Broadhurst v Hudson Global Resources (Aust) Pty Ltd
[2013] VCC 1811
•4 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-10-01938
| MICHELLE BROADHURST | Plaintiff |
| v | |
| HUDSON GLOBAL RESOURCES (AUST) PTY LTD & ANOR | Defendants |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 10 October 2013 | |
DATE OF JUDGMENT: | 4 December 2013 | |
CASE MAY BE CITED AS: | Broadhurst v Hudson Global Resources (Aust) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1811 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application under s. 134AB of Accident Compensation Act – compensable injury to plaintiff’s lumbar spine – whether permanent loss of earning capacity consequence at least very considerable – dispute as to the calculation of without injury earnings figure
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Barwon SpinnersPty Ltd&OrsvPodolak (2005) 14 VR 622; Hayhill v Hodge [2006] VSCA 194
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Collis with Mr A. Ingram | Melbourne Injury Lawyers |
| For the Defendants | Mr N. Chamings | Lander and Rogers |
HER HONOUR:
Introduction
1 The plaintiff is 42 years of age. She and her partner have two children born in early 2010 and the latter part of 2011, respectively.
2 The plaintiff holds an Associate Diploma of Accounting and a Bachelor of Commerce Degree. While completing her degree, the plaintiff worked for about two years with a chartered accountancy firm.
3 She deposed that in early 1998 she suffered symptoms of lower back pain and, in January 1998, attended her general practitioner for treatment. X-ray investigation apparently returned a normal result. Relevantly, the plaintiff could not recall any specific treatment for lower back pain or any interference with her employment duties at the time.
4 Subsequently, in the same year she commenced employment with Deloitte Touche Tohmatsu as an Accountant.
5 The plaintiff deposed that she suffered one further period of lower back pain in about 2001. This occurred while she was conducting an external audit for a client. A MRI scan arranged by her general practitioner on 31 July 2001 revealed degenerative disc disease and protrusions at the L4-5 and L5-S1 levels with some nerve root contact. With rest, physiotherapy and over-the-counter medication, within two or three weeks, the plaintiff’s symptoms settled and she returned to her employment on full duties.[1]
[1] Plaintiff's Court Book (PCB) 8
6 The plaintiff had qualified as a chartered accountant and risen to the role of Audit Client Manager when, in 2003, she ceased employment with Deloitte Touche Tohmatsu.[2]
[2] Transcript (TN) 35 and 48
7 The plaintiff was next employed until July 2005 as Chief Financial Officer of International Training Australia Pty Ltd (ITA), a company providing training of personnel. Her role, she agreed, also involved administering and directing other employees.[3] Thereafter, she travelled overseas.
[3] TN 17-18
8 In 2006, the defendant operated a labour hire company for professional personnel. The plaintiff returned from overseas in March 2006. She was employed by the defendant from 30 May 2006 and, later allocated to work as Financial Controller of Melbourne Health at the Royal Melbourne Hospital campus. The plaintiff’s duties involved financial administration. This meant that she regularly carried files or took files home in order to work at home.
9 Under cross-examination the plaintiff agreed that her initial assignment with Melbourne Health was for three months, from 29 June 2006. Subsequently, her contract was extended to 15 December 2006.[4] The plaintiff also told the Court that, prior to the completion of the contract, she declined an offer made by the finance director to work as Financial Controller on a full-time permanent basis. This was, the plaintiff said, because the position wasn't what she had been looking for and, she had intended to move on from Melbourne Health when the assignment was completed.[5]
[4] TN 36
[5] TN 37-38
10 In 2006, at 35 years of age, the plaintiff was an healthy young woman pursuing a career in full time employment and she enjoyed an active lifestyle including bush walking, water skiing, hiking, trekking, travel, badminton and going to the beach.[6]
[6] PCB 14-15 and 19
11 The background matters summarised so far indicate that, prior to commencing her assignment with Melbourne Health in June 2006, any pre-existing degenerative disease involving the plaintiff's lumbar spine was probably asymptomatic.
12 In her first affidavit, sworn on 21 December 2009 the plaintiff deposed that from approximately late August 2006 she noticed some lower back pain and pain extending into her right leg, on occasion throughout the length of the leg. Apparently pain killing medication was helpful in relieving her symptoms.[7] The plaintiff described what happened next in the following words:[8]
"10… My symptoms deteriorated significantly on 28 November, 2006. As was usual, I walked from home and because of the number of files that I had worked on found that my backpack was filled with files and I needed to take a small green recycling shopping bag with the remainder of the files. I walked to the finance director's office for a meeting and was making my way to my own office. As I was walking up a flight of stairs I suddenly experienced a very severe pain in my back and right leg and I fell to the ground (the incident). I was placed on the landing by another staff member in order to rest. I stayed at work for a couple of hours but things were not improving and I called my partner to take me home to rest. I stayed at home over the next few days and had some files sent home and was working lying on the floor.
[7] PCB 9
[8] PCB 9-10
11. On 30 November, 2006 my right leg collapsed under me and my partner called an ambulance but a locum medical practitioner was sent instead. He gave me an injection for pain and said that I ought to be right to return to work in a couple of days. However, my condition did not improve.
12. On 13 December, 2006 I attended Dr Hegarty, the staff practitioner at Royal Melbourne Hospital. He referred me immediately to a Neurosurgeon, Professor Kaye. I was examined by Professor Kaye on 15 December, 2006 and he told me to cease work immediately.…"
13 MRI investigation indicated disc prolapse at the L5/S1 level with marked compression of the nerve root. The plaintiff's condition was not improved by conservative treatment. A repeat MRI scan obtained on 12 April 2007 indicated a minimal central disc protrusion at the L4/5 level and, more significantly, a right para-central disc extrusion posteriorly displacing and mildly impinging the traversing right S1 nerve root.[9]
[9] PCB 29
14 It appears that in June 2007, following an episode of extremely severe back and leg pain, the plaintiff was admitted to the Royal Melbourne Hospital. Professor Kaye's report to Dr Hegarty indicates that, further MRI investigation had confirmed posterolateral disc prolapse causing compression of the S1 nerve root. On 22 June 2007 the neurosurgeon performed a lumbar microdiscectomy, rhizolysis and hemilaminectomy,[10] at the time finding, Professor Kaye said: "a moderately large sequestrated disc prolapse laterally very tightly compressing the theca and nerve root that had been bound down adhesions, probably related to the previous disc prolapse".[11] Also evident from Professor Kaye's report, was his advice that this procedure was intended to relieve the plaintiff’s right leg pain, but might not help back pain caused by degenerative changes in her lumbar spine.
