Boulton v Kyndalyn Park Pty Ltd
[2014] VCC 737
•28 May 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04908
| JENNY BOULTON | Plaintiff |
| v | |
| KYNDALYN PARK PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 14 April 2014 | |
DATE OF JUDGMENT: | 28 May 2014 | |
CASE MAY BE CITED AS: | Boulton v Kyndalyn Park Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 737 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment:Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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| For the Plaintiff | Mr G Pierorazio | Kim Bainbridge Legal Service Pty Ltd |
| For the Defendant | Ms K Galpin with Mr R Stanley | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on 1 July 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of 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 “at least very considerable” and “more than significant” or “marked”.
9 I 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.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
15 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is presently aged forty-one, having been born in January 1973. She lives alone on her parents’ farm in her own house about 25 kilometres from Swan Hill.[3] She is presently in receipt of a Disability Support Pension, having received weekly payments until last year.
[3]Transcript “T” 9
17 The plaintiff obtained Year 11 and has not had any further education since leaving school.
18 Prior to commencing work with the defendant in 2010, the plaintiff worked as a cook in various roadhouses and had been a service station attendant for two years or more. She had had a number of other jobs in the past, working in the performance of various physically-based activities, including working on farms and in nurseries.
19 In cross-examination, the plaintiff confirmed that prior to the said date, she had been a hands-on petrol station operator, cooked at a roadhouse, worked in nurseries re‑potting, watering, spraying and grafting large plants, and she worked at a crocodile farm. She has no qualifications and learnt on the job in all those roles.[4]
[4]T11
20 In re‑examination, the plaintiff confirmed that she only had small times off between jobs since leaving school. Working meant everything to her.[5]
[5]T65
Health prior to the said date
21 The plaintiff has an ongoing problem with irritable bowel syndrome (“the condition”) such that for a time in 2005, it caused her to give up work and she was referred to a specialist in that regard. The condition still causes some incontinence and pain in her stomach, and stress aggravates the condition.
22 The plaintiff could not recall having anti-depressant medication prescribed in 2006.[6]
[6]T14
23 The plaintiff could not recall when she was working at Mitsubishi Motors having any problems with back pain between 2007 and 2009. She recalled having a CT scan in 2008 at Swan Hill Hospital and being in bad pain on the day that investigation was carried out.
24 The plaintiff could recall seeing a Dr Zanker in November 2007. The plaintiff could not recall what caused her pain at that stage. She could recall having severe pain in the buttocks. She could not remember being tender in her lower back. She could recall being prescribed Tramadol.
25 The plaintiff agreed she attended Dr Spatari for a second opinion on 8 January 2008 as her back was not improving. At that time, she had had right sciatica for four months and she was taking Tramadol.[7]
[7]T19
26 The plaintiff could not recall hurting her back over Christmas 2008. She saw a doctor in January 2009 and agreed she told that doctor that she had seen another doctor at Tooleybuc who had given her Celebrex. The plaintiff sought a third opinion, because some of the local doctors “were not highly rated”.[8] It was not that her back was getting worse, it seemed to be the same. It was not back pain, it was buttock pain, the right-hand side more than the left, just at the top of the buttocks.
[8]T20
27 The plaintiff agreed with a clinical note in March 2009 that her sciatic pain went away – namely the pain in her buttocks and a little bit down the legs. There was no back pain.[9]
[9]T22
28 The plaintiff could not remember going to St Vincent’s Hospital in 2009.
29 The plaintiff denied any history of back pain to examining doctors, as the pain was not in her back. The pain was totally different, and she did not think it was relevant. She denied she deliberately tried to shield the information about her previous injury. She did not know why it was not referred to in her affidavit.[10]
[10]T25
30 The plaintiff agreed that she had answered “Nil” to a question on her claim form about any prior back history.[11] She did not have a current injury. She did not think it was related at all. Her pain was totally different after the incident. They were not one and the same thing to her, the previous and instant injury.[12]
[11]T38
[12]T24
31 Whilst the plaintiff previously suffered from some back problems, they were different in nature to her current problems and more related to right-sided sciatica. In addition, her previous problems did not stop her from working at a service station as a short-order cook for seven months before starting with the defendant as a farmhand in June 2010.
32 Before the said date, the plaintiff did not have extreme pain, like back pain. The feeling was just like numbness, but it was just mild and in the buttocks. It was not extreme pain like back pain. Since the incident, the back pain is with the plaintiff constantly.[13]
[13]T70
The incident
33 The plaintiff was employed by the defendant on its almond farm, where she worked as a tractor driver and a sprayer, earning $480 net per week as a permanent casual. Her job involved mostly driving tractors to do spraying, hoeing and slashing.
34 Two weeks after she started working with the defendant, on the said date, when lifting a 20‑litre drum of spray weighing about 25 kilograms from the ground to a vat on the top of a trailer, the plaintiff suffered severe back pain (“the incident”). After the incident, she put in a report.
35 Despite the pain, the plaintiff continued to work for two days, but her pain progressed and she developed pins and needles in both legs. She initially stopped work on 10 August 2010.
36 The plaintiff attended a general practitioner, Dr Spatari, on 13 August 2010. She told him that her pain at that stage was above the beltline. She did not have any pain below the beltline at that time.
37 In cross-examination, the plaintiff was taken to a diagram that Dr Spatari had drawn in his notes. There was an area of tenderness over both buttocks identified by Dr Spatari.
38 The plaintiff denied that the pain she was suffering on that occasion was the same type of pain she had experienced in 2008 and 2009. She did not know of any problem with her hamstrings as Dr Spatari had recorded.
39 The plaintiff was sent for physiotherapy and also acupuncture without any improvement. She was also referred for a CT scan. Despite the treatment, her symptoms continued, and she took pain-relieving medication.
40 Before finally ceasing work, the plaintiff attempted a return to light clerical work, cleaning the smoko room on the farm; however, she could not continue because of increasing back and leg pain, and has not worked since. On 2 November 2010, she had problems doing light duties, cleaning up cups.
