Best v Victorian WorkCover Authority
[2022] VCC 721
•26 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-04430
| DONNA MAREE BEST | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2022 | |
DATE OF JUDGMENT: | 26 May 2022 | |
CASE MAY BE CITED AS: | Best v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 721 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering and loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s327
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr M Belmar | Maurice Blackburn Lawyers |
| For the Defendant | Ms M Cameron | Russell Kennedy |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of her employment with J Sadler Investments (“the employer”) which occurred in or about 8 June 2016 (“the said date”).
2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury”. The relevant body function is the lumbar spine.
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue into the foreseeable future.
5Under the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”.[1]
[1] Section 325(2)(c) of the Act
6I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, the Act imposes specific burdens in relation to a claim for loss of earning capacity.[2]
[2] Section 325(2)(e)(i)-(ii) of the Act
8In this application, where there is a claim for loss of earning capacity, that loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in s325(2)(f) of the Act.
9Questions of rehabilitation and retraining must be considered in whether the 40 per cent loss has been established.[3]
[3] Section 325(2)(g) of the Act
10I have applied the principles edified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Haden Engineering Pty Ltd v McKinnon[5] in reaching my conclusions.
[4] (2005) 14 VR 622
[5] (2010) 31 VR 1
11The plaintiff relied on two affidavits and was cross-examined. She also relied on an affidavit sworn by her son, Drew, in May 2022. Further, the parties relied on medical reports and other documents which were tendered. I have read all the tendered material, and also viewed video surveillance of the plaintiff during the hearing.
12The main issue in dispute in this application was loss of earning capacity. The plaintiff was not cross examined in relation to pain and suffering consequences and no submissions were made by counsel in this regard, however, pain and suffering was not conceded.[6]
[6]Transcript (“T”) 5, T47
The Plaintiff’s evidence
13The plaintiff is presently aged fifty-nine, having been born in June 1962. She lives alone.
14She was educated to Year 10 and finished school in about 1977 and has consistently been in the workforce since that time, other than periods in which she was absent due to having children or, more recently, when absent from work due to illness.
15Most of her work has been in customer service, although at times she has also worked in kitchenhand environments.
16Since the mid-2000s, her work has included as a cashier at Coles, at IGA for about three years in Kyneton, and in an aged care facility for a short time in the kitchen.
17From 2009 to 2012, she was employed by a McDonald’s franchise and ended up being the manager of the Calder Highway store. Her first job at McDonald’s was working as a barista and also dealing with customers, working thirty hours a week.[7]
[7]T12
18In 2012, she left that role, which was very full on. She then had about two or three years out of the workforce dealing with the impact of menopause.
19In early 2014, she returned to the workforce and worked in the call centre at Oracle for a few months. There, she entered the details of phone calls into the computer system. She had done a Centrelink computer course while off work in 2013, which was good enough for her to learn how to use the system for this job; however, she had difficulties with the computer work because she is not good with computers. She had difficulty retaining information as to how to use the desktop properly. She was only on the easier calls she could manage. The difficult ones went to different people.[8]
[8]T11
20In about June 2014, she took on a job as a casual barista with the employer at another McDonald’s store in the Masters hardware store. She thought this would be less full on than her earlier job at McDonalds.
The incident
21The plaintiff sustained injury throughout the course of that employment and, in particular, on the said date when she was removing bun crates which were stacked high in a walk-in fridge and she felt an intense pain in her back (“the incident”).
22At the time of the incident, she was working twenty-five hours per week, earning $21.61 per hour, earning a total of $540.25 per week.[9]
[9]Claim Form signed on 25 July 2018
23Following the incident, she believed she attended her general practitioner, Dr Coull, who recommended that she have some time off work. She was initially given a short time off work after the incident.[10]
[10]T12
24The plaintiff returned to work at the café, and later was transferred to a stand-alone McDonald’s at St Albans where she kept doing similar work. There were more staff there, so she only had twenty five hours work per week.[11]
[11]T13
25She believed she did her best to stay at work, but the symptoms worsened in late 2016 and she went back to her general practice, where she saw Dr Lanyon. Scans were arranged which she understood showed changes in her spine, and she was prescribed medication including Lyrica, Panadeine Forte and Celebrex.
26To the best of her recollection, she was referred to a specialist and could recall seeing a surgeon, Professor Teddy, who advised at that stage that surgery would not assist.
27She has been treated by Dr Richard Sullivan, pain specialist, on a number of occasions. His procedures overtime gave her some relief, but she continued to experience severe back pain. She had injections in May and June 2019 and a procedure in July that year. In December 2019, she had a denervation procedure in her sacroiliac joint and a further procedure in February 2020. None of these had given her ongoing relief.
28She was also referred to Mr Awad, surgeon, who discussed the possibility of surgery and, given her pain levels, agreed to request permission to do the surgery. However, that was not forthcoming, and she had not been able to undergo that procedure.
