre report.
[63]PCB, p 151.
Medico-legal reports concerning the impairment of the spine
54 Dr Reza Sabetghadam, occupational physician, reported to the defendant’s solicitors on 9 June 2016[64] that the plaintiff complained of pain in both shoulders, neck, lower back and legs. She gave a history of lower back pain commencing in 2009 with the gradual development of pain in different parts of the body. In spite of having ceased her employment six weeks prior to the consultation, she stated that her pain had not changed and was still 10 out of 10 on the visual analogue scale. She was taking intermittent painkillers. She appeared to have low mood and to be significantly pain focused. In spite of reporting an ability to stand and sit for 10 minutes only, the plaintiff was able to sit for 40 minutes during the consultation before asking to stand. She exhibited grimacing and pain behaviour on examination, and declined to participate in squatting or forward flexion of the lumbar spine. She participated in range of motion movements of the cervical spine but exhibited grimacing and pain behaviour, with tender points on palpation over the shoulders, supraspinatus muscles and levator scapulae.
[64]DCB, p 9.
55 Given the widespread pain experienced in different parts of the body, and the doctors view that pain perception and tolerance are purely subjective, Dr Sabetghadam was not able to reach any specific diagnosis, nor any conclusion as to whether her condition was work-related. He recommended review by a psychiatrist for a possible somatisation disorder, and by a rheumatologist to rule out any rheumatological condition. He considered that due to her subjective pain perception, tolerance, fatigability and motivation, she was unable to work at all but could not say how long that incapacity would last.
56 Dr Barton, occupational physician, reported to the defendant’s solicitors on 6 March 2017[65] that when examined, the plaintiff demonstrated a “profound degree of illness behaviour”[66] throughout the consultation. She walked slowly with a shuffling gait and grimaced, gasped and complained of pain while holding her back. On examination of her back, there was moderate tenderness extensively involving the whole of the spine up to her neck. There were limitations in forward flexion and straight leg raising, but the plaintiff was able to sit upright on the examination couch. Examination of the neck also showed much tenderness throughout, with movements on formal testing being about one quarter of the normal range, although, when distracted the plaintiff demonstrated a far greater range in a free and easy way. Reflexes were normal in the upper and lower limbs. Muscle power was globally reduced in both arms and both legs, which “was clearly feigned and inconsistent with her ability to walk”. Sensation to light touch was altered and described as numbness in both arms and both legs.[67]
[65]DCB, p 22.
[66]DCB, p 24.
[67]DCB, p 25.
57 Dr Barton concluded that it was possible that while she was working she had some mild work-related symptoms, but did not consider that her work activities were responsible for any ongoing physical problem, given that even though she had stopped work two years earlier, she reported her problems as having continued to get worse. Dr Barton noted a number of features of abnormal illness behaviour: a slow shuffling gait; the increase in reported symptoms with axial loading; the weakness in the arms and legs which had no neurological basis; the contrived grimacing and complaints of pain and holding onto her back during assessment; and the discrepancy between her limited straight leg raising and posture noted at other times. Dr Barton considered that there was a functional basis to her complaints. He did not consider that there was an organic basis to her pain, and considered that she was fit to work full-time either in her pre-injury work or in suitable employment.
58 On 13 April 2018,[68] Dr Barton indicated that he had reviewed the Recovre report and the range of suitable employment options suggested in it, and considered that there was no physical reason why the plaintiff could not undertake these jobs full-time.
[68]DCB, p 33.
59 Dr Slesenger, occupational physician, reported to the plaintiff’s solicitors on 31 January 2017,[69] that he received a history from the plaintiff of repetitive manual handling tasks at work, over time causing lower back, mid-back and neck pain. Symptoms radiated to her upper and lower limbs, and the pain had gradually increased. She reported that her mid-back and neck symptoms had been less intense and that the pain in her lower back was moderate to severe. She reported having some depression and anxiety as a result of her injury. She was taking Voltaren, Nurofen and Panadol Osteo. She was able to perform the activities of daily living apart from occasionally needing help with trousers, shoes and socks. She was able to do light domestic tasks such as some light cleaning and cooking, and attending shopping outings, but avoided heavy lifting. She reported enjoying dancing in the past but no longer participated in any sports or hobbies. She reported that in 2012 she reduced her days of work to four days per week and ceased work in April 2016.
[69]PCB, p 97.
