Bradley v Department of Education and Training
[2010] VCC 1632
•21 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04123
| ELISE MAREE BRADLEY | Plaintiff |
| v | |
| DEPARTMENT OF EDUCATION AND TRAINING | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11, 12 and 14 October 2010 |
| DATE OF JUDGMENT: | 21 October 2010 |
| CASE MAY BE CITED AS: | Bradley v Department of Education & Training |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1632 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury claimed for psychiatric injury and low-back and right leg injury in respect of pain and suffering and loss of earning capacity – leave granted for both pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer with | Maurice Blackburn Pty Ltd |
| Mr G Wicks | ||
| For the Defendant | Mr A Moulds | Minter Ellison |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for psychiatric injury and low-back and right leg injury suffered by her in the course of her employment with the defendant since November 2005.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings the application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of body function or (c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The plaintiff relied upon three affidavits, dated 26 March 2009, 27 May and 8 October 2010. The plaintiff, Dr Nigel Strauss, Mr Peter Dohrmann and Dr Brian Lovell were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
6 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999;[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: “… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—[2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”(d) under s.134AB(38)(c) of the Act: “An impairment or loss of a body function … shall not be held to be serious … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
8 By sub-section 38(d) of the Act, the consequences to the plaintiff of a mental or behavioural disturbance or disorder in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, may be fairly described as being more than serious to the extent of being severe”.
9 In addition, sub-section (38)(e) and (f), recite the formula by which loss of earning capacity is to be measured. In relation to loss of earning consequences, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:
(a)
that for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be re-trained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability;
(b)
that as at the date of hearing she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[4]
(c)
that after the date of hearing she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[5]
[4] s.134AB(38)(e)(i) of the Act
[5] s.134AB(38)(e)(ii) of the Act
10 In considering the loss of earning capacity, I am required to take into account the issues of rehabilitation and re-training.[6]
[6] s.134AB(38)(g) of the Act
11 In considering consequences, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.[7]
[7] s.134AB(38)(h) of the Act
12 In reaching my conclusion, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[8] and Grech v Orica Australia Pty Ltd & Anor.[9]
[8] (2005) 14 VR 622
[9] [2006] VSCA 172
13 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments. As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB (38((c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10] ibid
[11] Ibid at [42]
14 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[12]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[13]
[12] S.134AB(38)(j) of the Act
[13] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issues
15 Counsel for the defendant submitted that this was an aggravation case and the aggravation of itself has to give rise to serious consequences. The consequences are not serious on the basis of the physical consequences of the injury, disregarding the psychological consequences or, on the other hand, the psychiatric consequences, disregarding the physical consequences, are not a severe injury.
The Plaintiff’s Evidence
16 In her first affidavit sworn 26 March 2009, the plaintiff deposes that:
•
She was born on 11 February 1948. She is currently married and has two adult children from her first marriage and an adult stepson from her current marriage, all of whom are independent.
•
She is a qualified primary school teacher who worked for thirty years full- time until 1998. The last ten years were spent working at Doncaster Primary School. After 1998, she soon returned to the profession to do some emergency teaching, which included taking classes at Doncaster Primary School. As at December 2005, she had been working at Doncaster Primary School on a permanent contract basis three days per week for twenty-two and a half hours, earning $608 gross per week.
•
In around September 1978, she was involved in a motor vehicle accident. She recalls having some back injury at the time, but it was not ongoing.
•
Around 1988 or 1989, she was required to participate in the school aerobics program. She developed lower back pain when twisting doing the “windmill” exercise. She attended her general practitioner, who referred her to an orthopaedic specialist, and had some physiotherapy. After this injury, she had episodic flare-ups of low-back pain, and from time to time saw her general practitioner and had physiotherapy. However, she does not recall having any significant time off work. She found her symptoms always settled down and she was able to continue working, through the use of painkillers or anti-inflammatories, some physiotherapy, and occasionally wearing a back support.
•
In approximately November 2005, she was teaching art at Doncaster Primary School. The art room was undergoing renovations and so accessing art supplies from the cupboards was awkward. She had to twist and bend to obtain the supplies and then carry them throughout the school to teach classes. Whilst doing this work, she developed low-back pain. She saw her general practitioner, and recalls being prescribed Panadeine Forte. She continued to work through December 2005.