29She also had physiotherapy for her back and leg pain, but that had not given her ongoing relief.
30As at June 2021,[12] she continued to experience back pain which was present to some degree all the time with good and bad days. In particular, pain was also in her left buttock, and it felt like it travelled down into her foot, particularly the two toes next to her little toe.
[12]Plaintiff’s first affidavit sworn 11 June 2021
Work
31As at June 2021, she had done her best to remain at work. Following the initial injury, she thought she was back after a short absence and able to work until about November that year. She then had time off as her back was hurting but she did not think she had as much as two years off.[13] Since then, she had been trying to do her best and believed that since about 2018 she had been limited to about 12 hours a week, whereas before she was capable of doing at least 30 hours a week. Although, as she was casual, she did the shifts that were offered.
[13] T14
32Up until early 2021, she was going into work but had flare-ups and had been off work, even though she would like to work, but she was limited by pain and the number of hours that she could do.
33At that stage, simple activities could cause a flare-up, even moving the wrong way in the shower, as had occurred in 2018. She had to be careful with her back and had limited confidence in being able to move freely and being able to get around.
34She agreed that she worked on modified duties at St Albans McDonalds for three to fifteen hours a week from late 2018 until February 2021, when she had a flare-up. She had lifting restrictions. She was able to move around more freely than previously:
“I had everything within my reach so that I didn’t have to lean over and stretch as far. I had a lot of help with the staff that were there as well. They would get things out of cupboards for me, do the heavier lifting things like that.”
35That was the situation until she stopped work altogether in June 2021.[14]
[14]T14
36As her payslips recorded, she returned to working about six hours a week in late 2018, and gradually built up so that in March the following year, she was working fifteen hours a week for a couple of weeks, and then dropped back to about nine hours a week. She largely worked nine hours a week for about six months, and then increased to twelve hours a week in about September 2019. She consistently worked twelve hours a week at St Albans on modified duties until she stopped in February 2021. There was then the incident when a colleague backed into her when she was moving backwards carrying an item at work and the plaintiff took a few months off work.[15]
[15]T16
37She thought the longest time she had off between 2018 and February 2021 was about five and a half months, and there were also other periods.. She had the longer period after a major flare-up, and the other times off were because of flare-ups.[16]
[16]T34
38She agreed that in one and a half years from September 2019 to February 2021, she was working twelve hours a week; reliably attending as an employee. She was coping fairly well, managing twelve hours split over the week, and then was changed to consecutive days. She was able to cope with the consecutive days. Even though she was in pain, she was fine dealing with customers and colleagues.[17]
[17]T17
39She would like to work as she relief on income as she lived alone and needed income to get by. Pre injury she earned the following amounts:
Financial Year Amount Earned 2014 $23,774 ($10,945 DSS benefits) 2015 $27,238 ($1,244 DSS benefits) 2016 $30,187 ($1,168 DSS benefits) 2017 $27,470 ($1,118 DSS benefits) 2018 $26,525 ($1,149 DSS benefits) 2019 $32,903 ($24 DSS benefits) 2020 $27,193 ($3,998 DSS benefits) 40While those records did not show a reduction since the incident, her hours have reduced significantly. She had received compensation payments which maintained her level of income, despite working less hours, and believed that her ability to earn had been substantially reduced by her injury.
41In June 2021, she was unsure what the future held, and had she not been injured she intended to keep working for the employer as long as possible. The job as a barista for McDonald’s was a good fit for her. She liked being there early in the morning to get the place ready. She was an organised person and enjoyed that task. However, she was then living in constant pain and was unsure what work she could do on a regular and reliable basis.
42She stopped working in July 2021 and had not worked since that time. When she stopped work, she was doing four hours a week as a barista, but was not coping due to back pain and physical restrictions.
43She is unsure what work she could even do in the future as she is turning 60 this year. She has only ever really done physical-type work, or work that had a physical component.
44Following the injury, she was never able to return to work doing the sort of hours she had done before. The last time she worked for the employer she was doing four hours a week with a view to perhaps getting up to ten or twelve, but was not considering longer hours due to her continuing pain and discomfort.
45She has no real computing skills and has not done administrative or office-type work. However, she does not believe it would be realistic to work in that sort of role as she would not be able to fulfil shifts or be reliable in her work. Further, when she is in pain, she can be quite irritable and would struggle significantly to engage with customers or co-workers.
46Currently, she is in receipt of Newstart, and she is registered with one of the disability-type agencies. She has applied for the disability pension. She also continues to receive a small payment from her employer. She would like to work but, due to her back injury and ongoing symptoms, she is unsure what she could do on a regular and consistent basis in the future.