41 The plaintiff went to Melbourne in early 2011 for an MRI scan, following which she had a nerve root injection (“the injection”) in September 2011 organised by Mr Jithoo, neurosurgeon. The plaintiff had been unable to get another appointment with Mr Jithoo.
42 The plaintiff agreed she received a great deal of benefit from the injection. She agreed she was a new person, as Dr Moynihan reported. The pain in her back had completely gone. This situation persisted for several months, but then deteriorated. The result was absolutely amazing.[14]
[14]T43, T47
43 The plaintiff did not do anything about finding at work, as she did not know what the consequences were going to be like. She spoke to Dr Moynihan, who had no idea for how long the injection was going to last. He did not tell her the injection was a long-term solution. The plaintiff loved working, and if she possibly could have gone back to work she would have done so.[15]
[15]T44
44 The plaintiff agreed that after the injection, there was no pain in her legs. That situation continues to today, but some back pain has returned after the injection.[16]
[16]T45
45 The plaintiff agreed that she told Dr McInnes, as of May 2012, she was keen to return to work, but she was then considering the possibility of another injection with Mr Jithoo. If she was mobile and keen to go back to work, she would not be getting another injection. The pain was worse at that time.[17]
[17]T47
46 The first injection wore off after about three months. The plaintiff agreed that at the time, she was feeling depressed and she took one anti-depressant tablet but had not taken any more. She was depressed because of everything that was in the situation.
47 Despite treatment, the plaintiff continued to suffer from constant left-sided low back pain as of November 2012 when she swore her first affidavit.
48 The pain then varied in its intensity and at times, her back was very painful. At times, it spontaneously deteriorated to the level of quite severe.
49 As a result of her injuries, the plaintiff could not stand, sit, walk or bend for any long period of time, and overall her mobility was very much reduced. She was restricted in her performance of a wide range of social, domestic and recreational activities, as well as not being able to work.
50 In the past, the plaintiff had been treated with Tramadol, but had bad side effects, and she was then taking Endone, fish oil, and glucosamine, and was waiting for funding approval for hydrotherapy.
51 The plaintiff agreed that as of August 2012, going off Tramadol made a huge difference, and the Endone was excellent. It made a huge difference when she was doing the computer course to be able to concentrate. She was not in as much pain with those tablets, but the pain had not been controlled.
52 The plaintiff wore a back brace quite regularly, and in particular, when doing any activity or travelling. She had been advised not to rely on it too much, and she tried not to do so. She continued home exercises and was then awaiting advice from a neurosurgeon as to whether there should be surgery.
53 Activities such as swimming and outdoor activities, including camping and water skiing, were now beyond the plaintiff. She had previously loved gardening and had a good garden, but it was now overgrown because of her inability to maintain it.
54 Living alone, the plaintiff had difficulty with housework, but did it at her own pace, as it had to be done. Some activities were pain provoking, and she had particular difficulty with hanging out the washing. Her ability to drive was impaired and she could not drive any lengthy distances.
55 In November 2012, the plaintiff was enrolled in a basic computer course and was learning slowly as she went along. The course was for a couple of weeks and she was required to attend seven hours a day.
56 The plaintiff then did not believe she was capable of any return to employment. IPAR were trying to assist her to rehabilitate, but she did not know what she could do. She had always done physical work. She intended to do a further stage of the computer course if the insurer was prepared to pay for it.
57 The plaintiff did not really choose to do the computer course. It was the only thing suggested, and she agreed, and it was thought it could help her rehabilitation to be able to learn a different skill.
58 During the course, the plaintiff was not able to turn up and sit out the full amount of hours on every occasion, as she was in that much pain she went to the doctor’s because of back pain. On other days, when she did not go to the doctor and she was not at the computer and they were reading, she would lie on the floor, which was belittling having to do that.[18]
[18]T67
59 The plaintiff’s restrictions remained, with limitations upon her ability to stand or sit for lengthy periods and in respect of lifting, bending, and driving. Those limitations precluded her performing any manual activity.
60 In her further affidavit sworn on 14 April 2014, the plaintiff deposed she has not experienced any improvement in her position, and, if anything, her symptoms have worsened.
61 The plaintiff continues to suffer from constant and ongoing lower back pain which spreads into both the left and right sides, although she does not experience any leg symptoms. She is always in pain, although on occasions, she suffers from severe exacerbations which she calls “stints”.
62 The stints come on without warning, without any particular activity. They are like a pinched nerve in the plaintiff’s back, and they are bad enough to cause her to fall to the ground. When she has a stint, she needs to lie down and she is often laid up in bed for three days at a time.
63 The stints come on more often during colder months, and during winter, the plaintiff can have one on average up to three times a fortnight.
64 When the plaintiff experiences a stint, she tends to lie on a mattress on the floor at home, and spends days there, and even tends to do her cooking in the lounge room, relying on an electric kettle. She tends to spend most of the day on those occasions watching television and lying down.
65 The plaintiff’s pain continues to affect her ability to get a good night’s sleep, which she has not had for a long, long time.
66 The plaintiff generally relies on Panadol in order to help with her pain, taking two at a time, on average up to four tablets on any given day. She has also been taking Oxycodone, although she tends to rely on it only when the pain is really bad, as it otherwise makes her sick with symptoms including dizziness. Further, she takes the muscle relaxant, Dothiepin.
67 Since the incident, the plaintiff has put on a considerable amount of weight, now weighing 90 kilograms, having previously weighed 75 kilograms. Her elastic back support no longer fits, nor do the rest of her clothes, but she cannot afford to change her wardrobe.
68 The plaintiff receives approximately $740 a fortnight on a Disability Support Pension.
69 The plaintiff has to rely on others for help, such as her girlfriends, to help with shopping and things around the house. She has particular difficulty making her bed. She tends to clean the shower using a scourer with her foot. She finds it difficult to vacuum the carpet, and relies on an upright cleaner, as otherwise she would not be able to manage.
70 When mopping and sweeping, the plaintiff tends to keep her back as straight as possible to manage it. She has difficulty climbing ladders to change light bulbs, has difficulty cleaning spider webs off the ceiling, and whenever she has to undertake a particular activity, she takes her time.