•
On 21 December 2005, she developed severe back pain – a sensation like an electric poker going through her right leg. The pain came on when she was walking down a ramp at school, having spent several days cleaning up and moving furniture into the renovated art room. She rested, hoping that the pain would go away, but it did not. On 30 December 2005, she returned to her general practitioner.
•
In 2006 and 2007, she saw her general practitioner regularly, had some physiotherapy, two MRI scans, was referred to various specialists and undertook two pain management programs.
•
She is currently taking the following medication: Mersyndol, Panadol Extend and Tramadol, which she uses when her pain is severe.
•
She has a constant base level of pain in her back and right leg. Her level of pain fluctuates, with some days being better than others. Most days she has severe pain, even when she uses medication.
•
She struggles sitting or standing for too long, and frequently needs to change position. Her difficulty with sitting makes the following tasks hard: writing, reading, watching television, having a meal, driving a car and being a passenger in a car on long trips. She finds it difficult to bend or lift, which makes undertaking household tasks, such as cleaning and making beds, hard. She also has trouble gardening and vacuuming.
•
Her personal relationship with her husband has been affected by her injury.
17 In her second affidavit, sworn 27 May 2010, the plaintiff deposes that:
•
She continues to have severe pain in her back, right leg and foot. Her level of pain fluctuates, some days are better than others, but she is in pain all the time. Sometimes her pain becomes basically unbearable.
• She see her general practitioner at least once per month. •
She currently takes the following medication daily: Neurontin, Mersyndol Forte, Panadol Forte, Osteo Panadol, and a low dose of the anti-depressant, Cipramil. From time to time she takes Ducene.
•
During 2009, she had an epidural injection. She found this increased her back, leg and foot pain. She felt unwell for about a month after the procedure.
•
She continues to have difficulty standing or sitting for extended periods of time, and needs to change her position and posture to get comfortable. She experiences cramps in her right foot and leg. Her sleep continues to be interrupted by pain in her back, right leg and foot. She continues to struggle with day-to-day tasks, such as writing, reading, watching television and having a meal. She continues to have problems with bending and lifting. She can now do some limited cleaning around the house, but leaves the heavier duties to her husband, such as vacuuming. She can do some cooking and preparing of meals, but also requires the assistance of her husband for some tasks. She continues to find driving difficult and being a passenger on long trips. She is also restricted in her ability to socialise as she did before the injury.
•
In March 2010, she travelled to England for three weeks to visit her daughter, who had just given birth. She found the flight very difficult and painful and had to regularly take medication. She was in pain on the plane and while overseas.
•
As a result of her injuries, she has been unable to return to work as a primary school teacher. She would like to be able to return to work with children. She enjoyed her wok. She planned on working until she was at least sixty-five-years-of-age, but feels that is no longer possible.
18 In her third affidavit, sworn 8 October 2010, the plaintiff deposes that:
•
Her symptoms have continued and she continues to have the same consequences and limitations as previously described.
•
She is currently taking the following medication: Neurontin (100 milligrams five times per day); Cipramil (10 milligrams once per day); Mersyndol (two tablets per day); Panadol Osteo (four tablets per day); and Ducene from time to time. These doses can change if her symptoms are worse.
•
She continues to suffer from depression and anxiety. The Cipramil has slightly eased her symptoms.
Investigations
19 The 6 February 2006 MRI scan of the lumbar spine showed:
(i) A broad-based disc bulge at L4-5 with right foraminal annular disruption causing right lateral recess narrowing with impingement of the right L5 nerve root. (ii) A central disc protrusion at L5-S1 effaces the thecal sac but without causing neural compromise. 20 In June 2007, an MRI scan of the lumbar spine concluded:
(i)
A right concentric annulus fissure lies in the foramen at L4-5 immediately adjacent to the right L4 dorsal root ganglion;
(ii) Small central disc protrusion at L5-S1; (iii) L4-5 and L5-S1 facet joint effusions.
The Plaintiff’s Medical Reports
21 The plaintiff’s general practitioner, Dr Michelle Hesse, provided medical reports dated 19 September 2007, 20 November 2009, 28 May 2010 and 3 September 2010.