47Since leaving St Albans McDonalds, she has not looked for any work because back pain prevents her from looking, and she does not think that an employer is going to employ her four hours a week, which is all she can do at the moment.[18]
[18]T20
48On her return to work in May 2021 after the February flare-up, she was working four hours a day on the same modified duties. She was able to deal with customers. At times, she started to feel unwelcome at St Albans, in terms of dealing with her colleagues. It was more management higher up that made her feel unwelcome. The crew she worked with was fabulous.[19]
[19]T18
49She was taken to Dr Coull’s comments in August 2021 that she appeared poorly motivated to return to full duties in her current work environment given her pain, and she had said that she did not feel welcome at work anymore. She agreed that she did not feel welcome. She agreed that it was her intention when she was doing four hours to try and build back up to twelve.[20]
[20]T19
50The plaintiff was stood down by the employer in July 2021 but was not given a reason. She just received a phone call that said “ ‘[d]on’t come in to work tomorrow because you’ve been stood down until further notice’”.[21] Otherwise, she would have continued working at St Albans and trying to build up to twelve hours per week. If she was offered that now, she could not work these hours because of back pain, which had become worse in the last six months, it is just constantly there and continuously flares up.[22]
[21]T19
[22]T20
51She recalled telling Dr Wyatt in August last year that she would like to work, but the most she could do is fifteen hours a week, and many employers want more than that. That was true at the time of the examination.[23]
[23]T21
52The most she could work now is twelve hours a week.[24] She later confirmed, at the moment, she could only do four hours. She did not think, when her current flare up improved, she could work twelve hours a week in a barista role because of her back pain. It also affects her mood, and she gets very irritable, which is not good for customer service. Back pain would also stop her from bending and lifting.[25]
[24]T21
[25]T24
53She did not think she could deal with fifteen to twenty hours a week customer service work because of back pain, even if she was not sitting down all the time.[26]
[26]T26
54She could not do a job like a barista, because she is standing still in front of the coffee machine and is generally not moving from side to side.[27] She can carry two litres of milk in her left hand while she does have a lifting limit of 5 kilograms from her GP. She does not avoid twisting.[28]
[27]T22
[28]T23
55Currently, pain would prevent her from doing fifteen to twenty hours a week as a barista. It was something she would like to do, but honestly did not think she could. Not long ago she had had another relapse and the pain at the moment would stop her from doing anything more than four to six hours.[29]
[29] T24
56Working as a barista at McDonalds, she was not just able to walk off when she felt like it. It is very difficult to stand in the same position for lengthy periods as it increased her back pain.[30] When she finished up, she was doing four hours and just coping. A lot of the time she went home in tears or got home and cried because of back pain. That was the situation even working with ongoing modifications/restrictions. It hurt when she had to lean out and stretching affected her back.[31]
[30]T32
[31]T33
57As of today, she would not be able to do unrestricted duties as a barista, because of the constant standing. She could not undertake cleaning tasks if she did not have the help of other workers. She has never got back to doing fifteen hours without restriction. She pushed herself as far as she could to stay at work. She lived alone and really needed the money, as rent was astronomical. She has never been one just to sit at home, she has always worked. She enjoyed her job.[32]
[32] T35
58She was very disappointed when they told her she had been stood down. Working four hours during COVID kept her sane, and also active.[33]
[33]T35
59She did not think she could do work as a retail assistant, like at a Tattslotto agency or a newsagency, for twelve hours. Her flare ups are unpredictable. She could not tell from one day to the next how she would be feeling, although she did reliably attend work from at least September 2019 to February 2021. Because of her flare ups, she could not walk around to assist customers, go to different aisles, fix up the shelves and then go back and stand at the counter even if there was a chair there to sit on if she needed it.[34]
[34]T27
60She would not be able to do a job as a retail assistant if she had to restock shelves with magazines, based on her past experience. It would just increase her back pain. She could not do a job which involved having to clean up a newsagency. When she worked in one, the job did involve restocking and cleaning. On a day-to-day basis, she did not think she could restack the shelves.[35]
[35]T32
Pain and suffering
61The consequences deposed to were as follows:
· no longer able to garden as before
· reduced ability to do a big shop and nervousness shopping
· sleep affected by pain
· much slower doing domestic activities
· poor mood
· limitation in driving for more than twenty to thirty minutes.
62Over the years, she had taken a number of different medications. She was allergic to Codeine, so had limitations in that regard. In 2021, she was taking Lyrica and also Duloxetine, an antidepressant. She continues to take medication, including Lyrica, Celebrex, Duloxetine and Panadol Osteo.
63She has not considered having nerve block injections again, as they gave her no real ongoing benefit. In fact, after one of them, it felt as though her legs had gone to sleep and it was very difficult to even get out of the car. In any event, the benefit from those procedures only lasted about a day.
64She is getting some benefit from current physiotherapy, and at least when she has that treatment, she is able to get a reasonable night’s sleep for about a night or two.