[10] PCB 107
[11] PCB 39
15 As it turned out, initially, the surgical intervention did lead to considerable improvement, in as much as the plaintiff deposed that her leg pain substantially resolved and her back pain was greatly improved.[12]
[12] PCB 11
16 However, since then, notwithstanding ongoing conservative treatment the plaintiff has continued to report variable levels of pain and disability, impacting on her capacity to perform a range of day-to-day activities, including her capacity to reliably engage in suitable employment.
The application
17 By originating motion filed on 6 May 2010, the plaintiff seeks leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
18 The application is made under paragraph (a) of the definition of serious injury, namely, serious permanent impairment or loss of function of the plaintiff's lumbar spine.
19 'Permanent' refers to impairment of the lumbar spine that is: "likely to last for the foreseeable future".[13]
[13]Barwon SpinnersPty Ltd&OrsvPodolak (2005) 14 VR 622 [33]
20 The determination of whether this injury is 'serious' is assessed by reference to the consequences to the plaintiff of impairment of her lower back, which would not meet the test unless the pain and suffering consequence and the loss of earning capacity consequence are when judged by comparison with other cases in the range of possible impairments or loss of a body function, 'fairly described as being more than significant or marked and as being at least very considerable'.[14]
[14] Section 134AB(38)(c)
21 The plaintiff was also required to discharge the burden imposed by section 134AB(38)(e) (i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
22 The plaintiff would not establish the requisite loss of earning capacity, where after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, she has a capacity for employment which, if exercised, would result in her earning more than 60% of the pre-injury earnings as determined in accordance with section 134AB(38)(f). Moreover, she must prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[15]
[15] Sections 134AB(19)(b) and (38(g)
23 Section 5(1) of the Act defines 'suitable employment' such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
The evidence called and tendered
24 The plaintiff attested to the accuracy of her two affidavits sworn on 1 October 2012 and 17 September 2013, respectively. She was cross-examined at length. The affidavit of her partner, Stephen Dickinson Kenny, also sworn on 1 October 2012 was not challenged. His evidence served as corroboration of the extent to which the plaintiff struggled on a day to day basis due to pain and disability, with particular emphasis on her problem in sitting for more than a short time. The latter is one of a number of factors relevant to an assessment of the plaintiff's loss of earning capacity for the foreseeable future.
25 The plaintiff and the defendant tendered extracts from their respective Court Books. The material tendered by the plaintiff consisted of multiple reports of radiological results, reports from the treating doctors and medico-legal specialists, a vocational assessment prepared by psychologist, Mr Tsironis, dated 13 September 2012, a report prepared by forensic accountant, Mr Allan dated 8 October 2012, a report dated 16 October 2012 and prepared by, human resources consultant, Ms Meilak from recruitment training firm, Flexi Personnel and a copy of the WorkCover Employers Claim Report dated 17 May 2007.[16]
[16] Exhibit P1
26 In addition to reports from medico-legal specialists, the defendant tendered an undated copy of a position description for a financial controller, an assessment of the plaintiff's occupational capacity, dated 21 February 2011, prepared by CoWork Pty Ltd, Candidate/Client notes which record an interview with a recruitment consultant on 27 April 2009, in particular page 165 and the affidavit sworn by the defendant's Employer Relations Specialist, Sylvia Kaczmarek on 15 August 2013.[17]
[17] Exhibit D1
27 The defendant also tendered copy tax returns for the financial years ending 2004 to 2010 inclusive,[18] extracts from the Slade Group subpoenaed documents, namely an undated memo from the plaintiff to Peter Payne and e-mail correspondence dated 6 October 2009,[19] and, lastly, extracts from Robert Half International subpoenaed documents including a profile for the plaintiff dated 17 April 2009.[20]
[18] Exhibit D2
[19] Exhibit D3
[20] Exhibit D4
Compensable injury
28 That the plaintiff suffered compensable injury to her lower back arising out of or in the course of her employment with the defendant on or after 20 October 1999 was not an issue in this proceeding. The evidence of treating and medico-legal doctors indicates that the incident likely aggravated pre-existing degenerative disease and involved disc prolapse.
29 Additional to the medical evidence of the treating doctors already mentioned, the evidence of specialists on both sides was to the following effect:
Ø when reporting to the insurer on 13th February 2008 consultant occupational physician, Dr Barton appears to have accepted that the onset of back and leg symptoms following the incident were attributable to disc prolapse;[21]
[21] Defendant's Court Book (DCB) 3-6
Ø when reporting to the insurer on 14 January 2009 orthopaedic surgeon, Mr Kierce diagnosed: "Work related aggravation of pre-existing lumbosacral degenerative disease resulting in lumbosacral disc prolapse with radiculopathy due to compression of the right 1st sacral nerve root. In spite of appropriate surgery she is still suffering with low back and residual right leg pain";[22]
[22] DCB 24
Ø in his final report dated 16 September 2013 and addressed to the defendant's solicitors, among other things, orthopaedic surgeon, Mr Dooley said: "… I remain of the view that Ms Broadhurst in late November 2006 sustained a right-sided lumbosacral disc prolapse after lifting and manoeuvring a bag of files during the course of her work. Because of persisting right-sided sciatic pain, she underwent a right-sided lumbosacral discectomy. Overall I believe that Ms Broadhurst obtained the result that one would expect from this surgery, i.e. substantial improvement in the sciatic pain. A disc prolapse does involve some aggravation of the underlying degenerative disc disease and therefore after so-called recovery, whether this be via natural or surgical means, a patient will note some ongoing intermittent low back pain and some lower limb pain…";[23]
Ø in his second report dated 25 September 2012 addressed to the plaintiff's solicitors, neurosurgeon, Mr Klug confirmed that he remained of the opinion: "that as a result of the incident occurring during her employment there was a substantial aggravation of a pre-existing disorder leading to the need for various forms of treatment including a surgical procedure. Although there has been some improvement following the treatment I would see no reason to doubt that she continues to complain of symptoms of the type described that these are a consequence of the original disorder occurring during her employment".[24] More recently, having re-examined the plaintiff on 3 September 2013, Mr Klug said: "I remain of the opinion that she continues to suffer from an ongoing physical disorder of the lumbar spine. It would appear that despite a surgical procedure and other forms of treatment she suffers from chronic pain related to such a condition. As such I believe her prognosis would have to be considered very guarded. I feel it is now more likely than not that her current symptoms will persist with some waxing and waning in all probability for an indefinite period";[25]
Ø having re-examined the plaintiff on 4 July 2013 at the request of the plaintiff's solicitors, orthopaedic surgeon, Mr Khan said: "I consider that her employment and occupation at Hudson Global Resources Pty. Ltd. Resulted in the development of a large L5/S1 disc prolapse and flare-up of disc desiccation in her lower 2 lumbar discs, which has resulted in persistent high-grade pain in the lower part of the back and right buttock area, with intermittent flare-up of pain going down the right leg and pins and needles and paraesthesia down the leg".[26]
[23] DCB 31c
[24] PCB 88
[25] PCB 92
[26] PCB 118
30 The defendant conceded the pain and suffering component of the application, leaving for determination the claim in respect to permanent loss of earning capacity.