60 Dr Slesenger noted the plaintiff sat during the consultation without obvious difficulty, but had difficulty getting in and out of the chair, and on and off the couch. She was wearing a lumbar corset. Dr Slesenger noted from the clinical records of her general practitioner that there was a long history of neck and lower back pain dating from as early as 2009, that her symptoms had been consistent and that they had been aggravated by occupational activities. He noted the limited treatment to date, in spite of Dr Winfield’s recommendations.
61 On examination he felt there were a number of non-organic features to her presentation and concluded that there may be a psychogenic element to her presentation. Nonetheless, Dr Slesenger concluded that the current impairment and disability was “at least partially organic”[70] and that, as a result of her employment, the plaintiff suffered a soft tissue injury to her cervical and lumbar spine, and that she subsequently developed a chronic pain disorder. He considered that the clinical records did not disclose a continued complaint in relation to the thoracic spine. He felt there was insufficient evidence to support a diagnosis of fibromyalgia. He recommended a course of physiotherapy, followed by a self-managed exercise program, as well as treatment by a pain specialist. He felt that she was likely to have ongoing pain in the cervical and lumbar spine for the foreseeable future, but that she would be able to return to work performing modified duties and working restricted hours up to 16 hours per week.
[70]PCB, p 106.
62 On 17 September 2018,[71] Dr Slesenger reported a history from the plaintiff of a worsening of her symptoms and an inability to return to work. She reported severe pain throughout the thoracic, cervical and lumbar spine associated symptoms in the upper limbs. She also reported ongoing severe mental health problems with depression and anxiety. She advised that she was able to sit, stand and walk for up to eight minutes, although her functional capacity varied. She was seeing a psychologist and her general practitioner.
[71]PCB, p 109.
63 Dr Slesenger reviewed the recent radiological reports as well as some recent medical reports. He concluded that there was an organic basis to her impairment and disability, but also felt there was a significant psychogenic element to her presentation. He confirmed his previous opinion that, in relation to the cervical and lumbar spine, the plaintiff had sustained soft tissue injuries resulting in chronic pain with radiating features but no evidence of radiculopathy. He remained of the opinion that the thoracic spinal impairment was unrelated to the workplace activities. He considered that she would benefit from a pain management program in that she would see some improvement in her symptoms and associated functional limitations and tolerances. However, he felt that she would be likely to be left with a residual axial spinal impairment that would be likely to impact negatively on her occupational and domestic capacity. He confirmed his previous conclusion that in relation to the lumbar spine and the cervical spine impairments, each taken alone, she retained capacity for work with restrictions for 16 hours per week as a production clerk, general clerk, customer service officer, receptionist, information officer, or welfare support worker, although she would require retraining in relation to some of the proposed roles. He felt that a return to working 25 hours a week in suitable employment would be a “reasonable target”.[72]
[72]PCB, p 121.
64 On 26 February 2020,[73] Dr Slesenger reported similar conclusions with respect to diagnoses of the plaintiff’s impairment. Although he noted ongoing non-organic features, he considered that these were “of limited significance”.[74],[75] He was unable to confirm whether the plaintiff was suffering a chronic pain syndrome, as he considered that this was essentially a psychiatric diagnosis. He opined that, taking into consideration the organic cervical and lumbar spine impairment alone, the plaintiff would, for the foreseeable future, be unable to return to her pre-injury duties, but could return to work performing suitable alternative duties with restrictions for 16 hours per week.
[73]PCB, p 125.
[74]Although he does not explain why.
[75]PCB, p 136.
65 In a subsequent email dated 31 March 2020,[76] Dr Slesenger confirmed that he did not expect a significant change in the plaintiff’s organic physical impairment into the foreseeable future, given her poor response to treatment to date as well as other poor prognostic indicators.
[76]PCB, p 183.
66 Dr Sullivan, interventional pain specialist, reported on 12 December 2019[77] to the plaintiff’s solicitors that the plaintiff presented with chronic multifocal pain. She reported her worst pain as being between the shoulder blades in the intrascapular region. She also reported pain in her sacrum, shoulders, arms and legs. She also reported numbness into arms and legs. She reported her intrascapular pain as being at least seven out of 10 and at worst nine out of 10, at which time she had to stop activities and take analgesic medications. She was walking daily. She had stopped hydrotherapy and physiotherapy because they aggravated her pain. She required help from her daughter to put on socks, shoes, stockings, pants and so forth. Even washing and drying some dishes, and making the bed, tended to aggravate the pain. She reported depression and anxiety in the context of a chronic pain condition. She had stopped taking nortriptyline because of its sedating impact and because she suffered fluid retention. She was constantly tired, only sleeping three or four hours per night. She had attended a psychologist for about 18 months. She reported a walking tolerance of around eight minutes, a sitting and standing tolerance of around 10 minutes, a carrying and lifting capacity of around 1kg, and an increase of pain in her intrascapular region when performing activities above shoulder height.