65She is undecided at the moment whether to have surgery, funding for which has been refused by WorkCover. It could be a possibility in the future but, at the moment, she is undecided. It is a lot to think about. She has not made any enquiries in the public system because she is still undecided and because of the COVID-19 pandemic there is no surgery anyway. In any event, the public system is overwhelmed at the moment because of COVID-19, and it would be several years before she could have it done even if she decided to.[36]
[36]T29
66She continues to see her general practitioner monthly and more often if she has flare-ups, such as earlier this year when changing the bed linen, she experienced a very severe back pain which took her breath away and caused her to find a seat to sit down.
67She has continued to experience the ongoing consequences of that flare-up to date. She has been having regular physiotherapy and has been learning to do exercises to increase her core strength, but still experiences daily back pain and altered sensation in her left leg and the feeling of loss of balance when she walks.
68Her flare-ups are unpredictable and can happen at any time. When she has them, she feels in a lot of pain and is restricted from doing everyday normal things.[37]
[37]T30
69Since February 2021, the number of flare-ups has changed. They are more severe. They happen more frequently, and the back pain is 15/10.[38]
[38] T31
70When she has a flare-up she cannot take anything strong. The last time she got stuck in the chair and begged her doctor for something stronger, but there is not much that can be done.[39] If she has had a flare-up before the grandchildren are coming, she does not have them, and they get booked into day care. There have been times when that has happened.[40]
[39]T31
[40] T31
71Her back pain was worse in the last six months. She could not explain why, but it is constantly there and just continuously flares-up.[41] She has no control over it.[42]
[41]T20
[42]T22
72Sleeping problems continue, and she is still restricted in domestic activities and gardening.
73She continues to be limited in the amount of lifting she can do, and does small shops and often uses a trolley as something to give her balance.
74It is relatively hard work looking after her grandsons, aged three and one, on Thursdays. It is not an easy day. Sometimes, she has difficulty picking up the baby. After they have gone home, she has back pain. After she has looked after the children, she takes extra painkillers and quite often she is in bed early. She would not be able to look them on consecutive days because it is too much on her back.[43]
[43]T30
75She disagreed that if she was not doing that babysitting one day a week, she could work more hours.[44] Possibly in the future, if she was working eleven hours on non-consecutive days and not looking after her grandsons, she would be able to cope.[45] She is able to move freely, caring for the children, but not if she was doing the barista work.[46]
[44]T28
[45]T29
[46]T35
76Long periods of sitting and standing and also bending aggravate her back pain, so she generally squatted or crouched, as Dr Wyatt reported. Walking “kind of helps” her and relieves some of her back pain.[47]
[47]T22
77She can drive up to thirty minutes at one time. There are lots of shops and shopping centres within a ten-minute driving radius of Sydenham.[48]
[48]T22
78Her mood continues to be poor, and following a recent flare-up, she was really down in the dumps and found it difficult to get out of the house.
Termination of employment
79The plaintiff received a “show cause” letter of 9 May 2022 in which the incident injury and her remaining with a partial incapacity at present was noted.
80The employer advised it could not keep her position of part-time crew open indefinitely, and it appeared that, despite the injury occurring close to six years ago, it was unclear whether she would be able to return to her pre-injury role at all, or in the foreseeable future, without significant risk of re-injury. Records indicated that the fifty-two-week obligation period for her claim had been met in terms of suitable duties, and as such, it was necessary that consideration be given to terminating her employment.
Lay evidence
81The plaintiff’s son, Drew, swore an affidavit on 13 May 2022. He has a very good relationship with her, and they have regular contact.
82Pre-incident, the plaintiff was active and fiercely independent, really into her garden and she also worked. She did not require assistance with driving.
83The plaintiff needs to continue working for financial reasons.
84Since 2018, he has seen her weekly because she has cared for his son each Thursday from the time he was about one year old. Since earlier this year, she has also looked after his other son. He drops the children off between 10.00am and 11.00am and picks them up between 4.00pm and 6.00pm. They spend the day with the plaintiff, and she makes them lunch and takes them to the local park.
85He has observed the plaintiff being in pain since mid-2016, particularly during car travel.
86Earlier this year, she had a back pain flare-up for about three weeks and did not look after the children as she was not up to it. This was not a problem, as she is under no obligation to look after them and he can make other arrangements.
87Around the time of the flare-up, he also helped her by doing shopping for medication because she was having trouble moving around due to increased back pain.
Plaintiff’s medical evidence
Treaters
Dr Stuart Coull, general practitioner
88The first post incident attendance was on 8 June 2016, when rest and NSAIDs were suggested.
89In October that year, the plaintiff reported left flank worsening pain across the back to her hip.
90In November 2016, the plaintiff reported pain at times radiating down her leg, past the knee. She was referred for a lumbar CT scan. In December, her main complaint was leg pain, and she was referred to a neurosurgeon.