The dispute
31 In this application, the defendant disputed the basis for calculating the plaintiff's without injury earnings figure, as determined in accordance with section 134AB(38)(f), namely the sum that most fairly reflected her earning capacity had injury not occurred. I will return to this issue shortly.
32 While it was indicated on behalf of the defendant that there were no significant credit issues, the plaintiff was repeatedly challenged about her attempts to return to or enhance her qualifications for suitable employment either in a full-time or part-time capacity.
33 The plaintiff, an articulate and intelligent individual, was an impressive witness. She gave her evidence in a straightforward manner. I saw no indication of exaggeration or embellishment of her evidence. The crux of the challenge mounted by the defendant was that, having had two children between 2010 and 2011, currently the plaintiff was busy being a mother. Caring for her children full-time, it was submitted, not serious and permanent work-related impairment of the plaintiff’s lumbar spine, was responsible for her failure to pursue a career as a financial professional or in other regular suitable employment.
34 The plaintiff was undoubtedly correct when, under cross-examination she said: "… Women work with children, and work well and have good careers".[27] This observation was her response to the suggestion that the plaintiff would find it difficult to commit to working more than a limited period each week, particularly given her partner's absences travelling due to his work commitments as a mechanical engineer. It was a robust rejection of the wider implication that, motherhood and her family circumstances, not injury-related incapacity prevented the plaintiff from pursuing her career or fully exploited any residual earning capacity.
[27] TN 52
Treatment and employment post surgery
35 Following a period of recovery, Professor Kaye indicated that the plaintiff could return to part-time work by gradually increasing her duties. In February 2008, while Dr Barton considered the plaintiff's condition unresolved he, nonetheless, envisaged a graduated return to normal office type duties four hours per day, five days per week.[28]
[28] DCB 6
36 However, the plaintiff deposed that by early 2008 the level of her lower back pain had increased, with intermittent numbness in her right leg, foot and ankle as well as problems in her left leg.[29] Her treating doctors all recommended ongoing conservative treatment and rehabilitation.
[29] PCB 11
37 Between June 2008 and July 2009, the plaintiff returned to work on a contract basis with the defendant, gradually increasing her hours from one hour per day to about 15 hours per week until the defendant ran out of further work for her to perform.[30]
[30] PCB 13 and TN 18 and 51
38 Shortly after returning to work, however, the plaintiff was referred by her general practitioner to senior rehabilitation physician, Dr de Graaff at Epworth Rehabilitation. As his very detailed final report dated 15 September 2013 confirms, Dr de Graaff has continued to treat the plaintiff since her initial consultation on 29 July 2008.[31]
[31] PCB 144-149
39 Among other things, his report indicates that, when first seen, the plaintiff was working in administrative duties, two afternoons for 2 hours per week. She reported a walking tolerance of around half an hour and sitting, standing and driving tolerances of 20 minutes. Notably Dr de Graaff recorded that the plaintiff persisted with activities beyond her tolerances, which, she reported, led to severe pain.[32]
[32] PCB 145
40 As we now know, Dr de Graaff arranged for the plaintiff to participate in a pain management and musculoskeletal rehabilitation program as an outpatient between 15 October 2008 and 1 December 2008. According to the plaintiff, the program helped her deal with her symptoms.[33]
[33] PCB 12-13
41 Shortly after completing the program, on 14 January 2009, Mr Kierce examined the plaintiff. Among other things, he was advised that, having returned to work on a graduated program monitored by her general practitioner, by Christmas 2008, the plaintiff was working up to 14 hours a week on alternate days.[34]
[34] DCB 19
42 This orthopaedic surgeon concluded that the plaintiff was permanently incapacitated for any work involving prolonged or frequent bending, lifting of weights greater than 15 kg or manual handling of any note. Allowing for the progress made and, despite the plaintiff's reports of significant back pain with radiation of pain down her right leg into the foot, Mr Kierce envisaged (in the circumstances somewhat optimistically) a return to the plaintiff's pre-injury duties within three months of the examination date.[35]
[35] DCB 25-26
43 In my view, Dr de Graaff probably best described the plaintiff's circumstances in the six months prior to the cessation of her employment when he said: "she battled along".[36]
[36] PCB 146
44 For instance, Dr de Graaff said that, when reviewed on 4 February 2009, the plaintiff reported two significant flare-ups of pain following gym and swim activities. Furthermore, having added the anti-inflammatory, Voltaren to a medication regime which already comprised Panadol osteo, Panadeine Forte and Valium (the latter to treat muscle spasms), the plaintiff later reported that this had not provided prolonged pain relief.
45 The plaintiff said when her employment ended with the defendant in July 2009, she had not known that she was pregnant with her first child.
46 During 2009 the plaintiff sought assistance from recruitment specialists, including the defendant, Robert Half International and the Slade Group, to secure ongoing employment. To this end she submitted a profile document in April 2009.