[77]PCB, p 146.
67 On examination Dr Sullivan noted there was “fairly substantive pain behaviouring with a lot of grimacing…and posturing. She ambulated with a slow gait.”[78] Although she reported that her worst pain was in the intrascapular region, when questioned as to where the pain was, she answered “everywhere”.[79] She had reduced flexion and extension in her lumbar spine. She had reduced lateral flexion and rotation of the cervical spine with these activities aggravating low back pain and/or intrascapular pain. She had generalised sensitivity on palpation throughout her upper limbs, shoulders, and adjacent to the axial spine from the occipital region down to the sacrum. The sensitivity was most noticeable in the intrascapular region.
[78]PCB, p 148.
[79]Ibid.
68 Dr Sullivan reviewed the CT and MRI scans of the cervical and lumbar spine. He opined that the plaintiff was suffering from a chronic pain condition presenting as a generalised bodily pain with two contributors: aggravation of cervical spondylosis, and central sensitisation with the above resulting in chronic neck and intrascapular pain. He considered that the condition arose in the context of her work as a childcare worker. He also diagnosed anxiety and depression.
69 He considered that “there is an organic basis to her pain presentation, but…this is complicated by her psychological comorbidities and a degree of overlay in terms of pain behaviouring at least in the context of her medicolegal presentation”.[80] He concluded that there is “at least a proportion of wholly organic cause…that no doubt contributes towards her functional impairment.”[81] He felt that she was likely to have central sensitisation which would prevent her from returning to pre-injury employment. He considered that the central sensitisation and cervical spondylosis component of the overall presentation has a wholly, or at least predominantly, organic basis and that this pain prevented her from returning to pre-injury employment. He felt that she had a theoretical capacity for employment of a clerical nature between six and 12 hours per week after she had completed a comprehensive pain management program. He commented that “a proportion of her pain behaviouring noted during the medicolegal interview [was] likely to be socio-culturally based, i.e., the desire to characterise the limitations related to the chronic pain condition from her perspective in a more convincing manner”.[82]
[80]Ibid.
[81]Ibid.
[82]PCB, p 150.
70 On 31 March 2020,[83] Dr Sullivan provided a supplementary report in which he confirmed his expectation that the plaintiff’s maximum work capacity would permanently remain between six and 12 hours of light clerical type work.
[83]PCB, p 185.
Medico-legal reports concerning psychiatric impairment
71 Dr Ingram, psychiatrist, reported to the plaintiff’s solicitors on 3 October 2019[84] that the plaintiff gave a history of onset of depressive symptoms in the context of persisting, work-related back, shoulder and lower limb pain.
[84]PCB, p 139.
72 Prior to injuring her back, she told him that she had enjoyed socialising with friends, dancing, walking, reading, and helping her parents with the cooking and cleaning. Since the injury, she had given up all of these activities and now spent nearly all of her time at home, doing very little. She only showered twice a week, although she related this largely to her pain. She no longer felt like being with friends and no longer had any social life. She occasionally watched television and sometimes went walking. Due to her depression, she lost motivation and interest in previous activities and had become much more isolated. She was tearful every day and occasionally felt hopeless. She had poor sleep, partly because of the pain and partly because of the negative thoughts. Her energy was very low, she had poor memory and concentration, and she had completely lost her libido. She also felt anxious a lot of the time and did not like being on her own. She felt safer at home. She did not feel that the psychological treatment she had been having in the previous year had made much difference to her situation.
73 Dr Ingram diagnosed a major depressive disorder secondary to her work-related chronic pain and physical limitations. He felt it was also possible that she had a chronic pain disorder. He felt that the prognosis for her psychiatric condition depended largely on what happened with her pain, although there was a possibility that her depression would improve with treatment with antidepressants. He felt that taking her psychiatric injury alone, her depression was severe enough to prevent her from returning to her pre-injury occupation or to any alternative form of employment, because of the impact of her depression on her motivation, concentration and energy levels. However, if there was a suggestion that the plaintiff was lying about her physical symptoms, this would cast some doubt on the veracity of the complaints in relation to her psychological symptoms.
74 On 19 February 2020,[85] Dr Ingram provided a further report in which he noted the dose of nortriptyline being taken by the plaintiff was not a therapeutic dose, and therefore, it was not surprising that there had been no improvement in her depression. Although, he again noted that a chronic pain disorder is a complex condition with biological, psychological, environmental and cultural factors all contributing to its development, he was happy to accept Dr Sullivan’s conclusion that there is a significant organic component to her pain.