71 The plaintiff is restricted in her gardening, previously having a large vegetable patch. These days she has nothing in that patch, as she has difficulty digging and planting. There is also a fair bit of lawn to mow, which she has tried to do with a ride-on mower, although she has found that the bumping up and down is hard on her back, and therefore she tries to get her brother to help her.
72 The plaintiff tries not to rely on her parents too much. Her father is a workaholic. Her mother is an avid golfer. The plaintiff feels a big disappointment to them because she is not working, and generally she does not like to ask for help.
73 The plaintiff has difficulty driving. Her car is currently unregistered, as she has failed to pay a toll fine. However, when it was registered, she found it difficult to drive for prolonged periods. She suffered a significant increase in her back pain and was laid up for some time after driving to Bendigo on one occasion to see her uncle. Even being a passenger affects her back pain, and sometimes she needs to rely on the hand side bar to get pressure off her back.
74 The plaintiff has not been able to resume any of the activities she described in her first affidavit.
75 The plaintiff has not looked for work during the last twelve months and does not know what she is suited to. She has complied with various requests from IPAR and undertaken a computer course. She had not heard further from IPAR after that course finished, and she is not sure what type of work that was supposed to get her into. In any event, it only gave her very basic skills.
76 The plaintiff remains very concerned about her future. In the past she has always been employed in hands-on work, including farm work, nursery work and working at a service station. That type of work is really all she knows. She has not undergone any further secondary education since leaving school at Year 11, and she does not know what work she would be suited to.
77 When it was suggested to the plaintiff that she was adaptable in terms of employment, she explained that adapting just to cooking hamburgers was a little bit different to being somebody’s secretary. All she had to do working at the crocodile farm was give minced meat to a crocodile and use a broom.[19]
[19]T58
78 It was not necessarily the case that the plaintiff could just go in to an employer and talk about her vast work experience, but agreed this was the case if the job was “something in her industry”. The work she had done was not “rocket science”.[20]
[20]T58
79 There were some jobs that the plaintiff probably could do without a back injury. She disagreed she could do a job with her back injury which did not involve repetitive lifting or bending or twisting. She disagreed she had the acumen and the physical capacity to do such a job.[21]
[21]T59
80 The plaintiff asked the IPAR representative if she knew of any job which did not have lifting, driving, bending or sitting for too long, or standing too long. The plaintiff came up with the idea of employment consultant at a labour-hire firm, although she has not had any experience in that area.
81 IPAR suggested a vocational teacher at TAFE. The plaintiff did not think she wanted to give that role a try at one time. Probably with retraining she could teach people how to graft plants for florists. She could not do that sort of job now but could have before the incident.[22]
[22]T60
82 IPAR asked the plaintiff to apply for six or seven jobs. She gave them a résumé and they took all that in their hands from there. The plaintiff was not able to do light type employment at that stage, and applied for jobs because IPAR asked her to.
83 The plaintiff would not be able to work as a retail assistant in a shop, as it would involve standing for too long and lifting boxes. If she had a bad stint she would not be able to go to work.[23]
[23]T61
84 The plaintiff has not tried any work, voluntarily or paid, since the incident. She agreed that she was saying she was unemployable. For any job, if she has a stint in her back, it can happen while she is sitting in a chair, let along just standing doing nothing.
85 The plaintiff has made no effort to go back and get her old job as a console operator at a service station. She did not think she would be capable of that role. She answered “No comment” when it was suggested to her that the reason she had not gone after that type of role was she was not motivated.[24]
[24]T65
86 The plaintiff was aware of the jobs involved as a console operator. She could not do any of the jobs, aside from the ordering. She would not be able to respond to an emergency working at a service station.[25]
[25]T66
87 As a result of her financial situation, the plaintiff struggled to even pay things such as her rates, and had to spend some time in jail over Christmas due to her inability to pay same.
88 In recent times, the plaintiff had not had a registered car. She stopped seeing Dr Moynihan from Swan Hill as it is about a 25‑kilometre drive, and instead has been seeing a local doctor in Nyah, Dr Talukder. Even though she knows she is not supposed to, the plaintiff often has driven to him in her unregistered car when necessary.
89 The plaintiff was admitted to Swan Hill Hospital in October 2012 after having two really bad stints in her back. On one occasion, she did not stay overnight and was given tablets and an injection, and the second time she was an inpatient for five or six days and treated with painkillers and morphine injections.
90 The plaintiff agreed on the second occasion on 28 October 2012, she also complained of pain in both arms, and pins and needles in her hands and arms. She was distressed but did not think she was dizzy. The stints started suddenly when she was lying on the couch at home. She thought she was having a stroke, and was told later that she went into shock. She was having problems talking. The left side of her face was drooping uncontrollably. She also had spasms in her hand.
91 Dr Moynihan explained to her she had gone into shock. She did not know how to explain that second occasion.
92 The plaintiff agreed that she has felt frustrated that people do not understand she has a genuine physical injury.[26] It upset her that the Medical Panel assessed her impairment at 5 per cent.
[26]T64
93 The plaintiff has never had a good period since the October 2012 admission, whereas before there were periods when she was better and in not so much pain.[27]
[27]T54
Investigations
94 Dr Spatari organised a CT scan of the plaintiff’s lumbar spine on 29 January 2008. It was reported there was an L5‑S1 disc abnormality which would account for the current symptoms.
95 Dr Moynihan organised an MRI scan of the plaintiff’s lumbar spine in January 2011.
96 It was reported there was mild lumbar spondylosis at L4‑5, asymmetrical broad-based disc bulge, the left greater than the right, resulting in mild compression of the traversing left L5 nerve root with subarticular recess.
Plaintiff’s treaters
97 The plaintiff first saw Dr Moynihan for her back condition in November 2010.
98 In his first report in November 2010, Dr Moynihan noted the plaintiff injured her back in the incident. The pain was only in the low back and not into the leg. As at that date, the plaintiff had returned to work on light duties and when cleaning up cupboards, got sacroiliac joint pain and since then, her legs had gone numb. He was then concerned about that numbness, which he thought may represent a significant prolapse and he requested an MRI scan.