22 In September 2007, Dr Hesse diagnosed lumbar back pain with pain radiating to her right thigh, resulting from duties performed at work. Dr Hesse said the plaintiff had experienced episodes of depression. She said the plaintiff was unable to sit or stand for long periods of time. She thought the plaintiff’s capacity for work was affected and the likelihood of recurrence was high. She said the plaintiff’s prognosis was guarded.
23 In September 2010, Dr Hesse said the plaintiff continues to experience low- back pain, ongoing pain and tightness in her right leg, and periods of exacerbation of her symptoms which were related to her duties performed at work in late 2005. She said the plaintiff has a psychological injury as a result of her physical injury and she suffers from significant symptoms of anxiety and depression with pre-occupation with finding the underlying physical defect. She said the plaintiff’s functioning around the home and social interactions have become very limited due to both the physical and psychological aspect of her chronic pain condition. She said the plaintiff continues with the treatment of self-management of her chronic pain condition – medication, home exercise, minimising exacerbations through activity, modification and psychological support.
24 Currently, she is taking the following medication: Citalopram (for anxiety and depression), which was recommenced in February 2009; Neurontin (a neuromodulator) and a variety of analgesics depending on pain levels (Panadol, Mersyndol or Panadeine Forte). She considered the plaintiff’s future treatment will be centred around her self-management of her pain with ongoing psychological support and monitoring.
25 The clinical records of Dr Hesse confirmed that the plaintiff has been consulting her general practitioner regularly in relation to the injuries of which she complains. Further, that Dr Hesse was aware of her past back injury. In a period of three-and-a-half years before November 2005 there were three consultations where previous back injury was raised
26 In September 2007, Mr Brazenor, neurosurgeon, examined the plaintiff at the request of her general practitioner. He considered she was suffering degenerative changes at the lowest two levels in her lumbar spine. He said there was an inconsistency between the plaintiff’s alleged pain and disability and what he could find on physical examination and magnetic resonance scan. He considered the functional features of her presentation exceeded the physical ones, and that the plaintiff was fit to return to teaching full-time and could continue to work until sixty-five years of age.
27 In September 2007, Mr Roy Carey, orthopaedic surgeon, saw the plaintiff at the request of her general practitioner. He understood the plaintiff’s problem developed in the course of her work. He diagnosed a chronic non-specific back pain. He made no assessment of work capacity and did not consider any invasive treatment to be appropriate.
28 In September 2007, Dr Rodney Abud, consultant physician, saw the plaintiff at the request of her general practitioner. On examination, he noted she had difficulty walking because of discomfort, and described pain in the upper medial aspect of the thigh to the knee and the back of the lower leg to the foot. He noted that there was minor weakness of plantar flexion in the right foot and the right knee reflex was decreased. He diagnosed lumbosacral degeneration with disc protrusion as shown on the MRI, and resultant sciatica. He considered it was consistent with an exacerbation of the previous lumbosacral degeneration which emanated from an injury at work in 1989. He recommended rehabilitation at the Donvale Rehabilitation Hospital, which she attended. He noted that, on completion of the rehabilitation program, she had made good progress functionally and had left pain and spasm but certainly no permanent relief. He was unable to provide a prognosis or estimate of future medical treatment.
29 In February 2008, Chris Craig, physiotherapist, reported that he had treated the plaintiff on and off since September 1978 when she required physiotherapy treatment for her back. He said she had consistently presented with discogenic lumbar spine pain and related sciatica pain and that she had disc pathology at both the L4-5 and L5-S1 levels. He considered that the L4-5 injury may have occurred later with anterior thigh pain being reported for the first time in November 2005 after making a bed. He said, up to this time, the nature and distribution of her leg pain was consistent with an L5-S1 disc injury. He thought it would be tenuous to connect the L4-5 injury to an event twenty six years earlier. He considered that the plaintiff would struggle to stand or sit for a long period and would not be able to comfortably handle lifting any object over 10 kilograms in weight. He thought these factors made her chances of being employable very poor. He said that the plaintiff had, in his experience, always been able to keep her problems “under control” with regular swimming and exercise.