47 The plaintiff was cross-examined in some detail about a record made of an interview on 27 April 2009 with the defendant's recruitment consultant, Mr Ingham, entries contained in her profile document and correspondence exchanged with the Slade Group consultant, Mr Payne.[37] In these documents the plaintiff indicated her interest in obtaining full-time employment (in interview: "back to full health and looking for K or perm role – pref for growing SME (sic)…"[38], in her profile document: "I am now ready and look forward to rejoining the workforce in a full-time capacity"[39] and, now pregnant and apparently having missed out on a position, in an e-mail dated 6 October 2009: "I am not out of the work scene yet – If you hear of anything available from now to New Year I would be delighted to hear about it. Part-time roles would suit perfectly as although I'm currently working around 40 hours per week on my new business venture I could curb that back as necessary if a contract came up"[40]).
[37] DCB 165 and Exhibits D3 and D4
[38] DCB 165
[39] Exhibit D4
[40] Exhibit D3
48 Under cross-examination, the plaintiff recalled indicating to the defendant's recruitment consultant, Mr Ingham, her preparedness to consider a full-time permanent position in a small to medium enterprise with a salary expectation of $150,000 plus. The plaintiff also agreed that at around the same time she had contacted employment consultants, the Slade Group and expressed enthusiasm for a full-time position as chief financial officer of VECCI.[41]
[41] Exhibit D3 and TN 19-22
49 Based on the evidence of the limited hours worked with the defendant between June 2008 and July 2009, I was satisfied that, as claimed, a reference in the profile document to her then working between three and four days per week with the defendant was probably an error in a document, the plaintiff agreed was submitted to the Slade Group.[42]
[42] TN 20
50 If one accepts, as I have, that the plaintiff was at the time a highly motivated individual who expected to pursue her career in paid employment, the plaintiff’s evidence that, in 2009, she applied for full-time permanent positions to see how her back held up because she had struggled to find part-time work, is plausible.
51 Applying similar reasoning, it is also plausible that the plaintiff had, as claimed, tried to appear to be active to enhance her prospects of at least part-time employment when, well into her pregnancy in October 2009 she informed a consultant from the Slade Group that she was working 40 hours a week on a new business venture. At hearing, the plaintiff told the Court that she wasn't working 40 hours per week on a business venture, rather she was trying to develop her skills to more effectively use the Internet.[43]
[43] TN 22-23
52 By the time she swore her first affidavit on 21 December 2009 the plaintiff was in the advanced stages of pregnancy, which she deposed placed additional strain on her spine and precluded medication other than over-the-counter medication for pain relief.
53 The younger of the plaintiff's two children was a one year old when the plaintiff swore her second affidavit on 1 October 2012. In the interim the plaintiff had continued to consult the rehabilitation specialist, Dr de Graaff and had, she said, ceased breastfeeding both children at about three months of age in order to resume taking medication. As Dr de Graaff’s evidence confirmed, the plaintiff had reported flare-ups two to three times a week and, with only Panadol to control pain, pain management during each pregnancy had been difficult.
54 When reviewed on 19 November 2011, the plaintiff’s condition had deteriorated. She reported constant back pain, rated at 5 to 6/10 and right lower limb neuropathic pain rated at 7 to 8/10, with marked spasms particularly at night.[44] Dr de Graaff placed the plaintiff on a weaning dose of prednisolone and arranged for repeat MRI scan of her lumbar spine. Due to a delay in funding, this study did not take place until June 2012.
[44] PCB 147
55 The MRI study on 8 June 2012 to investigate persistent low back pain and right L5 radiculopathy, indicated some deterioration on the plaintiff's condition. Among other things, this further scan identified disc desiccation at the L4/5 level and disc desiccation and a central disc extrusion at the L3/4 level but no significant neural compromise. The disc desiccation and extrusion at the L3/4, was a new finding.
56 The plaintiff deposed to taking a number of medications after the birth of her second child in the latter part of 2011. In October 2012, she was taking the opiod, Tramal, 50 to 150 mg per day depending on the level of her pain, the anti-inflammatory medication, Brufen and an antidepressant medication, Dothiepin, which at 75 mg per day was also intended to assist with sleep and in the control of pain.[45]
[45] PCB 17 and PCB 76
57 The plaintiff deposed that her domestic activities, including the demands of caring for her young children, even with home help for 1½ hours each week and childcare two days a week, placed a significant strain on her back.[46]
[46] PCB 22
58 I understood from the plaintiff's evidence that the child-care arrangement had commenced for each child from about the age of 12 months because the plaintiff could not physically manage them on her own for five days per week.[47] No doubt, the decision to reduce the burden on the plaintiff by using child care at a net current cost of $500 per week was also influenced by the limited assistance available from immediate family living interstate and from her partner whose work involved regular periods of travel overseas. Accordingly, from about February 2011 one child was in child care each week and from about September 2012 both children were in child care, two days per week.
[47] TN 26
59 On 21 February 2011, at the request of the defendant’s solicitors the plaintiff was interviewed by CoWork Pty Ltd occupational therapist, Ms Bryant to assess her occupational capacity.[48] According to the report made, the interview included discussion of the plaintiff's occupational interests and her motivation for work. I note that Ms Bryant appears to have selected and quoted some parts of the responses given by the plaintiff but not the questions to which she responded.
[48] DCB 94-125
60 The plaintiff was cross-examined at some length about statements attributed to her as follows:[49]
"… I have thought about having my own business but it's very difficult to start if you don't have start up cash. I couldn't risk that this time… If I could get [her son] some childcare I could complete a directorship course at the Institute. I would have to be careful the choices are made as a directorship comes with a great deal of responsibility; I don't want to put my family finances at risk. I would need a clear vision of what I would accept and not be desperate. I'm not interested in projects that would be too full on."; and
"… I see my future and it will be fine. I would like work for two days that are flexible, if it could be in a function that is rewarding and where I am valued at my optimum and adding some value to the company."
