Brown v Victorian WorkCover Authority
[2021] VCC 690
•4 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04087
| NICOLE BROWN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2021 | |
DATE OF JUDGMENT: | 4 June 2021 | |
CASE MAY BE CITED AS: | Brown v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 690 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Impairment of spine – loss of earning capacity – where multiple injuries
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Rowe v Transport Accident Commission [2017] VSCA 377; Dressing v Porter [2006] VSCA 215; Parrish v Specialized Australia Pty Ltd(Rulings) [2020] VSC 15; Acir v Frosster [2009] VSC 454
Judgment: Leave to bring proceedings granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr M Belmar | Maurice Blackburn Lawyers |
| For the Defendant | Mr A Middleton | Russell Kennedy |
HER HONOUR:
1Between October 2014 and April 2015, Nicole Brown worked for Aerocare Flight Support (“Aerocare”) on the Tiger Air check-in counter. Her role required her to manually handle luggage on to a conveyor belt, often in a rush. She was also required to drag a large weighted bin around the tarmac to set up a series of flags to provide guidance to travellers as they walked along the tarmac.
2Within a short time of commencing work, Mrs Brown says that she began experiencing pain in her back, shoulders and right leg. She saw her general practitioner (“GP”) in relation to this on 13 November 2014. Scans were performed, which revealed a paracentral protrusion at L5-S1 compressing the right S1 nerve root and slightly displacing the left S1 nerve root. She was prescribed painkillers and continued to work.
3In February 2015, she again consulted her GP, this time specifically in relation to left shoulder pain.
4On 23 April 2015, she completed a shift at Aerocare. On 28 April 2015, she consulted her GP because of the pain in her back. She consulted her GP again a couple of days later because she was having to go to the toilet very frequently. Her GP referred her to the Epworth hospital where she was given strong pain relief and another scan was arranged. She was diagnosed with discogenic pain due to a significant prolapse at L5-S1. On 2 May 2015, she underwent spinal surgery performed by orthopaedic surgeon, Mr David de la Harpe.
5On 31 July 2015, Mrs Brown consulted Mr Shane Blackmore in relation to left shoulder pain. She ultimately had surgery on her left shoulder on 24 November 2015.
6On 23 February 2016, she consulted Mr Blackmore again, this time for right shoulder pain. By 28 November 2016, she was reporting to Mr Blackmore that her right shoulder was more painful than her left.
7On 15 July 2016, she commenced seeing Dr Clayton Thomas (a pain specialist who she had previously consulted between 2010 and 2011 about an unrelated wrist injury). She complained of pain in her lower back, shoulders and legs. On 1 December 2017, she reported to Dr Thomas that she was experiencing a sensation of her right leg giving way.
8On 23 December 2017, she says that she was holding a dirt bike for her son as he had fallen off the bike and she was attempting to help him. She says that her right leg gave way and that she must have twisted the throttle on the bike as she fell and lost control of the bike. As a result of this fall, both Mrs Brown’s legs were badly broken and she was taken to the Royal Melbourne Hospital.
9Mrs Brown is now forty-six years old. She says that she continues to live with back, shoulder and leg pain which significantly interferes with her daily life and renders her permanently unable to work. Mrs Brown claims that she has suffered a serious injury with respect to both the pain and suffering[1] and loss of earning capacity[2] consequences of each of the following impairments of body functions:
(a) her lower back;
(b) her left shoulder;
(c) her right shoulder; and
(d) her legs.
[1] Section 325(2)(b)(i) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”)
[2] Section 325(2)(b)(ii) of the WIRCA
10In the course of opening submissions, the defendant conceded a pain and suffering certificate in relation to impairment of Mrs Brown’s left shoulder and back. It was also conceded that the impairments to Mrs Brown’s left shoulder and back arose out of or in the course of Mrs Brown’s employment. However, the defendant:
(a) denies that the impairments of Mrs Brown’s right shoulder or legs were causally linked to her employment in the relevant sense; and
(b) denies that Mrs Brown has suffered a serious injury with respect to loss of earning capacity consequences for any of the impairments relied upon.[3]
[3]By virtue of s335(3) of the WIRCA, Mrs Brown is limited to suing for damages for pain and suffering unless she satisfies the Court that she has a serious injury with respect to loss of earning capacity consequences.