30 In February 2008, Mr Myron Rogers, neurosurgeon, saw the plaintiff at the request of her solicitor. He said the plaintiff had suffered from degenerative changes involving the L4 and L5 discs and that he recommended she continue with conservative treatment.
31 In May 2008, Dr Terence Lim, consultant in rehabilitation and pain medicine, saw the plaintiff at the request of her general practitioner. He said in December 2005 the plaintiff, who was working as an emergency teacher, reported that she injured her back, carrying heavy art equipment for two hundred students. She had not been able to return to work since the injury. It was his view that the plaintiff was suffering chronic pain due to her back injury and it was caused by a combination of factors including mechanical back pain, overuse pain due to a misuse of muscles, and the development of central sensitisation as reflected by the development of muscular and myofascial trigger points. He was unable to comment on her present and future capacity for work as he did not treat her.
32 In December 2009, Mr Peter J Dohrmann, neurosurgeon, examined the plaintiff at the request of her solicitor. He said, when examined, the plaintiff stood regularly during the course of the consultation and moved about the consulting room. She was unable to sit still without the need to shake and move the right leg at reasonably regular intervals. In the supine position on the examination couch, the plaintiff had difficulty keeping her right leg still and suffered frequent spasms and cramps in the leg and foot. She complained of hypersensitivity over the right lower lumbar and upper gluteal region, in the right groin and over the medial aspect of the right thigh down to the right foot.
33 Mr Dohrmann said the plaintiff was suffering from chronic low back pain and right leg pain with features of a Chronic Pain Syndrome. There was evidence of disc degeneration involving the L4-5 and the L5-S1 discs. He said the pain described by the plaintiff was neuropathic in nature. There was no objective evidence of radiculopathy. He accepted the injury was consistent with the stated cause. He said the plaintiff had no capacity for her pre-injury work and she had no capacity for any other form of work. He said that was due to the constant leg pain, as well as leg spasms and foot cramps, and her inability to sit for anything other than very short periods or to stand for more than a few minutes without having to walk. He said her prognosis was poor. He considered she would continue to experience back pain and right leg pain on an indefinite basis and that her current level of incapacity was permanent. He said she had no current capacity for work, which was likely to continue indefinitely. He said that this view was taken, having regard to the plaintiff’s age, education, skills and work experience, language, place of residence and the realistic prospect of obtaining employment in the open labour market.
34 Mr Dohrmann was cross-examined. I did not find his evidence particularly compelling and therefore primarily rely upon the evidence in his medical report. However, I do rely upon his opinion that the plaintiff suffered from neuropathic pain. He described the cause of neuropathic pain as being something occurring to the nerve supply to the right leg which has somehow permanently damaged the nerve, or continues to damage the nerve in some way. He said her pain will persist indefinitely.
35 Dr Brian Lovell, musculoskeletal physician, examined the plaintiff at the request of her general practitioner. He provided a report of May 2010 and was cross-examined. He said the plaintiff had a poor sitting tolerance, restricted to about five to ten minutes, with driving being worse, particularly using the brake. Standing tolerance was five minutes before she would need to move. Walking was better. Her walking tolerance was about twenty minutes. He said he last saw the plaintiff in July 2009. It was his view that the plaintiff had ongoing effects from radicular pain and that the L5 nerve root was the main cause of her pain. He said she had insensitivity to the level of allodynia. In summary, he diagnosed a combination of discogenic and radicular pain which had developed into chronic neuropathic pain. He considered the persisting chronic pain had its origin in the original injury described in the incident of December 2005. He concluded that there was a direct conclusion between her work injury and the persistent chronic pain as she presented. He said that, given the investigation and attempt at simple interventional approaches such as transforaminal epidural injection, the prognosis for further intervention was poor. He regarded her situation as unremitting.
36 In June 2010, Dr Nigel Strauss, psychiatrist, examined the plaintiff at the request of her solicitors. He diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, as well as a Pain Disorder associated with a medical condition and psychological factors. He said her prognosis was poor. He described the plaintiff as a restless, agitated, anxious woman at interview, who moved around the room almost constantly and was preoccupied with her pain. He said she had obsessional traits in her personality. She is depressed and frustrated because she cannot finish things. He did not consider she over-exaggerated her problem. He said she was totally and permanently incapacitated which is work-related. He assessed two-thirds of her pain as psychological and one- third as physically-based. He said there was a strong psychological component.