[49] DCB 108
61 Under cross-examination the plaintiff told the Court that there had been a lot of discussion with Ms Bryant. As part of this discussion the plaintiff said they had spoken of the difficulty in obtaining part-time work in the finance industry. Given the purpose of the interview, I found the plaintiff's evidence to the effect that, the statements attributed to her were made in response to Ms Bryant asking whether she (the plaintiff) had thought about starting her own consulting business and whether she would consider completing a directorship course, entirely plausible.[50]
[50] TN 39
62 So too was the plaintiff's explanation that reliance on her existing qualifications and expertise to seek part-time employment was preferable to risking her family finances on the costs of additional child-care and of starting up a new business or by investing in further education, where these steps may not enhance her prospects of gaining part-time work.[51]
[51] TN 39-40
63 The information about the company directors course attached to the CoWork report certainly shows that the company directors course is costly (in February, $5900 for members and $8500 for non-members) and required the equivalent of 110 hours study.[52] The plaintiff, nevertheless, agreed that she was qualified to undertake this course and, further agreed that she had the capacity to undergo further study, albeit on a part-time basis. She, however, questioned (in my view correctly) whether additional training to qualify to work as a director would improve her prospects of gaining suitable employment, particularly where working as a director could require attendance at long meetings whilst seated in a stationary position.[53]
[52] DCB 123
[53] TN 40
64 Ultimately, as my findings in due course indicate, based on all of the evidence, I concluded that this level of training or other training/study was unlikely to result in the plaintiff earning more than 60% of her pre-injury earnings determined in accordance with the Act.
65 As we now know, the plaintiff did obtain short-term, part-time employment with an accountancy firm for two days a week commencing in October 2012, which she struggled to maintain. Having regard to particularly the evidence of her treating doctors,[54] I was satisfied that the plaintiff's evidence that she decided to see how she managed working only two days a week was probably driven by the level of her disability and her doctors' advice not, as the defendant submitted, by her family responsibilities.[55]
[54] Dr Hegarty and Dr de Graaff, PCB 52-53 and 147 respectively
[55] TN 40-41
66 In a letter dated 16 July 2012, addressed to treating general practitioner, Dr Hegarty, Dr de Graaff attributed ongoing issues in the plaintiff's back and legs to discogenic pain. Consistent with the plaintiff's understanding that there was no basis for referral for further spinal surgery, Dr de Graaff advocated ongoing exercise in conjunction with medication and further weight loss.[56]
[56] PCB 76 and 147
67 Despite experiencing what the plaintiff described as "constant but variable levels of lower back pain", with referred pain particularly affecting her right leg and foot and to a lesser extent affecting her left leg,[57] as mentioned, on 9 October 2012 the plaintiff commenced an eight-week consultancy contract with an accounting firm, working two days per week. She was remunerated at the rate of $770 inclusive of GST per day. Evidently one of the advantages of this contract was that it allowed the plaintiff some flexibility as to when and from where she worked.[58]
[57] PCB 18
[58] PCB 19
68 The plaintiff denied that the rate at which she was paid for this part-time contract fell just short of 40% of her previous earnings.[59] I will discuss this issue further shortly.
[59] TN 25
69 As we now know, the plaintiff's contract was extended by some 13 weeks until March 2013 and concluded, she said, one month short of the end of her contract because the client decided that they no longer required the work she had been performing.[60]
[60] TN 24-25
70 In her affidavit sworn on 17 September 2013 the plaintiff deposed that, while she worked approximately 8 hours per day, up to a third of her work was undertaken at home.
71 Under cross-examination, the plaintiff said she had not worked consecutive days on her doctor's advice. [61] She estimated she had worked from between 15 and 20 billable hours per week. Furthermore, other than the restriction on her moving freely in client meetings, the plaintiff agreed that she could move around and take a break at work as needed. The plaintiff further agreed that she had driven some 23 km each way on the days she attended her employer's workplace.[62]
[61] TN 30
[62] TN 28-30
72 Importantly, the plaintiff deposed that she had struggled with this work and, in February 2013, suffered a significant flare up in the level of her symptoms and referred pain down both legs, the right being worse than the left. This episode, the plaintiff said, had prompted Dr de Graaff to recommend that she cease work.[63]
[63] PCB 21-22
73 Moreover, I note that, under cross-examination the plaintiff recalled having worked three days in one week, after which she had to take the next week off work. She further recalled having declined her employer's request to work full time to complete the job more quickly, because she was, she said, physically unable to cope with more than two days per week.[64]
[64] TN 25-26
74 The reports from the plaintiff's treating doctors covering this period, paint a picture of an individual trying to manage long-standing and disabling low back discogenic pain with symptoms of sciatica who, as Dr Hegarty said, had tried to normalise her life by participating in the workforce.[65]
[65] PCB
75 For instance, in his report dated 26 October 2012, Dr Hegarty recorded, among other things, that the plaintiff's level of pain limited the amount of time she could spend sitting in a chair in her workplace, whereas having the flexibility to do most of her work at home had enabled the plaintiff to work in short spells and lie down if needed.[66] However, by September 2013, while this doctor accepted that a return to part-time work had been good for the plaintiff's overall well-being, he also believed that, working had worsened the plaintiff's pain levels, more significantly so in relation to her right lower limb sciatica.[67]
[66] PCB 53
[67] PCB 54
76 Having reviewed the plaintiff on 3 December 2012, 17 June 2013 and 16 September 2013 Dr de Graaff relevantly noted the following:[68]
[68] PCB 147-148
"In December 2012 she was working 2 days per week developing business strategies with an accounting firm. She was set up ergonomically at the worksite and utilising laptops. She was struggling with the physical challenge and was sore and fatigued by the end of her shifts.
Her medications included Tramadol SR 100 mg mane and 150 mg nocte with Brufen as required.
She clearly had ongoing mechanical back pain and associated neuropathic pain in her legs…
Towards the end of the project, Ms Broadhurst struggled with her back and leg pain, particularly on the right. Her pain had not settled even with ceasing work.
Her general practitioner had commenced her on Lovan 20 mg daily and this had assisted her mood. She was requiring Brufen 400 mg once or twice a day, after food, to assist with her pain.
She had taken on-board a home exercise program with walking 50 minutes 3-4 times per week and managing on a day to day basis to do her lumbar core work. The right lower limb pain and back pain did limit her ability to care for her children.
I suggested a trial of Prednisolone given that there was an element of radicular features and information noted.
When reviewed on 16.9.2013 Ms Broadhurst continued to struggle. However, she did note that when she did utilise the Prednisolone after the previous visit, there was an improvement in back and leg pain and she felt more energetic.