91On 12 December 2016, the plaintiff attended the Emergency Department after work as the pain was severe. Later that month, lower back pain was noted to be worsening and the plaintiff was awaiting a neurological surgical review for a disc bulge.
92On 3 April 2018, it was noted the plaintiff did not go to work today due to her back pain.
93In May 2018, there was acute ongoing chronic back pain: “work at McDonalds standing all the time”. There was a flare up of sciatica in early June 2018. Complaints of chronic back pain continued during 2018 until the last documented attendance of 4 February 2022.
94On 13 February 2022, Dr Coull’s diagnosis included sacroiliac joint dysfunction – sacroiliitis with lumbar radiculopathy and disc herniation compatible with the incident at work.
95He then thought the plaintiff was currently able to work four hours a week with light duties including avoiding lifting over 5 kilograms. She continued to experience significant pain. The initial plan was to gradually increase her hours; however, as time goes on, that was looking less likely.
96He thought that the prognosis was difficult to predict but appeared poor. He noted that the plaintiff appeared poorly motivated to return to full duties in a work environment given her pain, and she said she did not feel welcome at work anymore. Her prognosis was made more difficult to predict given that two of her specialists felt that sacroiliac joint surgery could have improved her pain levels, but this was not approved by WorkCover. It appeared that without surgical intervention and her limited response to physical therapy, that she would have limited capacity indefinitely.[49]
[49]August 2021 report in similar terms when she was doing four hours a week with those light duties, but continuing to experience significant pain
97On 4 May 2022, Dr Coull certified the plaintiff had no capacity for employment from 2 May to 30 May 2022.
98As at May 2022, he considered that, as a consequence of her lower back injury, the plaintiff would be unable to undertake her pre-injury duties for the foreseeable future.
99He believed that, taking into account her age, capacity, work experience, skills and education, she was not going to be able to enter the workforce again for the foreseeable future. She remained in chronic pain, which appeared resistant to treatment. It was possible that she could be improved with surgery, but he believed this had been declined by WorkCover.
100He considered that there was no suitable employment for the plaintiff for the foreseeable future.
Dr Richard Sullivan, pain specialist
101Dr Sullivan first saw the plaintiff in September 2018.
102He diagnosed chronic low back pain and chronic bilateral sciatica predominating on the left side. He thought the incident had a clear organic basis with radiological evidence of structural change in the lumbosacral spine, some which may have pre-existed the injury; however, given that her pain arose subsequent to that, at the very least there was an aggravation of a pre-existing condition.
103As at May 2019, he noted that the plaintiff was maintaining three-hour shifts three days a week on modified duties, and he expected that she should be able to continue this into the foreseeable future although it was unlikely, she would be able to substantially increase this.
104Dr Sullivan performed bilateral lumbar L3-4 and L5 medial branch nerve blocks and a left sacroiliac joint injection in June 2019. The following month, he performed a left L4 plus left L5 transforaminal epidural injection. In February 2020, he carried out a left sacroiliac joint radio denervation and sacroiliac joint injection.
105Dr Sullivan referred the plaintiff to Professor Teddy in May 2019. Professor Teddy thought that the best course would be for Dr Sullivan to perform a selective nerve root block at L4-5 and try to identify her pain generator.
Dr Awad, neurosurgeon and spinal surgeon
106Dr Awad reported to Dr Sullivan, having seen the plaintiff in May 2020.
107He thought the MRI scan and SPECT bone scan pointed to sacroiliac joint dysfunction. He noted that the plaintiff had been having conservative treatment for three years and wanted a more permanent solution. He had taken the liberty of talking to her about sacroiliac joint fusion, which she wished to undergo, and for which he would seek funding.
Medico-legal
Dr Hazem Akil, neurosurgeon and spinal surgeon
108Dr Akil examined the plaintiff in March 2022.
109He concluded that she had aggravation of lumbar spondylosis caused by the repetitive nature of her work at McDonald’s. He thought that her work was a major contributing factor to the presence of her symptoms.
110He noted that the plaintiff continued to have significant left-sided lower back pain which radiated towards her buttock and involved her hamstring and the calf region and went all the way to her foot. She preferred to stand and walk rather than sit down as sitting was very limited to 10 to 15 minutes. She also felt pins and needles in her left leg when she sat down.
111The plaintiff had tried her best to return to work and, in fact, was working part time until July 2021, when she was dismissed.
112The plaintiff had difficulty playing with her grandchildren and felt that her independence had been lost, struggling with housework and cooking.
113The restrictions were repetitive bending as well as repetitive pushing and pulling; prolonged sitting or standing for longer than half an hour; lifting heavy objects heavier than 5 to 10 kilograms, and overhead reaching. These restrictions would persist for the foreseeable future.
114He did not believe that the plaintiff could return to full-time unrestricted work in her pre-injury position of employment. It is very difficult to find a type of work that is suitable for her current condition and symptoms, and she is able to do it reliably and on a permanent basis, noting the plaintiff is fifty-nine years old and taking into consideration her educational level, skills and work experience.