37 In cross-examination, Dr Strauss said the plaintiff was a woman who was sixty-two years of age who had “a reasonably conscientious lifestyle” and worked reasonably hard. He had no evidence to suggest she was deliberately exaggerating or was a malingerer.
38 Dr Strauss was told about the surveillance and the plaintiff’s attendances at shopping centres for long periods. He said that a woman who is agitated and tense is probably better off in that situation than sitting at home in a darkened room. He said he diagnosed an Adjustment Disorder or anxiety, which will be with her indefinitely. He said he looked at these cases holistically. She is a woman who worked conscientiously for many years.
39 He looked at her career as a primary school teacher which he considered was a difficult job. He did not think she could return to teaching or even a sedentary position and thought it would be extremely difficult to find a suitable position for her. He thought it would be extremely difficult for her to cope with whatever position was offered. He was asked whether she could work as a switchboard operator, a ticket seller or a tutor. He said, given her age, the fact she had only ever worked as a primary school teacher, and her relatively rigid personality, he did not consider she could re-train into a new profession and he did not think she would be offered a job given her bad back. He was asked whether she could work as a tutor. He said he did not think she would be successful and the distress that this would cause her would be quite significant. He did not think she could sit with a student for a prolonged period of time, say fifty minutes. He said that a return to work program would be unlikely to work because of her psychiatric factors and the fact she would not succeed.
40 In re-examination, Dr Strauss said that the plaintiff did not cope well with her pain. She has a Chronic Pain Disorder which means that she had experiences of real pain. Her perception of pain appears to be greater than can be explained on organic or physical grounds. It was on that basis that he reached his conclusion that psychological factors were at play in this case, particularly as she reported concurrent symptoms of anxiety and depression.
The Defendant’s Medical Evidence
41 In February 2006, the plaintiff was medically examined by Mr David Chamberlain, orthopaedic surgeon, at the request of the defendant’s insurer. He considered the plaintiff had suffered a lumbar disc strain at work in December 2005 from which she has residual symptoms. He considered she was not unfit for work but was not fit for her pre-injury employment. He thought her condition had been that of a lumbar disc strain which he based on clinical grounds and on the MRI.
42 The plaintiff was examined by Dr Graeme Symington, neurologist, at the request of the defendant’s insurer in August 2006 and March 2007. He thought her condition was unchanged since he examined her first in August 2006. At that time, he considered there had been an aggravation of a previous lumbar disc injury which was complicated by irritation of the L5 sensory root causing sensory disturbance on the dorsum of the foot, and sciatic pain. He said she had a persisting pain syndrome. On the first examination, he thought the plaintiff was not capable of employment as a primary school teacher and he considered there was a significant psychological element present.
43 In March 2007, he considered there had been little change. He said her medication was appropriate and he reiterated that psychological factors were playing a significant part in her presentation.
44 Mr Daryl Nye, neurosurgeon, examined the plaintiff at the request of the defendant’s insurer and provided reports of July 2007, April, May and July 2008. He noted on examination that the plaintiff alternatively stood and sat and was noted to walk about the room. No limp was evident. It was his view that the plaintiff had lumbar degenerative disease and had developed a chronic pain syndrome and he agreed with a colleague that she now had an abnormal illness behaviour. He was of the opinion the plaintiff did not have a capacity for employment which he based on the development of the Chronic Pain Syndrome and an element of the abnormal illness behaviour. He considered her incapacity had been contributed to by the workplace injury which involved an aggravation of pre-existing multi-level degenerative disease in the lumbar spine. He thought her incapacity would prove to be indefinite. He also said that he had considered a vocational assessment, and thought it unlikely that any return to alternative employment would prove successful. He was then asked whether the plaintiff could return to work as a tutor, education officer, call centre operator, switchboard operator or ticket seller. He thought those positions would exclude a need for repeated bending or twisting movements of the spine and would be consistent with the plaintiff’s lumbar spinal condition. He thought that the non-organic factors are likely to inhibit any possible return to employment.