99 That investigation showed an L4-5 disc bulge which was in contact with the left L5 nerve root. That finding corresponded to some weakness of inversion in the left foot. He thought the MRI ruled out a major disc prolapse and noted functionally, the plaintiff had improved with rest and she need neurosurgical review.
100 Dr Moynihan referred the plaintiff to Mr Jithoo, neurosurgeon, in February 2011. He advised Mr Jithoo that the plaintiff was known to him as well motivated and a hard worker. Dr Moynihan noted neurosurgeons were reluctant to review WorkCover cases.
101 During that time, the plaintiff’s legs improved and were no longer numb but the pain in her back remained.
102 Mr Jithoo ordered a neural sheath injection, conducted in August 2011. After that procedure, Dr Moynihan thought the plaintiff was a new person, the pain in her back had completely gone and it was pretty good for several months, but then began to wear off, so each time he saw her, she was in increasing pain and by February 2012, the injection had worn off completely and she was again very distressed.
103 Dr Moynihan was unclear as to why the injection was so effective. He really needed Mr Jithoo to review the plaintiff. He noted it would also be helpful if WorkCover would stop treating the plaintiff as a malingerer and stabilise her payments to enable her to regulate her existence and focus on some body maintenance. He thought there was very likely a musculoskeletal component in the equation by now.
104 The plaintiff presented to Dr Moynihan in June 2012. He noted one of her major problems had been the reluctance of any person involved to accept she had a genuine physical complaint.
105 Dr Moynihan noted the situation had also been extremely stressful for the plaintiff and at times she had been pretty down. Some months earlier, he was sufficiently concerned to start her on an anti-depressant which, however, she did not persist with. He thought the problem was more to do with pain in the general mess her life was in due to injury.
106 Dr Moynihan emphasised that the plaintiff is not a malingerer. He had known her to be a hard agricultural worker over fifteen years. He noted he was a member of the Australian Association of Musculoskeletal Medicine and considered the plaintiff’s present situation to be subacute but not at this time meriting neurosurgical intervention. He hoped to have the plaintiff reviewed again by Mr Jithoo. The financial circumstances consequent upon difficulties with WorkCover payments made this impossible.
107 As of July 2013, Dr Moynihan did not find the plaintiff fit to resume work.
108 Dr Moynihan noted the plaintiff’s financial problems and isolation where she lived.
109 Dr Moynihan noted that the plaintiff had been disappointed that her disability had been assessed at only 5 per cent.
110 Dr Moynihan concluded the plaintiff had ongoing problems from a work-related back injury. Her morbidity had been prolonged by less than optimum insurer management. She was still getting fairly frequent back pain episodes and certainly was not fit for physical duties and he thought she was then taking Endone, 5 milligram tablets, and Oxycodone, twice a day only when her back was bad.
111 Dr Moynihan noted, in his most recent of 14 March 2014, the plaintiff had not gone very far from home and spent a great deal of time on a mattress on the floor recovering from fresh episodes of back pain. He saw the plaintiff in August and October 2013.
112 Whilst the intensity of the pain and disability varied from time to time, the better periods had been short-lived and for the most part the plaintiff had been significantly incapacitated for the whole period, and on that basis, he thought she had a total permanent disability.
113 Dr Moynihan has continued to certify the plaintiff totally unfit for work. In a certificate dated 24 March 2014, he noted she was not fit for any activity, particularly for job searching on foot. He also noted she had weekly physiotherapy, mainly acupuncture, as mobilisation made worse, doing stretches and exercises. L4 root injection had had a partial long-term effect. Diagnosis was “low back injury ? prolapsed disc.”
114 Earlier certificates set out the plaintiff had been in hospital from 28 to 31 October 2012 with very severe back pain associated with this injury. In October 2012, it was noted the plaintiff had had an episode of very severe back pain from June to August.
115 Mr Jithoo wrote to Dr Moynihan in March 2011 thanking him for the referral of the plaintiff.
116 Mr Jithoo reported to the plaintiff’s solicitors in June 2012. He believed her condition was a result of her actions at work. He provided her with a left L4‑5 nerve sheath injection on 6 September 2011 under CT guidance.
Medico-legal examiners
117 Mr David Wallace, neurosurgeon, examined the plaintiff for medico-legal purposes on 7 March 2014.
118 Mr Wallace thought the plaintiff suffered a compression injury of the lumbar spine with its major focus at the L4‑5 level. He believed she suffered internal derangement of the left L4‑5 disc in the incident, leading to the recurring attacks of discomfort that she had suffered since.
119 Mr Wallace thought the injury had rendered the plaintiff permanently more prone to back and leg pain. He thought it highly likely, not having seen the films, that at the very least the plaintiff had an aggravation of previous asymptomatic L4‑5 disc injury or minimally problematic disc injury, but that she more probably had had a very significant compression of the L4‑5 disc which had been the major cause of the subsequent painful clinical course.
120 Mr Wallace thought it was highly unlikely the plaintiff would be relieved of her symptoms by any form of treatment in the short term, and it may well be if her current symptoms continued, she might consider re-undergoing treatment by her treating neurosurgeon, Mr Jithoo.
121 Mr Wallace noted if the plaintiff had an extension of her disc injury with a ruptured disc and significant cauda equina compression, she would require some form of surgical intervention.
122 Mr Wallace thought the plaintiff presented as a thoroughly genuine patient who had been used to very heavy physical work in the past but had suffered a very significant back injury which would trouble her at the very least for some months, and probably years into the future. Given her past history of heavy physical work done with great enthusiasm and stoicism, Mr Wallace thought the plaintiff’s career in such work had been severely threatened by this injury.
123 Mr Wallace was subsequently provided with the MRI scan of March 2014. He thought it undoubtedly showed a significant internal disc derangement with small posterior disc prolapse at L4‑5. He believed this was the cause of the plaintiff’s back and leg pain. He thought the plaintiff was permanently more prone to such symptoms as a result of that injury. If there was deterioration in her condition, expansion of her prolapse, or unremitting sciatica, he considered the plaintiff might ultimately require surgical intervention.