115He did not consider that the surgery proposed by Dr Awad was unreasonable. He was particularly surprised and disappointed about the tone of the IME report by Dr Drnda and Dr Weaver. He thought sacroiliac joint dysfunction was a new concept in modern spine surgery, and he did not sense the authors of the report had any idea about it.
116In general terms, the plaintiff’s greatest capacity was for four hours a week, based on the general practitioner’s most recent report, although he thought that, realistically, the plaintiff had no capacity for suitable employment. She had no capacity for full time pre-injury employment, and it was difficult to find the type of work that she could do reliably and consistently with ongoing restrictions.
Dr Remy Glowinski, psychiatrist
117Dr Glowinski saw the plaintiff in February 2022.
118He believed that the plaintiff was currently suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought that any potential restriction to work capacity was secondary to pain and functional limitations rather than her psychological state.
119In his view, her apparent lack of computer skills may impact work capacity, including for some of the roles listed in the vocational assessment report, such as receptionist and despatch and receiving clerk. Her age, to some extent, might also affect her ability to learn new skills and adapt to new environments. He thought that the course of her psychological condition was almost entirely contingent on her experience of pain and functional limitations.
Vocational evidence
Leonie Schneider, vocational counsellor
120Ms Schneider provided a vocational assessment, having interviewed the plaintiff on Zoom on 2 March 2022.
121In her opinion, the sixty-year-old plaintiff did not have the realistic work capacity for either her pre-injury occupation or for the occupations identified by Ms Hall from AMP in the 130-Week Vocational Assessment Report dated February 2022, or for reasonable, meaningful and gainful employment for which she was qualified, educated, trained, experienced or skilled.
122She considered that with the passage of time, the plaintiff’s entrenched work incapacity would intensify, and she would remain unemployable indefinitely.
Defendant’s medical evidence
Treaters
123Dr Coull completed a medical practitioner questionnaire in June 2020, where he set out he thought the plaintiff had a work capacity for suitable employment as a barista, customer service representative and purchasing clerk, but no current work capacity for work as a receptionist, despatch and receiving clerk, or a retail assistant (light items). The duration of the incapacity was uncertain as she was having surgery.
124By letter dated 9 July 2020, Dr Sullivan advised Dr Coull that the plaintiff remained relatively stable, working three days a week, four hours a day. He believed she could continue this for the time being but did not believe she was in the position to increase her hours prior to the minimally invasive sacroiliac joint surgery.
Investigations
125An MRI scan of April 2020 was reported to show mild to moderate lumbar spondylosis, mild degenerate facet arthropathy at L3-4 to L5-S1 levels, mild narrowing of central canal lateral recess and neural foramina at L4-5 level, secondary to mild diffuse disc bulge, and degenerative hypertrophic changes at facet joint. Mild impingement at the traversing L5 nerve roots in the lateral recess was possible. Does this corroborate with the distribution of the patient’s symptoms? There is no evidence of significant neural impingement elsewhere into the lumbar spine.
126Following a bone scan organised by Dr Awad in April 2020, it was reported there was probable mild focal pathology inferiorly in the right sacroiliac joint. “On the left, the focus appeared to extend into the medial ilium ? stress response.” There was also evidence of left L3-4 facet joint arthritis.
Medico-legal
Mr Bruce Love, orthopaedic surgeon
127Mr Love saw the plaintiff in August 2018. He then diagnosed a degenerative disc lesion of the lumbar spine, causing nerve root impingement.
128He thought the plaintiff had no capacity for pre-injury or alternative duties, and a work capacity was dependent upon whether she sought surgical advice or underwent surgery.
Dr David Barton, occupational physician
129When Dr Barton saw the plaintiff in November 2018, he thought that she had a current work capacity and could return to light barista work with a lifting limit of 5 kilograms and appropriate breaks.
Dr David Ho, occupational physician
130In March 2019, Dr Ho thought modified pre-injury duties should be okay as a barista, as long as restrictions were maintained (lifting, bending, sitting and twisting limits).
131He also suggested modified pre-injury duties of four hours a day, four days a week, with a rest day in between after he had observed the plaintiff clinically during a worksite assessment.
Dr Joseph Slesenger, occupational physician
132Dr Slesenger saw the plaintiff in April 2020.
133He then thought that she was capable of performing suitable alternative duties (push, pull, bend, twist, no prolonged static position restrictions). The roles suggested by APM in February 2020 (barista, customer service representative, receptionist, dispatch and receiving clerk, purchasing clerk, retail assistant - light items) were suitable as long as lifting restrictions up to 9 kilograms and on an occasional basis were in place. She could also return to work in a light packing, light assembly role.
Dr Arunava Das, psychiatrist
134Dr Das saw the plaintiff in July 2020. He then thought that there were no psychological barriers in relation to pre-injury duties.