Certainly she was describing some dysaesthetic pain in the low back as well as the right lower limb. Her symptoms had deteriorated in the previous weeks prior to seeing me.
I recommended a further course of Prednisolone orally. I have encouraged her to remain as active as possible and plan to review her again on 06.12.2013."
The current medical evidence of loss of earning capacity
77 As at September 2013, the plaintiff's treating doctors, Dr Hegarty and Dr de Graaff were not confident that the plaintiff could maintain work for even two days a week or, indeed, reliably attend a workplace. Dr Hegarty thought the equivalent of two days per week represented the upper limit of the plaintiff's capacity for employment and, that such work would come at a cost in terms of pain and the impact on the plaintiff's underlying depression.[69] For the purpose of this application, any contribution made by the plaintiff's psychological response to pain and disability is not a relevant consideration.[70]
[69] PCB 55
[70] Section 134AB(38)(h) of the Act
78 On the other hand, Dr de Graaff felt that the likelihood of the plaintiff increasing her hours beyond two days per week, even with rehabilitation and pain management was remote. He predicted the plaintiff would struggle with limited to modified duties and with limited hours and, intermittently she would require medical, physical and psychological assistance particularly after a severe flare up of her pain.[71]
[71] PCB 148-149
79 The concerns expressed by the treating doctors find some support in the evidence of Mr Klug. Having examined the plaintiff twice, as mentioned, in September 2013, he considered the plaintiff's prognosis to be "very guarded", with the likelihood that her symptoms would persist "with some waxing and waning in all probability for an indefinite period".[72] Mr Klug opined that chronic pain would prevent full-time work and, in September 2013, he was not confident that the plaintiff was fit for even part-time work. Mr Klug, nevertheless, anticipated an eventual return to part-time work, but only work that offered considerable flexibility and allowed the plaintiff to avoid situations that could aggravate her low back disorder.[73]
[72] PCB 92
[73] PCB 93
80 Mr Khan also examined the plaintiff twice and, in September 2013, among other things, informed the plaintiff's solicitors that in his opinion, the plaintiff had been left with a "fairly severe" partial permanent disability. She was, he said:[74]
[74] PCB 118-120
Ø unable to perform activities requiring sitting or standing for long periods, any work involving excessive bending, twisting and turning of her spine, keeping her back bent for long periods, walking for long periods, climbing up and down or lifting weights exceeding 5 kg at a time;
Ø unfit to perform her pre-injury duties working full-time as a financial controller;
Ø fit for full-time alternative employment provided the restrictions mentioned applied and the plaintiff was given the opportunity to rest and only sit and stand within her tolerance and capacity. Notably, despite his belief that the plaintiff was fit for alternative employment Mr Khan, nonetheless, envisaged the plaintiff needing time off if any alternative employment exacerbated her condition. In other words, Mr Khan also foreshadowed unreliability in the workforce by reason of the plaintiff’s lower back condition.
81 Mr Dooley last examined the plaintiff at the request of the defendant's solicitors on 15 August 2013.
82 As his report shows, Mr Dooley had understood from the plaintiff that the part-time work performed by her on non-consecutive days from October 2012 had exacerbated the level of her pain, requiring courses of oral steroids for pain relief. This work had also resulted in the plaintiff spending Saturdays in bed to recover. Despite this evidence, Mr Dooley reasoned as follows:
"In a world where political correctness under the guise of corporate compromise dominates, one is wary of making comments but I believe there are some reasonable comments to make in this situation. Ms Broadhurst is aged 42. She has two young children aged 2 and 3 years. Her partner is away regularly because of work commitments. Clearly this does place a strain upon Ms Broadhurst and clearly many of the activities involved in looking after young children can also place a strain upon the lumbar spine. In my view, if one looks at Ms Broadhurst’s situation unemotionally from an orthopaedic point of view only, she would have the physical capacity to carry out accounting/financial controlling/business strategy consulting work on a half time to two thirds time basis".[75]
[75] DCB 31c-d
83 In this case, the plaintiff's evidence, supported by the treating doctors was that, even with her children in childcare two days per week she had struggled to work for two non-consecutive days for between 15 and 20 billable hours per week. If Mr Dooley intended to indicate that the plaintiff's physical capacity for work should be determined in isolation from other daily strains on her lumbar spine, including caring for her children outside working hours, his conclusion that the plaintiff would have the physical capacity to work between 20 hours per week and 26 hours per week, is hard to justify.
84 Mr Dooley did, nonetheless, accept the possibility that intermittent acute exacerbations of pain would impact on the plaintiff's activities. Had he been asked this question, I expect Mr Dooley would have accepted the likelihood that, for the foreseeable future, the plaintiff's susceptibility to intermittent acute exacerbations of pain would impact on her reliability as a participant in the workforce.
85 The vocational assessment of psychologist, Mr Tsironis, to whom the plaintiff was referred by her solicitors on 13 September 2012, was also tendered. His report depicts an individual who has pushed herself to work and shown great determination and persistence in all areas of her life, despite the restrictions imposed by ongoing pain and disability. However, his conclusion that the plaintiff was totally and permanently unfit for all of her pre-injury duties is not supported by the other medical evidence.
86 The evidence indicates that the plaintiff has a residual capacity for work. The plaintiff has satisfied me that for the foreseeable future, by reason of injury-related pain and disability, in exercising any residual physical capacity for work, she probably is restricted to part-time employment. As mentioned, subject to the restrictions imposed, this probably should not exceed two non-consecutive days per week, with an employer who offers flexible working conditions and is tolerant of periods off work due to likely intermittent exacerbations of her lower back condition. In this regard, I have preferred the evidence of the treating doctors who have had the benefit of working closely with the plaintiff over many years, particularly during the two periods she attempted to return to work.
The plaintiff's without injury earnings and assessment of her loss of earning capacity
87 In his final submissions the plaintiff's senior counsel did not rely on the reports of forensic accountant, Mr Allan and Human Resources consultant, Ms Meilak which discuss the calculation of the plaintiff's without injury earnings in the six-year statutory period. [76]
[76] TN 96
88 It was submitted on the plaintiff’s behalf that her without injury earnings, that is the gross income from personal exertion that most fairly reflected her earning capacity had the injury not occurred, was a minimum of, $3,236 per week.[77] This figure was based on her pre-injury average weekly earnings as reported by the employer.[78] The employer report further indicated that, pre-injury, the plaintiff worked on average 40.45 ordinary hours per week and she was paid at the rate of $80 per hour. Annualised the rate of earning indicated a gross figure of more than $168,000.