45 The plaintiff was medically examined by Mr Brian Davie, orthopaedic surgeon, at the request of the defendant’s insurer in March 2007 and 2010. He diagnosed a probable lumbar disc strain and considered it was consistent with the plaintiff’s activities at work in December 2005 and he said her employment had materially contributed to the onset of symptoms. He thought it was doubtful whether she had a current work capacity and said she was not totally and permanently disabled although he thought the plaintiff had decided to continue on as she was. He did not recommend she return to work as there could be further recurrent problems. In summary, he thought she probably had a capacity for light sedentary work in the teaching profession, but if she worked, there would be an incidence of recurrent problems and she is probably best to retire. He thought her present complaints were more likely related to anxiety and psychosocial factors.
46 In 2010, Mr Davie said that the plaintiff constantly walked around the consulting room complaining of symptoms of pain in her right leg. He said it was difficult to know the precise physical connection between the plaintiff’s teaching duties and the injury sustained in December, but thought it was most likely a disc injury or disc strain to the lumbar spine. He said he was of the opinion that her symptoms of pain and restriction of movement and disability had a very minor connection with the injury at this stage. He did not consider the injury had had a major effect on her ability to work. He described her as extremely neurotic and had great difficulty in determining any major physical cause for her present complaints.
47 The plaintiff was seen by Dr L R Turecek, psychiatrist, at the request of the defendant in January 2007. He diagnosed a mild chronic psychogenic Pain Disorder. He noted that she was attending her general practitioner. He thought she had a capacity to return to pre-injury duties from a psychiatric perspective.
48 In March 2008, Dr Alan Jager, psychiatrist, examined the plaintiff at the request of the defendant’s insurer. He said the plaintiff was up and down from her seat many times during the interview in apparent pain. He assessed a work-related Adjustment Disorder. He did not consider it would cause any incapacity for employment. He noted that she was on anti-depressant medication until recently.
49 In July 2008, he was forwarded the vocational assessment form from JobStart dated 7 April 2008. It was his view that, from a psychiatric perspective, the plaintiff was able to undertake all of the identified employment options.
50 The plaintiff was examined by Dr Paul Kornan, psychiatrist, in August 2008. He considered the plaintiff suffered a psychiatric injury which presented with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and there are indications of an ongoing Pain Disorder. In overall terms, he assessed her psychiatric state as of a chronic moderate intensity. He considered her employment was a significant contributing factor. He said that the combination of physical factors, together with her psychiatric state, prevents her from working. He said treatment by a psychiatrist or psychologist should be avoided, and the correct treatment is for her to continue consulting her local doctor and rehabilitation specialist. He considered her impairment had stabilised and was permanent.
51 In September 2010, Dr Timothy Entwisle, psychiatrist, examined the plaintiff at the request of the defendant’s solicitors. He diagnosed a Chronic Pain Syndrome and a mild Adjustment Disorder in partial remission. He considered the prognosis for the plaintiff from a psychiatric perspective was good, as she had a supportive husband, benefited from medical, psychiatric, and psychological treatment and pain management. She maintains an interest in a variety of activities and friendships. He considered that her psychiatric condition was stabilised. He considered from a psychiatric perspective she had a capacity for work. He described the plaintiff as genuine, and considered her psychiatric injury was not permanent.
Surveillance
52 I was shown seven DVDs of the plaintiff attending shopping centres. I accept that a DVD/video is a snapshot in time, and that a plaintiff with injuries as she described may have days when she is able to do more activities than on other days. The DVDs showed the plaintiff attending numerous shopping centres sitting at cafés for limited periods, no longer than eleven to fifteen minutes, while she had a cigarette and coffee. She was noted to rise on a number of occasions and, in cross-examination, she indicated that the film did not disclose her right leg moving.
53 I conclude that the plaintiff was not engaged in any activity which was inconsistent with the evidence she gave in Court or gave to her medical practitioners.
Credit of the Plaintiff
54 In general, the plaintiff answered questions directly. She was frank about her past back history. She was keen for the Court to understand how her injury affected her. In cross-examination, she conceded that she walked around shopping centres, but said she did this on instructions from her doctors.