[85]PCB, p 144.
75 Dr Natalie Krapivensky, psychiatrist, provided a report to the defendant’s solicitors dated 27 January 2020.[86] She took a history from the plaintiff that she had probably been depressed for some time, but that she had never been formally diagnosed in the past. Dr Krapivensky noted that the plaintiff exhibited “a fair degree of abnormal illness behaviour intermittently standing and shifting in the chair” and that her “thinking was completely dominated and preoccupied with the effect that pain has had on her life and the fact that, in her view, the pain was caused by her employment as a childcare assistant and that her life has been ruined because the employer did not fulfil her request to work with older children”.[87] Dr Krapivensky found no disorder of thought form, no perceptual disturbance, and normal insight and judgement. Although the plaintiff reported difficulties with memory and attention, she was able to recall various historical features with “accuracy and attention to detail”.[88] She noted that multiple examiners have commented on the plaintiff’s reluctance to engage in physical or psychiatric treatment and that all efforts to do so had resulted in the worsening of both physical and psychiatric symptoms.
[86]DCB, p 78.
[87]DCB, p 83.
[88]Ibid.
76 Dr Krapivensky concluded that the most appropriate diagnosis is that of somatic symptom disorder with predominant pain. However, on the basis that there was a “lack of any objective organic cause for Ms Bentihavas’ pain”, she concluded that the psychiatric condition of somatic symptoms disorder with predominant pain is unrelated to the plaintiff’s employment.[89] Dr Krapivensky suggested that the plaintiff would benefit from treatment with antidepressant medication and affective psychotherapy, as well as from a lessening of support from the family. Dr Krapivensky concluded that, purely from a psychiatric perspective, the plaintiff has a capacity to perform the duties for which she is physically capable.
[89]DCB, p 85.
Findings and reasons
77 There were no challenges to the plaintiff regarding her complaints of lumbar and cervical pain to Dr Winfield and to the assessing specialists. However, it is clear from the extracts of the surveillance footage that the plaintiff’s functional walking and sitting tolerances exceed the seven to eight minutes that is noted in many reports. That much was conceded by the plaintiff in cross-examination, although she insisted that when at the shopping centre she alternated between walking and sitting. The surveillance footage as a whole, however, is not inconsistent with the plaintiff’s claims that she goes out rarely and only with her parents to the shopping centre on a weekly basis, that she does not push a trolley or carry shopping, that she has a sore back, and that she is depressed. The footage played during the hearing was not provided to any of the recent specialists who assessed the plaintiff for comment. In the light of the plaintiff’s claimed poor memory, which may be a feature of her poor psychological state, I attach little weight to what appeared to be her efforts to reconstruct the events of the days filmed. I attribute these efforts to her general efforts to impress the gravity of her predicament, which is consistent with her presentation to the examining specialists, all of whom noted non-organic features of her presentation.
Permanent impairment of the function of the spine
78 Apart from Dr Barton, there was consensus between Dr Winfield, Dr Ong, Dr Slesenger and Dr Sullivan, that, notwithstanding the non-organic features in her presentation, there is an organic basis to the plaintiff’s complaint of pain in the spine, particularly in the cervical spine, consistent with the radiological findings at C4/5 and C6/7, and that her condition is work-related.
79 I put Dr Barton’s opinion to one side, as he appears to have glossed over the radiological findings in the cervical spine, attributed all of the plaintiff’s presentation to non-organic features, and not justified his opinion that doing childcare work could not cause long-term back or neck issues.
80 I am satisfied on the evidence of Dr Winfield, Dr Slesenger and Dr Sullivan that, as a result of her employment with the employer, the plaintiff suffered soft tissue injuries to the cervical and lumbar spine and aggravation of cervical spondylosis. These injuries resulted in a chronic pain disorder or central sensitisation, which is a permanent impairment of the function of the spine. There was consensus among the experts that, as a result of this organic impairment, the plaintiff is permanently incapacitated for her pre-injury employment.
81 I accept the plaintiff’s evidence as to the pain and suffering consequences of her neck and back pain and central sensitisation. She takes anti-inflammatory medication daily and pain killers as needed, suffers from interrupted sleep, and has limited sitting, standing and walking tolerances. She is permanently unable to return to her work in childcare, which she loved and which is the only work she has ever done. I consider that the pain and suffering consequences of her organic and permanent impairment of the function of the spine are more than considerable when compared with other cases in the range of impairments of the spine.