[77] TN 96
[78] PCB 193
89 As mentioned the defendant argued that the plaintiff had not discharged the onus carried to establish her without injury earnings under section 134AB(38)(f) of the Act.[79]
[79] TN 90
90 It goes without saying that the task of identifying the without injury earnings figure is not straightforward.[80] Section 134AB(38)(f)(i) and (ii) relevantly provide that a worker's loss of earning capacity is measured by comparing –
[80] See Barwon Spinners at [23] and Hayhill v Hodge [2006] VSCA 194 [5]
(i) the worker's gross income from personal exertion (expressed as an annual rate which the worker is –
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment –
as at that date, whichever is the greater, and –
(ii) the gross income (expressed as 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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;...
91 In the Second Reading Speech, among other things, the Minister explained that in the three year period prior to injury the Court may have regard to the vagaries of the worker's pre-injury employment history and the impact of the worker's social, health and other factors on the capacity to work in that period. Whereas, in the three years after injury, the earnings and/or capacity for earnings but for the injury allow consideration of the probable increases or decreases in earnings that may have occurred or the achievement of other employment opportunities within that time had the injury not occurred.[81]
[81] Accident Compensation (Common Law and Benefits) Bill, Hon. Monica Gould (Minister assisting the Minister for WorkCover) Legislative Council 23 May 2000
92 As the Court of Appeal also explained in the Barwon Spinners case the provision requires the Court: “to go well beyond the actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out 'as most fairly reflects the workers earning capacity'.”[82]
[82]Barwon Spinners at [23]
93 As to the before injury enquiry, this requires consideration of the gross income the plaintiff earned and was capable of earning from personal exertion during the period of three years before the injury, that is between November 2003 and the injury on 28 November 2006.
94 The defendant tendered copies of the plaintiff's tax returns for the years 2004 to 2010 inclusive. Under cross-examination, without citing or specifically recalling the content of these documents, the plaintiff generally accepted counsel's indication of her gross income as disclosed in each financial year. For instance, she accepted that for the years ending 30 June 2004, 30 June 2005 and 30 June 2006 her returns disclosed gross income of $89,866, $85,438 and $23,040 respectively.
95 It was suggested to the plaintiff that, having regard to her claimed level of earnings (presumably in 2006 at the rate of $80 per hour), she had not worked a full year in each of these years. This proposition appeared to be based on the unsubstantiated assumption that the plaintiff was earning in earlier employment at the same rate as she was paid by the defendant in a full-time role as Financial Controller of Melbourne Health.
96 As I understood the plaintiff's evidence, she was a full-time employee of Deloitte Touche Tohmatsu for about five years between 1998 and 2003. As mentioned, before the plaintiff left this employment she was working as an Audit Client Manager, not as Financial Controller or Chief Financial Officer.
97 The financial year ending 30 June 2003 was probably the year in which the plaintiff commenced employment with ITA as Chief Financial Officer. The profile document suggests that the plaintiff was appointed Chief Financial Officer in March 2003 and Acting CEO in September 2004.[83] No doubt, as the plaintiff posited, a hiatus between finishing her position with Deloittes could have contributed to a reduction in the gross income earned but this is unlikely to have impacted in the financial year ending 30 June 2004.[84]
[83] Exhibit D4
[84] TN 44
98 Under cross-examination, the plaintiff steadfastly asserted that she had been engaged in full-time employment during the pre-injury period and when she moved to ITA her salary increased. For instance, according to the plaintiff when she left ITA she was being paid at the rate of $140,000 per annum plus a $20,000 performance bonus and, in the year before she had been paid at the rate of $120,000 per annum plus a $20,000 performance bonus.[85] I expect, her promotion to Acting CEO could explain a jump in her salary between 2003 and 2005.
[85] TN 44-45
99 The plaintiff could not explain how the amounts shown in the tax returns were achieved, other than to indicate that, having left ITA probably in March (2005), she had received a redundancy payment which was not taxable and she had travelled for some period prior to commencing employment with the defendant from May 2006. She also mentioned a three month period working overseas when employed by Deloittes, although it was not clear how this would have impacted, if at all, on her reported gross income for the financial year ending 2004.
100 When allowance was made for the increased rate at which the plaintiff was paid by the defendant as well as for her position as Financial Controller and, notwithstanding the gross income reported in the tax returns, I had no difficulty accepting the accuracy of the plaintiff's oral evidence regarding her pre-injury earnings and employment activity. It is likely that in the three years before the injury the plaintiff had, as claimed, exercised her earning capacity in full-time employment, albeit with breaks which, no doubt, reflected her transition from one position to another, as well as a lengthy period of travel.
101 Moreover, I have accepted that, with increments to her salary, by the date of injury, with her qualifications and experience, the plaintiff was capable of commanding a gross income in full-time employment (that is 40 hours plus per week) at the rate of $80 or more per hour. The indication given in interview with the defendant’s recruitment consultant in April 2009 that the plaintiff had salary expectations of $150,000 plus in full-time permanent employment as a financial professional, supports this conclusion.
102 As to the after injury enquiry, this required consideration of the gross income the plaintiff would have earned and would have been capable of earning from personal exertion in the three years after the injury, namely the period between the date of injury in November 2006 and November 2009.
103 I was told that in the financial years ending 2007 and possibly into 2008 the plaintiff’s Returns reflected WorkCover payments before and after her lower back surgery.
104 However, the return to work with the employer between June 2008 and June 2009 spanned the financial year ending 30 June 2009. In this year the plaintiff's tax return disclosed gross income of $75,136. Obviously, the financial year ending 30 June 2010 also requires consideration because the three-year period ran until November 2009, some months after the plaintiff's employment with the defendant ended. By that stage, she had discovered her pregnancy.