124 In August 2102, the Medical Panel concluded the plaintiff had a 5 per cent whole person impairment resulting from the accepted chronic lower back injury.
Claim documentation
125 The Claim Form relating to the incident was signed by the plaintiff on 1 September 2010. She set out therein that she suffered low back pain while spraying, having lifted a 20‑litre container of Roundup on 1 July 2010. She was then working 40 hours a week, grossing $657.88, at $17.31 an hour.
126 On 7 October 2011, the plaintiff lodged a claim for impairment benefits for the lower back and spine and radiculopathy into the legs on 7 October 2011.
The Defendant’s medical evidence
Clinical notes
127 On 23 November 2007, Dr Zanker noted the plaintiff complained of left buttock and lower left-sided back pain for five to six weeks; no radiation below the knee; sudden onset when bending forwards at home; had seen masseur once. On examination, tender L4‑5 and paraspinally at the same level; acute lumbar intervertebral dysfunction. Continue massage. Tramadol prescribed.
128 The plaintiff attended Swan Hill District Health Emergency on 28 October 2012. It was noted in the nursing assessment that the plaintiff was assisted from the passenger seat of car with severe back pain, panicky, anxious and hyperventilating. She was complaining of pins and needles in both hands, and thought she was having a stroke. It was noted there was a past history of L4‑5 injury two years ago, lifting incident, and going to court. The pain started in the lower back 40 minutes ago whilst lying on the couch.
129 Dr Spatari’s notes set out the following attendances.
130 On 8 January 2008, right sciatic pain for four months and Tramal. On examination:
“Tender L4‑5, L5‑S1 sacroiliac joints.”
131 On 7 January 2009, it was noted:
“Injured back Christmas time. Saw naturopath, acupuncture. Saw doctor in Tooleybuc. Given Celebrex.”
132 On examination:
“Spine not tender – tender muscle, right soft tissue injury, doing exercises, stay on Celebrex.”
133 In March 2009, it was noted:
“Back pain still the same, except for the sciatic element now absent. Refer St Vincent’s Hospital.”
134 On 13 August 2010, it was noted the plaintiff worked at the almond farm:
“Lifted heavy 20-litre container of Roundup and developed back pain in July.
Saw O’Bree, had acupuncture on 11 August 2010. Back quite stiff, still with reduced lumbar flexion. ? WorkCover advises her manager to leave her at home until recovered. On examination there was a diagram showing tenderness over the sacroiliac joint and hamstrings, and spasm higher up the back.”
135 The plaintiff attended Dr Moynihan on 2 November 2010. Dr Moynihan noted that the plaintiff hurt her back in the incident. The pain was only in the low back and not in the leg. She had gone back to work on light duties, and after cleaning ups got two sharp pains over the sacroiliac joints, and then the legs went numb. Dr Moynihan noted the plaintiff was known to him as well motivated and hard working.
136 Dr Moynihan reported on 1 April 2014 that he had been seeing the plaintiff for three years since 2 November 2010 in relation to the back injury. He was previously her treating general practitioner for many years when she was a cheerful, fit agricultural worker.
137 Dr Moynihan advised the plaintiff had been incapacitated during this period as outlined in several reports. Whilst the intensity of the pain and disability varied from time to time, the better periods had been short-lived, and for the most part, the plaintiff had been significantly incapacitated for the whole period. He therefore supported her application for total permanent disability.
Medico-legal examiners
138 Dr Wilson, occupational physician, examined the plaintiff in September 2010, some two months after the incident.
139 The plaintiff told him she experienced a constant low backache with no radiation into either leg. At that stage, she was off work, but she felt she could certainly undertake office work.
140 Dr Wilson noted the plaintiff presented in a straightforward way and gave a history consistent with a lumbosacral strain as a result of the incident. He thought that strain appeared to have substantially resolved.
141 Dr Wilson noted there was no evidence of any pre-existing injury or disease, and the plaintiff denied any previous back problems. He then anticipated her treatment could be completed within two weeks. He anticipated she could be back at pre-injury duties within two weeks, and then be reintroduced to usual duties over a period of two weeks. He expected her condition to fully resolve.
142 The plaintiff was examined by Mr Brownbill, consultant neurosurgeon, in April 2011.
143 The plaintiff told Mr Brownbill about the injury circumstances. Mr Brownbill thought that activity was consistent with resulting in soft-tissue injury to structures about the lumbar spine, likely involving the L4‑5 intervertebral disc.
144 Mr Brownbill noted examination demonstrated absence of the right ankle jerk. He thought the symptoms of pain and leg sensory disturbance were improving but had not resolved, and he did not regard the plaintiff’s injury as having resolved.
145 Mr Brownbill did not consider the plaintiff could return to her pre-injury duties and hours. He thought in the future she would need to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing.
146 Mr Brownbill noted the plaintiff’s apparent tangential replies and poor symptom description represented constitutional factors rather than any embellishment or attempt to mislead. He thought the work relationship was ongoing.
147 Mr Peter Scott, orthopaedic surgeon, examined the plaintiff in April 2012 for the purposes of an AMA assessment. The plaintiff then denied any back problems prior to the incident.
148 The plaintiff complained of mild low back pain if sitting for more than an hour. She also complained of anxiety, depression and stress. The plaintiff complained of longstanding recurring bouts of abdominal discomfort and bloating and diarrhoea.
149 On examination, Mr Scott found no evidence of any lower limb radiculopathy. There was some restriction of lumbar movement. His findings were consistent with the plaintiff having sustained a discogenic problem at the L4‑5 level without any evidence of any ongoing lower limb radiculopathy. He also diagnosed associated anxiety, depression and stress, which may in turn be magnifying the overall situation, resulting in the development of what could best be described as a Chronic Pain Syndrome.
150 Mr Scott believed the plaintiff’s ongoing symptoms related to the incident and the subsequent development of a lot of anxiety and depression and financial distress.
151 Mr Scott thought the prognosis was uncertain in view of the longevity of the symptom complex for which it could be said there had been apparent resolution of lower limb symptoms with a continuation of a back problem and ongoing problems of anxiety and stress, the latter requiring interpretation by a psychiatrist.