55 I am conscious of the fact that prior to her work injury, the plaintiff presented as a hardworking woman who enjoyed her occupation as a primary school teacher and had been actively engaged in the profession for thirty seven years. I am aware that a number of doctors described her as genuine, and there was no suggestion in any of the medical reports that she was exaggerating her symptoms. The doctors considered she had an organic injury, and that she had a psychological injury. The issue was the extent of the psychiatric condition.
56 The plaintiff’s presentation at medical appointments was consistent, as was the history provided to all doctors she saw. I accept that she is a credible witness.
Analysis of the Evidence
57 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in, the course of her employment with the defendant. All of the medical witnesses accepted that the plaintiff’s injury was work-related. Further, the principal of the Doncaster Primary School swore an affidavit confirming that the plaintiff submitted an incident report in relation to her back and she requested WorkCover forms, which were provided.
58 Where, such as in this case, a plaintiff makes a claim based upon a physical injury and mental disorder (a serious injury application under paragraphs (a) and (c) of the definition of s.134AB(37)), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically based – see Barwon Spinners (supra). The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 59 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and/or loss of earning capacity.[14] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[15] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[16] Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
[14] S.134AB(38)(b) and (c)
[15] S.134AB(38)(b), (c), (e), (f) and (g)
[16] Advance Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170 63
60 I shall consider the narrative test first. Section 134AB(38)(b) requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
(i) pain and suffering; or
(ii) loss of earning capacity-
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
61 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
62 Section 138AB(38)(d) of the Act provides:
“a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless … the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”
63 In Mobilio v Balliotis [1998] 3 VR 833, Brooking JA held:
“…I am not aware of any other decision of the Full Court, or any decision of the Court of Appeal, in which what was said on this point in Turner v Love has been endorsed and, more importantly, in Transport Accident Commission v Dennis [1998] 1 VR 702 the question whether ‘severe’ in para(c) should be equated with ‘serious’ was expressly left open by all three members of the Court of Appeal. I do not, with respect, find the considerations mentioned in Turner v Love sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from ‘serious’ to ‘severe’ betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’. I refer to what was said in this regard by McGarvie J in his dissenting judgment in Humphries v Poljak at 159, without, as I say, adopting any particular adjective to mark the distinction.”
64 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[17] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairment. In addition, the court must be satisfied that the consequences are “more than significant or marked”.[18]
[17] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
[18] …..
65 Counsel for the plaintiff submitted that the plaintiff had a significant psychiatric condition as a result of her employment with the defendant.
66 The defendant’s medical evidence of psychiatric injury includes reports of Dr Turecek, Dr Jager, Dr Kornan and Dr Entwisle. All considered she had a mental or behavioural disorder but varied in extent and consequences. Dr Turecek diagnosed a mild chronic psychogenic Pain Disorder. Dr Jager said she had a work-related Adjustment Disorder. Doctors Turecek, Jager and Kornan saw the plaintiff and made their diagnoses in 2007 and 2008. None of those doctors were asked to review the plaintiff. In 2010, Dr Entwisle diagnosed a Chronic Pain Syndrome and a Mild Adjustment Disorder in partial remission. He said her condition was not permanent, yet Dr Kornan, in 2008, said the plaintiff had an Adjustment Disorder with Mixed Anxiety and Depressed Mood and there were indications of an ongoing Pain Disorder. He considered her impairment had stabilised and was permanent, and that she could not return to work. Dr Kornan’s diagnosis was consistent with that of Dr Strauss.
67 The plaintiff’s medical evidence was more helpful, as were the views expressed by her current treating doctors, Dr Strauss and Dr Hesse. Dr Hesse, general practitioner, had been treating the plaintiff for depression since the injury in 2005, and sees the plaintiff on a regular basis for treatment, and has prescribed anti-depressants since 2006. In 2010, she said the plaintiff had suffered a psychological injury as a result of her physical injury. She said she had significant symptoms of anxiety and depression, however expressed no view on the plaintiff’s ability to return to work. That maybe because she knew the plaintiff was not working, having commented on that fact in her earlier report of 2007.