105 The defendant tendered an affidavit sworn by the defendant's Employer Relations Specialist, Ms Kaczmarek on 15 August 2013. In paragraphs 10 and 11 of her affidavit Ms Kaczmarek deposed that the defendant currently has three contractors in Victoria working as finance managers and paid at a rate of between $49.74 and $70 per hour. She further deposed that since December 2006 the average duration of contracts for financial controllers or finance managers worked by the defendant’s contractors in Victoria was about 197 days with rates negotiated between $30 per hour and $91.75 per hour.
106 As indicated at hearing, I did not find this evidence particularly helpful. Firstly, if any true comparison was to be made it would be necessary to know the qualifications and experience of the individuals contracted, particularly those working as financial controllers. Secondly, in this case the plaintiff's evidence was that, pre-injury, she had been offered and declined a permanent full-time position with Melbourne Health because the plaintiff anticipated looking for something else. I infer this was probably another full-time position. Thirdly, as mentioned, when interviewed by the defendant’s recruitment consultant in April 2009 the plaintiff's salary expectations were $150,000 plus per annum.
107 As mentioned, the plaintiff’s senior counsel did not specifically rely on the forensic accountant’s report. This expert nonetheless posited that the plaintiff’s rate of earning in the three years after injury was probably more than $4,000 gross per week, if employer superannuation contributions and probable increments in earnings were also considered. It may very well be that in 2013, had she not been injured, the plaintiff's experience and qualifications would have justified an increase in her earnings to the top end of the rates mentioned by Ms Kaczmarek, namely a salary much closer to $200,000 gross per annum.
108 Based on the evidence summarised, I was satisfied that, in the three years before the injury, the plaintiff had the capacity and would have continued to exercise her earning capacity in full-time employment, had it not been for the intervention of the injury.
109 Without revisiting all of the matters already discussed, I think it clear from earlier observations made, I have accepted as likely that the plaintiff would have earned and have been capable of earning in full-time employment as a financial professional at the same rate or higher than $3236 gross per week had the injury not occurred.
110 No doubt, the plaintiff's pregnancy during the latter part of 2009 is a factor that also required consideration. However, it is not the case that women engaged in employment invariably cease work or reduce their working hours particularly during the first six months of pregnancy. Accordingly, I have proceeded on the basis that it is unlikely pregnancy would have reduced the plaintiff's capacity to have earned from personal exertion in the latter part of 2009, had the injury not occurred.
111 The plaintiff has satisfied me that the figure which most fairly reflects her earning capacity without injury should be calculated at the rate of no less than $3,236 gross per week and when annualised this represents a gross income of about $168,000. Based on this figure the plaintiff was required to establish a permanent loss of earning capacity productive of financial loss of 40%, namely $67,200 gross or more per annum.
112 The legislation requires the Court to consider the possibility of employment following the injury, with due regard to the various factors on which the amended definition of 'suitable employment' in section 5 of the Act elaborates. These factors include the nature of the plaintiff’s incapacity and pre-injury employment, her age, education skills and work experience, her place of residence, any return to work plan and any occupational rehabilitation services that are or have been provided to her.
113 The concern is whether, having regard to impairment of the plaintiff's lower back she has a physical capacity for work which, if exercised, would result in her exceeding the statutory threshold of 60% of gross income earned from personal exertion.
114 As we now know, for the period between 9 October 2012 and March 2013 the plaintiff was paid by an accountancy firm at the rate of $700 gross per week (excluding GST) for between 15 and 20 billable hours worked each week. Extrapolated over 52 weeks this rate could indicate, as was submitted by the defendant, that any permanent loss of earning capacity was not likely to be productive of a financial loss of 40% or more.
115 In my view, to extrapolate the plaintiff's gross earnings for the period between October 2012 and March 2013 over a five-day working week or 52 week period, as advocated by the defendant, would be unfair. The evidence indicates that the plaintiff struggled during the most recent attempt to return to and maintain employment. Accordingly, allowance must be made for the guarded prognosis, the plaintiff's treating doctors' concerns about her capacity to sustain even modified and restricted duties for two days per week and for her likely unreliability in the workplace for the foreseeable future.
116 The plaintiff also carries the onus of establishing that, after appropriate rehabilitation or retraining, injury-related impairment of her lower back permanently restricts employment options. The determination of this issue requires consideration of the reasonableness of the plaintiff's attempts, if any, to participate in rehabilitation or retraining and she must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
117 Ultimately, the plaintiff was required to satisfy me, as she has, that further training or study was unlikely to result in her earning more than 60% of her pre-injury earnings as determined in accordance with the Act.
118 Unlike many workers who seek leave, the plaintiff is already highly qualified, with experience in office and sedentary employment. She now has what is colloquially called a 'light work' back, which restricts her to part-time employment that also offers considerable flexibility in the workplace.
119 The plaintiff has persisted with rehabilitation efforts over many years and, as recently as 2012, she attempted to return to alternative employment for which she was clearly qualified by reason of her education and work experience and, where she had been allowed a considerable amount of flexibility, including an opportunity to perform some of her work from home.
120 Moreover, the plaintiff has conceded that she has the capacity to undertake further study. In this regard, the plaintiff deposed that she had commenced studying photography at the Photography Studies College in Southbank one night a week in the hope of finding some part-time work as a photographer in due course. However, the plaintiff said that she struggled even with this limited amount of study.[86]
[86] PCB 22
121 While there was evidence that the plaintiff had been active in pursuing employment before and since her pregnancies, there was no evidence of retraining other than the plaintiff's evidence that she had spent time trying to develop her skills to more effectively use the Internet. The defendant submitted, however, that the plaintiff had unreasonably failed to retrain or expand her qualifications to extend her opportunities in as a financial professional by completing the Company Directors Course to which CoWork had drawn her attention in 2011.
122 As mentioned, due to the nature of the work involved, I was satisfied that additional training or qualifying to work as a company director was unlikely to improve the plaintiff's prospects of gaining suitable alternative employment or, for that matter, result in her earning more than 60% of her pre-injury earnings as determined in accordance with the Act.
123 Accordingly, applying the test under the Act by reason of work-related impairment of her lower back:
· I find that the plaintiff has a loss of earning capacity of 40% or more and that she will, after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more;
· I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff capacity for employment would improve to a level that would take her over the statutory threshold; and
· the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, the loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable.
124 I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect to pain and suffering and pecuniary loss damages for work-related injury to her lower back about 28 November 2006.
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