Dr Armin Drnda, neurosurgeon
135Dr Drnda, in October 2020, did not comment on the plaintiff’s work capacity having been asked to advise as to the proposed surgery.
Dr Mary Wyatt, occupational physician
136Dr Wyatt saw the plaintiff in August 2021. The plaintiff told her that earlier in the year, she was off work after a flare up. Her payments stopped and she went to conciliation. She had gone back to work for a four-hour shift on Tuesday which she felt was good for her mental health and kept her moving. However, she felt once the employer realised that she had solicitors involved, she was stood down, though continued to receive payments.
137Dr Wyatt then thought that the plaintiff was fit for roles which would allow her to change her position intermittently, and which did not require her to regularly bend and manual handling.
138The role of barista for fifteen to twenty hours a week was suitable, where standing and moving around. A customer service role on a similar basis was also suitable.
139Work as a receptionist, despatch or purchasing clerk was unsuitable due to the requirement to be seated and static posture.
140However, a retail assistance role, hours not specified, was suitable when handling light items only.
Vocational evidence
141Rehabilitation consultant, Ms Elizabeth Hall, provided a 130-week vocational assessment report in February 2020.
142She identified suitable employment options, in order of priority, were barista ($1,154.00 full-time weekly gross wage), customer service representative ($1,192.00), receptionist ($982.00), despatch and receiving clerk ($1,356.00), purchasing clerk ($1,251.00) and retail assistant (light items) ($961.00).
Overview
143There is no issue that the plaintiff suffered an injury to her lumbosacral spine in the incident on the said date.
144There is no suggestion that her present lumbar pain is unrelated to the incident or that the consequences of any spinal impairment are not organically based. Further, there is no indication that prior to the said date the plaintiff had any back problems.
Credit
145As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[50]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[50](supra) at paragraph [12]
146Counsel for the plaintiff submitted that the plaintiff was honest and credible, having always relied on her ability to undertake jobs involving manual work. It should be rejected that there is any lack of motivation. She has been a very stoic woman who has battled on.[51]
[51]T47
147As I indicated during the hearing, I thought the plaintiff was a truthful witness who did not exaggerate her symptoms and restrictions. Understandably, there was no real attack on her credit by counsel for the defendant.[52]
[52]T47
148Further, I consider the plaintiff to be somewhat of a stoic, who has continued to try to work in her job since injury in 2016 despite ongoing pain and difficulties.
149As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[53] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[53] [2008] VSCA 260 at paragraph [4]
Pain
150As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[54] “The evidentiary basis of the pain assessment will ordinarily comprise the following: (a) what the plaintiff says about the pain (both in court and to doctors); … .”
[54](Supra) at paragraph [11]
151The plaintiff continues to suffer significant left-sided lower back pain, radiating down her left leg. While last year she had good and bad days, more recently, she has suffered from debilitating flare ups on occasions – the effects of the most recent continuing.
152Because of her back pain, she is restricted in her ability to lift and bend and sit or stand for prolonged periods.
153Accordingly, domestic activities are affected, and she struggles with housework and cooking. Gardening activities are limited.
154A range of conservative procedures have been undertaken with limited success, and while surgery was recently suggested by Mr Awad, WorkCover has refused to pay for it and the plaintiff does not intend to pursue that course at the moment.
155The consensus of medical opinion is that, as a result of her lower back condition, the plaintiff no longer has a capacity for unrestricted physical work – a significant consequence for a woman with no formal qualifications and a history of largely physical work.[55]
[55] Haden Engineering (supra) at paragraph [15]; Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]
156Taking into account all of the evidence, I am satisfied that the consequences of the plaintiff’s lumbar impairment are serious and permanent, there having been no improvement, but in fact a deterioration in recent years.
157Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
158The next issue for determination is whether the plaintiff has suffered the requisite loss of 40 per cent.
159Pre incident, she was able to work 30 hours a week at the Master’s McDonald’s when those hours were available to her. She was rostered for only 25 hours at the St Albans store given a larger number of staff.
160According to the employer’s records, the plaintiff’s gross wage rate at 8 June 2019 was $21.61 per hour. Working twenty-five hours a week, the gross weekly wage would be $540.25, 60 per cent of which is $324.15. If she worked 30 hours, the gross weekly wage would have been $648.30, 60 per cent of which is $388.98 per week.
161In my view, the appropriate preinjury figure is based on the plaintiff working 30 hours a week. That is the amount that most fairly reflects her earning capacity pre incident.[56]
[56]Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292
162In general terms, the defendant’s view was that the plaintiff was capable at the very most of sixteen hours a week in roles that allowed for suitable restrictions and did not require static seated posture.[57]
[57] T6
163The plaintiff’s work history was relied on in this regard. When she stopped in July 2021, she was working four hours a week with a view to perhaps increasing to ten to twelve hours a week, as she deposed. She was working with a lifting restriction of 5 kilograms. She stopped work because the employer stood her down as they learnt she was pursuing legal action.[58]
[58] Dr Glowinski’s February 2022 report
164The plaintiff had worked twelve hours a week for about a year until February 2021, when a colleague bumped into her at work causing a flare-up. She had about three months off after that, and then returned to work for four hours a week.