152 Mr Scott thought the clinical presentation was consistent with the incident, with the subsequent development of a Chronic Pain Syndrome with anxiety, depression and stress. He believed the condition had reasonably stabilised.
153 Mr McInnes, general surgeon, examined the plaintiff in May 2012.
154 On examination of the lumbar spine, there was some limitation of movement and restriction of straight leg raising, and no neurological abnormality.
155 Mr McInnes thought the plaintiff had an L4‑5 intervertebral disc bulge, resulting in mild compression of the left L5 nerve root that gave her pain in the lower back but no radiculopathy. She was also suffering from clinical depression, mainly as a result of her financial problems and the fact that she was presently unable to work.
156 Mr McInnes believed the plaintiff’s current condition remained a result of her employment and the injury she suffered. He then thought she did not have the capacity to return to her pre-injury duties, but with suitable encouragement from her general practitioner, he believed she would be able to return to some form of suitable duties with no heavy lifting, no twisting, and no bending, within the next three months.
157 Mr McInnes diagnosed intervertebral disc protrusion at L4‑5 related to the incident. He noted the plaintiff would be guided by her medical advisers as to a return to work, but he thought it likely the work would not be heavy lifting, no bending, and no twisting. He thought the plaintiff would probably start on alternative duties and subsequently return to normal hours.
158 Mr McInnes noted there was a degree of clinical depression relating to the plaintiff’s general financial condition, and he understood there was a condition of IBD which would be affecting it.
159 Mr McInnes agreed with the recommendations in the vocational assessment and thought the suggestions of re-employment were appropriate, with the exception of food and beverage attendant, noting the plaintiff may have trouble remaining on her feet for long hours.
160 Mr McInnes believed the plaintiff was an honest worker and that with encouragement she would return to some form of duty within the next three months.
161 Associate Professor Saji Damodaran, psychiatrist, examined the plaintiff in August 2012.
162 Dr Damodaran diagnosed a Chronic Pain Disorder associated with a general medical condition along with a Chronic Adjustment Disorder with Mixed Depressed and Anxious Mood.
163 From a psychiatric point of view, Dr Damodaran considered the plaintiff did not have a current work capacity. He thought that would improve with time and was not going to be indefinite. He thought the prognosis of the plaintiff’s condition was dependent upon effective treatment of her psychiatric condition and the chronic pain, and an associated vocational rehabilitation program.
164 In his clinical opinion from a psychiatric point of view, the plaintiff could not return to her pre-injury duty and hours.
165 Dr Damodaran considered the plaintiff required effective treatment for her current pain condition as well as the psychiatric condition, and after at least six months of treatment she may be considered for returning to alternate duties.
166 Dr Damodaran thought the plaintiff’s persisting Pain Disorder was affecting her activities, mobility, and ability to do the things she was trained and experienced to do. Along with that, she was having an ongoing psychiatric condition which affected her motivation, concentration, energy and sense of enjoyment. This was affecting her overall ability to be motivated and concentrate.
167 Dr Damodaran thought the plaintiff did not have a capacity to do any work at that time. He considered her capacity for work, including a return to work, should be reviewed after six months of treatment.
168 Mr Ian Jones, orthopaedic surgeon, first examined the plaintiff in August 2013. The plaintiff denied any history of previous injury or back injury and symptoms, and told him of the incident. She told him of constant back pain, aggravated particularly by cold, and the recurrence of stints.
169 Mr Jones thought the plaintiff had some symptoms and clinical evidence of an L4‑5 disc disruption. He noted there were some features of the plaintiff’s history and presentation, in particular the complete leg numbness involving both lower limbs, which suggested a functional component.
170 Mr Jones thought the described numbness affecting the plaintiff’s left and right legs could not have an anatomical basis. Its apparent resolution following an injection into the back did not correspond to normal response to either epidural or facet joint injections.
171 Mr Jones thought currently the plaintiff’s level of physical restrictions seemed somewhat disproportionate to the extent of pathology demonstrated on the MRI.
172 Mr Jones was unable to comment on any psychological reaction suffered by the plaintiff. He thought she was currently not fit for any physical work requiring lifting or repeated bending. He was surprised at the described limit of her walking and standing capacity, in light of her physical signs and the available x‑ray information. At least at this point, he believed the plaintiff had the capacity to undertake clerical work or work of a sedentary nature where there was no requirement to lift and bend.
173 Mr Jones was provided with the plaintiff’s clinical history prior to the incident with clinical notes from Dr Spatari in January 2008, early 2009 and August 2009.
174 Mr Jones noted the plaintiff clearly had a previous history of back injury and leg symptoms prior to the incident. The previous history of significant back pain and apparently right-sided sciatica led him to believe the incident had been an aggravating factor to a previously injured lumbar disc.
175 From the additional information, Mr Jones noted the plaintiff appeared to have recovered to a degree prior to the incident, following her previous back complaint in 2008. He noted the previous history of back injury requiring x‑ray and treatment appeared to have predisposed the plaintiff to a recurrence of her back complaint following the incident.
176 On re‑examination by Mr Jones in February 2014, the plaintiff told him there had been no improvement in her back condition. He noted she presented with symptoms and some clinical evidence in the form of a slight restriction of lumbar spinal movement consistent with an L4‑5 disc disruption. He thought there were no signs of any neurological involvement in either lower limb.
177 Mr Jones noted the description of the apparent exacerbations of back pain on two occasions since the plaintiff’s last assessment, requiring transfer to Swan Hill Hospital and admission on one occasion, suggested a functional component to her presenting history. He added, though, he was not in a position to comment on any psychological reaction suffered by the plaintiff.
178 Mr Jones thought the plaintiff’s back condition rendered her unfit for work of a physical nature requiring bending or lifting. In spite of her symptoms, he believed she had a better functional capacity than her history would suggest, and that she would be capable of lifting weights in a standing position of five kilograms. He believed she would be capable of sedentary employment or light packaging or processing work where there was no requirement to repetitively lift or bend.