82 I turn to the issue of residual work capacity. At the time she ceased working, the plaintiff was working four days per week. Her evidence was that she had worked full-time in the past, had reduced her hours partly due to her daughter’s needs and that, absent her physical injuries she had planned, when her daughter was more independent, to return to work full-time in childcare.[90] The defendant submitted that this claim was fanciful given that she had worked only 32 hours per week for five years. However, the plaintiff’s evidence in this regard was unchallenged and I accept it. For this reason, I accept that the plaintiff would have returned to full-time work by the time of swearing her second affidavit on 18 October 2018, which is within three years of the date of injury. I therefore also accept the plaintiff’s suggested basis for calculating loss of earning capacity, which is outlined at paragraph 7 above.
[90]See the second affidavit of the plaintiff at PCB, p 37 [18].
83 I note that Dr Slesenger opined that the plaintiff is physically capable of working 16 hours per week in suitable employment, while Dr Sullivan opined that she is capable of working between six to 12 hours per week, but only after doing a pain management program. However, Dr Slesenger stated only that he was “generally optimistic”[91] about a role such as ‘product clerk’ – without indicating whether he had considered all the job tasks involved in that role.
[91]PCB, p 120.
84 I also note that there is no description before me of the tasks involved in any of the proposed employment options apart from those of receptionist, lifestyle attendant and customer service officer. In relation to those three positions, it is clear from the figures that, even on the defendant’s acknowledged without injury earnings figure, the plaintiff would succeed in establishing the requisite loss of earning capacity even if she could do those jobs 16 hours per week.
85 In relation to the remainder of the positions identified, but not described in any material before the court, even if she were able to work 16 hours per week, the plaintiff would also succeed in establishing the requisite loss of earning capacity on the defendant’s own without injury earnings figure in relation to all but two[92] of the positions identified as suitable employment options by the defendant. As there is no detailed description before me of those two remaining positions, I am not in a position to determine whether these jobs represent suitable employment for the plaintiff.
[92]Production clerk and stock clerk.
86 For the above reasons, I consider on the evidence that the plaintiff has established that the loss of earning capacity consequences of her permanent impairment of the spine are more than considerable when compared with other cases in the range of permanent impairments of the spine. I consider that the plaintiff has established the requisite loss of earning capacity.
Psychiatric impairment
87 I accept that the application under sub-paragraph (c) was run as an alternative case. Out of an abundance of caution, if I am wrong in my assessment of the plaintiff’s application under sub-paragraph (a), I indicate that my findings in relation to the sub-paragraph (c) claim are as follows.
88 I note that while Dr Sabetghadam, an occupational physician, concluded that the plaintiff’s pain behaviour was such that he was unable to reach any specific diagnosis, he raised the possibility of a somatisation disorder. Dr Krapivensky, psychiatrist, relied on the report of Dr Barton for the basic premise of her opinion, which was to the effect that there were no objective causes of the plaintiff’s widespread complaints of pain, and that these were not work related. On this basis, Dr Krapivensky diagnosed a somatic symptom disorder, unrelated to the plaintiff’s employment, and opined that the plaintiff had a capacity to work within her physical tolerances.
89 I have already indicated that I have put Dr Barton’s opinion to one side. Given that Dr Krapivensky’s opinion is based on Dr Barton’s opinion as to there being no organic injury and no relationship of any pain disorder to employment, and given my finding that there is an organic, work-related injury and impairment of the function of the spine, I prefer the evidence of Dr Ingram and Ms Wallis to the effect that the plaintiff suffers from a major depressive disorder which is a secondary consequence of her work-related chronic pain and physical limitations. Whilst I accept Dr Ingram’s opinion that the plaintiff is currently incapacitated for any employment due to her psychiatric injury, due to the impact of her depression on her motivation, concentration and energy levels, I note his recommendation that her depression might improve with treatment with antidepressants. The treating psychologist, Ms Wallis, noted that there had been an improvement in the plaintiff’s psychological state over the period between mid-2018 and late-2019, and that this improvement might continue with further treatment over the next two years.
90 In the light of the opinions of Ms Wallis and Dr Ingram, I consider that the plaintiff has not discharged the onus she bears to establish the permanence of the psychiatric impairment resulting from her workplace injury. I therefore dismiss this limb of her application.
Conclusion
91 Leave is granted to the plaintiff to issue proceedings for pain and suffering and economic loss flowing from the injury to the spine sustained during the course of employment with the employer. I reserve the question of costs.
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