165The plaintiff reported to Dr Wyatt in August 2021, that the most she could work is fifteen hours a week and agreed that was correct at that time, although she gave varying evidence about the number of hours she could presently work ranging from four to twelve hours per week.
166If the Court is satisfied that the plaintiff can in fact work twelve hours a week or build up to that in the foreseeable future once her flare-ups abate, various suggested jobs would get her over the sixty per cent.[59]
[59]T46
167Further, since August 2021, Dr Coull expressed some optimism about the plaintiff gradually increasing her hours. He also thought she was poorly motivated.[60]
[60]T45
168The essence of the plaintiff’s case was the plaintiff has no capacity for suitable employment.[61]
[61]T48
169Counsel for the plaintiff relied on Dr Coull’s notes setting out attendances from 2016 where the plaintiff complained of ongoing back pain and difficulties with her job, sought painkillers but battled on with work. She had some time off in 2018 and then came back and continued to battle on in the job with modifications, which did not change.[62]
[62]T47
170While earlier in the year Dr Coull thought the plaintiff had the capacity to work four hours a week, more recently, after the last major flare-up, he certificated her totally unfit in May this year, concluding she had no capacity for suitable employment.[63]
[63]T48
171It was submitted that it was quite clear, given her age, work experience and extent of her incapacity in circumstances where there has been no challenge to her credibility and the extent of her pain and suffering, the Court could feel comfortable making the finding that the plaintiff has no capacity for suitable employment and has therefore suffered the requisite loss of 40 per cent.[64]
[64]T48
172It was submitted the evidence is overwhelmingly in favour of total incapacity. Dr Coull had certified four hours a week and that was what the plaintiff was doing when she last worked. Her condition has deteriorated since then and her flare-ups are worse.[65]
[65]T48
173It was submitted Dr Wyatt’s suggestion that the plaintiff could be back working a number of hours, is “fanciful”. In any event, Dr Wyatt last saw the plaintiff in August 2021 and was not provided with the more recent report of Dr Coull or his May 2022 certificate of total incapacity following the 2022 flare-up.
174Accepting the plaintiff’s evidence of her pain and restrictions, I am satisfied that she has a very limited capacity for work at the moment, at most the four hours which she conceded she could do on one day. Effectively therefore, she has no capacity for suitable employment, as Dr Akil, Dr Coull and Ms Schneider opined.
175Even if the plaintiff could work four hours a week, her earnings are clearly below the threshold – less than $100 per week – and she has suffered the requisite loss. Working only four hours a week in the suggested roles, does not require any further detailed analysis of wage rates and hours.
176I do not accept that the plaintiff’s ability to look after two small grandchildren one day a week suggests that she has a work capacity beyond four hours. Babysitting is self-paced and even with this limited role, the plaintiff has been unable to do it at times as her son confirmed.
177The plaintiff may be hopeful of returning to ten to twelve hours’ work a week, but this is unlikely in the foreseeable future. I do not accept that she could work in her pre-injury role more than the hours she describes at present. She is a stoic and would work if she could both as she needs the money and enjoyed the job.
178Dr Coull’s prediction in February 2022 – when the plaintiff was working four hours – that as time went on an increase in hours was looking less likely, has proven correct.
179While of the view the plaintiff had the ability to work in the three jobs for fifteen to twenty hours per week, Dr Wyatt last saw the plaintiff in August 2021 before the recent deterioration confirmed by Dr Coull.
180Although they have not analysed the three suggested jobs, I prefer the views of Dr Coull and Mr Akil, that the plaintiff has no capacity for suitable employment.
181Interestingly, in its May 2022 show cause letter, the employer advised the plaintiff it doubted her ability to return to work given her injury, and her employment was terminated.
182While Ms Schneider is a vocational assessor, not a doctor, she has thoroughly analysed the three suggested jobs and concluded they were unsuitable for the plaintiff.
183The retail assistant role is unsuitable as it would inevitably involve stacking and cleaning duties, as the plaintiff had carried out previously when she worked in a newsagency.
184The suggested customer service role was vague and did not relate to a specific job. I do not accept that the plaintiff would have a capacity to work any significant hours in that role – even if she did not have to sit for extended periods.
185The barista job involves prolonged standing and does not provide an ability to walk around when pain increases.
186In my view, because of her ongoing back and left leg pain, particularly flare-ups which are unpredictable, the sixty-year-old plaintiff would not be a reliable and consistent employee, and has suffered the requisite loss of 40 per cent on a permanent basis.
187I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
188In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that her has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g).
189Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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