179 Mr Jones further reported in February 2014, having been provided with NES vocational documents.
180 Mr Jones believed the plaintiff would be capable of working as an employment consultant and vocational education teacher. Although the amount of bending and lifting had not been detailed in the positions of retail assistant and sales representative, Mr Jones would imagine the plaintiff would not be able to perform that work because of her back complaint.
181 Mr Jones thought the plaintiff may have the capacity to undertake work as a casual merchandiser, although the amount of bending and lifting was not specified. He believed she would be capable of working as a mystery shopper and a customer service officer/ trainee.
182 Mr Jones noted there was insufficient detail in relation to the position of sampler and demonstrator to be able to comment on the plaintiff’s ability to perform that type of work.
183 Having been forwarded Mr Wallace’s report, Mr Jones agreed that the plaintiff suffered from the effects of a disruption of the L4‑5 disc involving her lumbar spine. He noted Mr Wallace, however, attributed the plaintiff’s current back condition and disc injury, in particular, solely to the effects of the incident injury. Mr Jones noted clearly Mr Wallace had had no information in relation to the plaintiff’s previous history, and he made no mention of enquiring as to whether she had suffered from any low back problems in the past or undergone any x‑rays or received any treatment.
184 Mr Wallace’s report did not cause Mr Jones to alter his opinion.
185 Dr Mutton, consultant occupational physician, examined the plaintiff in February 2014.
186 Dr Mutton noted there was no significant medical history. Neurologically, examination was normal. There was limited thoracolumbar function, with pain on extension and limited forward flexion. There was no spasm.
187 Dr Mutton thought the recent episodes of back pain in 2013 were difficult to explain, and certainly the neurological symptoms affecting the left side of the body were very difficult to explain and relate to the plaintiff’s back injury. He noted, somewhat surprisingly, the plaintiff had had a very positive response to a nerve root injection, and she hoped to have another with similar benefit.
188 Dr Mutton noted the investigations failed to identity significant pathology that would warrant surgery; however, that was a matter for a surgical specialist.
189 Noting the plaintiff presented with low back pain broadly across the lower back with radiation into both lower limbs, Dr Mutton thought there appeared to be a functional component or psychological reaction. He thought the plaintiff was emotionally labile at one stage. Some of her symptoms were difficult to explain organically. Certainly from a clinical viewpoint there was limited evidence of organic disease, mainly in the form of pain and reduced range of movement.
190 Dr Mutton thought there may well be some overestimation of the degree of disability due to psychological factors, noting that the plaintiff lived at home and managed household duties alone.
191 In view of the objective findings in terms of imaging, Dr Mutton would expect that the plaintiff would be able to undertake a range of duties as previously performed. She may have some chronic low back pain, and under those circumstances she should avoid repetitive bending at the waist, and pushing and pulling, and perhaps restrict herself, given her short stature, to 7.5 kilograms. He expected she would be able to work full-time within those restrictions, but noted, however, she would be subjected to intermittent deterioration that would require absences from work, and she would be better suited to less intensive labouring work.
192 Having been provided with the NES documentation and report, Dr Mutton confirmed his employment restrictions. He believed the plaintiff could work as an employment consultant, retail assistant and sales representative within those restrictions. He noted she did not appear to have the training necessary to work as a teacher, but from a medical point of view, she would be able to do vocational teaching, provided it was not something physically demanding such as carpentry, plumbing, chef or similar.
193 Dr Mutton noted there had been a continuity of symptoms. He therefore thought there was an ongoing relationship with the incident. He noted the issue was the level of complaints, the plaintiff’s ability to live independently as a contradiction and the time since the incident.
194 Dr Mutton thought the plaintiff could undertake duties as a casual merchandiser, customer service officer trainee, and sampler and demonstrator, within the limitations discussed and on a full-time basis. He noted ‘mystery shopper’ by its very nature was variable in demands, and therefore suggested that this be avoided. He thought it was better that the plaintiff work in a position that was well defined in terms of hazards, weights, and physical effort required.
Vocational evidence
195 IPAR conducted an NES vocational assessment in April 2012. Identified suitable employment options in order of priority were employment consultant, labour hire, vocational education teacher, retail assistant and sales representative.
196 In the incident In May 2012, IPAR prepared a job seeker plan relating to those suggested jobs.
Overview
197 I accept the plaintiff suffered a compensable injury to her lumbar spine on the said date.
198 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[28] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[28][2006] VSCA 171
199 No such explanation has been forthcoming in the present case.
200 Whilst there was some mention of a functional component in the plaintiff’s presentation by examiners such as Mr Jones, that issue was not put too highly by counsel for the defendant. However, it was submitted there was a component of functionality about the plaintiff’s presentation to some doctors.[29]
[29]T79
201 The consensus of medical opinion is that the plaintiff damaged the L4-5 disc in the incident, resulting in mild compression of the left L5 nerve root.
202 Whilst there was extensive cross-examination about the plaintiff’s back condition prior to the incident, this issue was raised by counsel for the defendant in terms of the plaintiff’s credit and not on the basis of an argument that this was an aggravation case where the principles in Petkovski v Galletti[30] applied.[31]
[30] [1994] 1 VR 436
[31]T76
203 In any event, I note that there were minimal attendances upon medical practitioners prior to the incident and the plaintiff was able to work full-time in unrestricted heavy work as a cook, and also as a service station attendant.
204 Pathology shown on the pre-incident CT scan was at L5‑S1 and following the incident, there was involvement at L4‑5. [32]
[32]T88
205 Further, Mr Jones, having been provided with the plaintiff’s full medical history, did not think there was an ongoing back problem prior to the incident.
206 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[33]
“… 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.”
[33](2010) 31 VR 1
207 There was a substantial attack on the plaintiff’s credit by counsel for the defendant.
208 As there was no mention in the affidavits of any previous back pain, and a denial when doctors asked the plaintiff about this issue, it was submitted it could not be accepted that she was a witness of truth.[34]
[34]T76
209 Whilst the plaintiff’s attempts to explain the site of her pain before the incident were a bit confused, overall, I accept that, with the level of treatment she received at that time and the fact she continued to do her normal duties, any problems at that time would not have featured prominently in her thinking when she completed her Claim Form or gave a history to doctors in relation to the incident.