68 In 2010, Dr Strauss diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, as well as a Pain Disorder associated with a medical condition and psychological factors. He said her prognosis was poor, and would be with her indefinitely. He said she was totally and permanently incapacitated from work, and said two-thirds of her pain was psychological. In cross-examination, he said he looked at the case holistically. That is, he looked at the plaintiff, her personality, her work history, and the demands of her job. I found his evidence most persuasive. First, he was cross-examined. Secondly, he was asked about the effects of her returning to work and, finally, he told the Court why she could not perform the alternative employment suggested. He said she would not be able to cope with a return to work program, and because of her psychiatric problem, she would not succeed. He said the distress that that would cause this plaintiff would be quite significant.
69 The mental or behavioural disturbance must be permanent. The evidence of Mr Strauss satisfies me that the plaintiff will not return to employment. I am aware that the plaintiff has not had specialist psychiatric treatment. However, I note that the defendant’s medical witness, Dr Kornan, said treatment by a psychiatrist or psychologist should be avoided. Dr Strauss said he would not recommend any active treatment. There was no evidence before me to suggest that if the plaintiff had psychiatric treatment her prognosis would be different.
70 I am satisfied that such a condition is a mental or behavioural disturbance or disorder within the meaning of paragraph (c) of s.134AB(38) of the Act of the definition of serious injury.
71 The defendant contended that the consequences of any mental or behavioural disorder from which the plaintiff now suffers are not “severe” as defined in s.134AB(38)(b) and (d).
72 The evidence is that the plaintiff had worked as a primary school teacher for thirty-seven years. Her evidence was that she enjoyed working with children and expected to do so until she was at least sixty-five. In more recent years she has worked part-time. The consequences of her injury are that she has been denied her vocation as a teacher, and any other suitable work. The loss of earning capacity consequences of her mental or behavioural disturbance are that she can no longer return to her employment as a teacher, which on any view is more than significant or marked and at least very considerable.
73 The plaintiff had told a number of her doctors that she would like to return to her employment. I consider the loss she has suffered is significant, as working as a teacher was very important to her. The seriousness of the injury involves a comparison with other cases in the range of possible impairments. I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than serious, to the extent of being severe, when judged by comparison with other cases. The plaintiff therefore satisfies the narrative test.
Loss of Earning Capacity
74 It is then necessary for the plaintiff to satisfy the statutory test laid down by s.134AB(38)(e), (f) and (g).
75 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 76 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. 77 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
78 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the plaintiff 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.
79 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 plaintiff’s earning capacity.
80 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: see Barwon Spinners Pty Ltd & Ors v Podolak.[19]
[19] (2005) 14 VR 622 at paragraph 70
81 Counsel for the plaintiff provided a summary of the plaintiff’s earnings:[20]
[20] Plaintiff’s Court Book, page 26
Financial Year Earnings
Year ending 30 June 2002 $15,918 Year ending 30 June 2003 $91,519 Year ending 30 June 2004 $18,893 Year ending 30 June 2005 $21,890 Year ending 30 June 2006 $26,216 Year ending 30 June 2007 $33,035 Year ending 30 June 2008 $25,027
82 I accept that the plaintiff’s “without injury” earning capacity is $21,890. Sixty per cent of this is $13,134. I accept that the plaintiff’s income for the year ended 30 June 2005 was indicative of what she was earning and capable of earning. The income for the years ending 30 June 2006, 2007 and 2008 was made up of weekly payments of compensation. The evidence is that the plaintiff cannot return to employment. Accordingly, I find that she has satisfied the arithmetic formula established by the Act.
83 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g).
84 The plaintiff has undergone rehabilitation. The medical evidence did not suggest that any further rehabilitation was necessary and appropriate. Accordingly, I do not consider that rehabilitation will alter the situation that the plaintiff has a loss of earning capacity of 40 per cent or more.
85 I am satisfied that the plaintiff has no prospect of re-training and re-education which would enhance her earning capacity. I rely upon the medical opinion that she could not be re-trained because of her injury. Therefore, I am satisfied the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
86 Therefore, I am satisfied that the plaintiff satisfies the 40 per cent requirement and has sustained an injury within the meaning of s.134AB.
87 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of employment with the defendant after October 1999. Because of this finding, I do not need to consider her claim under paragraph (a) of the definition of serious injury in s.134AB(37) of the Act.
88 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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