210 Generally, I found the plaintiff to a credible, rather unsophisticated witness, who did not exaggerate the level of her pain and restrictions.
211 No medical examiner found exaggeration or embellishment on examination, and Mr Brownbill thought the plaintiff presented as a genuine straightforward historian.
212 Whilst it is apparent from the index to the Defendant’s Court Book that video surveillance of the plaintiff was carried out, no film was shown. Further, there was no other evidence challenging the plaintiff’s description of her level of pain and restriction.
213 As Maxwell P said in Haden Engineering the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
214 The plaintiff continues to suffer from constant and ongoing lower back pain which spreads into both sides, although experiencing no leg symptoms symptoms. On occasions, she suffers from severe exacerbations or “stints” which are debilitating as Dr Moynihan confirmed.
215 The plaintiff has not been challenged on the fact she suffers frequent severe exacerbations of pain. This situation was not challenged in cross-examination.[35]
[35]T89
216 The plaintiff continues to require regular painkilling medication. Having previously been prescribed Endone and Tramadol, she now takes up to four Panadol a day and Oxycodone when the pain is really bad, as it otherwise makes her sick, with symptoms including dizziness. Further, she takes the muscle relaxant, Dothiepin.
217 In Kelso v Tatiara Meat Company Pty Ltd,[36] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[36][2007] VSCA 267 at paragraph [199]
218 The plaintiff has undergone a range of treatment including physiotherapy, acupuncture and a cortisone injection with little longstanding improvement.
219 The consensus of medical opinion is that the plaintiff no longer has a capacity to perform unrestricted manual work due to her back pain and restrictions.
220 This is a serious consequence for the plaintiff given her age, lack of education and experience only in manual work.
221 Whilst the plaintiff worked in a range of fields pre-injury, none of the jobs required any particular skills. As the plaintiff described, none were “rocket science”. Further, a number of the jobs were physically demanding and heavy in nature. Accordingly, I do not accept the submission by counsel for the defendant that the plaintiff has “vast” experience and could easily obtain further employment at the present time, particularly with her back condition.
222 I accept the plaintiff, a woman with an excellent work history, is motivated to return to work, despite her taking no steps in this regard when she was relatively pain free after the injection. In any event, her symptoms returned after a couple of months.
223 The plaintiff is now aged only forty-two.
224 In Stijepic v One Force Group Aust Pty Ltd,[37] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[37][2009] VSCA 181 at paragraph 43
225 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
226 As the plaintiff’s back pain has persisted for nearly four years without significant improvement, I am satisfied the impairment in relation thereto is permanent.
227 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
228 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
229 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
230 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
231 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
232 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – Barwon Spinners Pty Ltd & Ors v Podolak.[38]
[38]Supra
233 I am therefore required to determine a “without injury” earnings figure.
234 Limited submissions were made in this regard, with counsel for the plaintiff submitting the plaintiff’s earning capacity was “totally crushed”.[39] However, it was suggested the “without injury” earnings figure was about $30,000 or $600 per week. On that basis, to suffer the requisite loss, the plaintiff must establish that she doe not have the capacity to earn in excess of $18,000 per annum or $346 per week.
[39]T7
235 Counsel did not suggest a “without injury” earnings figure, but submitted the plaintiff had not established the requisite loss as she had a capacity for suitable employment.
236 Clearly, the plaintiff does not have a capacity for her pre-injury employment. The issue is her capacity for suitable employment.
237 Significantly, the plaintiff’s general practitioner, who has seen her for many years and described her as a motivated, hardworking agricultural worker, considers she is unfit for all work.
238 Given her past history of heavy physical work done with great enthusiasm and stoicism, Mr Wallace thought the plaintiff’s career in such work had been severely threatened by this injury.
239 Mr Brownbill thought, in the future, the plaintiff would need to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing.
240 With suitable encouragement from her general practitioner, Mr McInnes believed the plaintiff would be able to return to some form of suitable duties with no heavy lifting, no twisting, and no bending, within the next three months. The jobs suggested by NES were suitable in his view, save for the food and beverage role.
241 Mr Jones thought that the plaintiff would be capable of lifting weights of 5 kilograms in a standing position. He believed she would be capable of sedentary employment or light packaging or processing work where there was no requirement to repetitively lift or bend.
242 Mr Jones believed the plaintiff would be capable of working as an employment consultant and vocational education teacher. He considered retail sales and sales representative as unsuitable. He thought she may have the capacity to undertake work as a casual merchandiser, although the amount of bending and lifting was not specified. He believed she would be capable of working as a mystery shopper and a customer service officer/ trainee.
243 Dr Mutton thought the plaintiff could undertake duties as a casual merchandiser, customer service officer trainee, and sampler and demonstrator, within limitations and on a full-time basis. ‘Mystery shopper’ should be avoided and he thought it was better that the plaintiff work in a position that was well defined in terms of hazards, weights, and physical effort required.
244 I accept that the plaintiff would have difficulty with prolonged sitting or standing or doing any bending or lifting other than very light weights. She knows from her experience in roles such as a console operator and cook, the onerous nature of the duties involved and the stress they would place on her back.
245 In my view, given the plaintiff’s limited education and training, she would be totally unsuitable for work as an employment consultant or vocational assessor.
246 I accept, because of constant pain and severe exacerbations, the plaintiff would not be a reliable and consistently productive employee.
247 These circumstances, together with her lack of formal training and history of only manual work, in my view, result in the plaintiff’s earning capacity effectively being destroyed.
248 In those circumstances, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of 40 per cent.
249 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
250 The plaintiff has participated in whatever rehabilitation has been suggested, and no jobs have been offered to her nor has she been able to find suitable employment.
251 The plaintiff had significant problems undertaking the computer course. Such problems would be faced by her if she pursued any future training.
252 In 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 she 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 s134AB(38)(g).
253 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd,[40] at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle.[41]
[40][2009] VSC 454 (7 October 2009)
[41][2009] VSCA 170
254 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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