11The critical issue in this case is whether Mrs Brown has suffered a serious impairment of her lower back (spine) with respect to loss of earning capacity consequences. Accordingly, I will address this issue first before considering the remaining impairments relied upon by Mrs Brown.
The statutory test
12There are three elements to establishing serious injury on the basis of loss of earning capacity. In relation to each of these elements, the onus of proof is on Mrs Brown. Mrs Brown must establish that:
(a) as at the date of the hearing,[4] she has a loss of earning capacity of 40 per cent or more measured by comparing:
(i)her gross income from personal exertion which she is currently capable[5] of earning in suitable employment; and
(ii)the:
“gross income (expressed at an annual rate) that [Mrs Brown] 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 injury as most fairly reflects [Mrs Brown’s] earning capacity had the injury not occurred”;[6]
(“the current loss of earning capacity test”)
(b) Mrs Brown will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;[7] (“the permanent loss of earning capacity test”) and
(c) the loss of earning capacity consequences of the impairment of Mrs Brown’s spine, when judged by comparison with other cases in the range of possible impairments or losses of a body function, must be fairly described as being “more than significant or marked”, and as being “at least very considerable”.[8] (“the narrative test”)
[4] Or date of decision, but there is no significant difference.
[5] Or is actually earning, but Mrs Brown is not actually earning income from personal exertion.
[6]Section 325(2)(e)(i) and s325(2)(f) of the WIRCA
[7] Section 325(2)(e)(ii) of the WIRCA
[8] Section 325(2)(c) of the WIRCA
Mrs Brown’s evidence in relation to the impact of her back pain on her income-earning capacity
13Mrs Brown’s evidence is that she experiences pain in her back every day. In her second affidavit of 21 April 2021, she said that she is always aware of the pain when she wakes and spends the day experiencing back pain.
14In oral evidence, Mrs Brown described a constant radiating pain in the base of her spine. She said when she has a flare up she gets a pain shooting through her pelvis that radiates down both her legs. When she has a flare up she takes an instant release Palexia and then has to lie down because it knocks her out. Mrs Brown said she has a flare up like that on average once every two days.
15Mrs Brown said that if she spends too long sitting or standing she experiences pain in her back in the base of her spine. She then needed to change her posture to lessen the pain. She said it would be unbearable pain to sit for three or four hours at a time.
16When asked if she could do a job that required only two hours at a time, she said:
“Not reliably, no, because … the flare-ups … I can’t plan when they’re going to happen … so I couldn’t reliably commit to any … sort of days of work.”[9]
She said that this was specifically as a result of her back.
[9]Transcript (“T”) 30, Lines (“L”) 26-30
17Mrs Brown also says, in her affidavits, that she suffers ongoing shoulder and leg pain. In her affidavits she does not clearly distinguish between the consequences of her back pain, shoulder pain and leg pain. However, it was apparent from her oral evidence that she claimed that her principal problem was back pain.
Medical evidence
18I have read and considered all of the medical reports which were tendered in evidence. I consider the most relevant reports in relation to this issue to be those which:
(a) are recent;
(b) are from treating practitioners who have the benefit of multiple opportunities to assess Mrs Brown;
(c) separately consider Mrs Brown’s capacity to engage in income-earning activity in light of her back injury alone; or
(d) consider that Mrs Brown has a capacity to engage in income-earning activity, notwithstanding her back injury (even if they do not consider her back injury alone).
19Dr Philip Wood provided a report dated 4 February 2021. He is a GP at Sunbury Medical Centre, which has provided treatment to Mrs Brown for the last fifteen years. He said that Mrs Brown:
“… has pain from her back and radiculopathy and also suffers from pain subsequent to her surgeries. I would describe her as having episodes of acute pain which is significant and disabling on a background of significant back pain, radiculopathy to her right leg and knee pain. She is completely disabled.”[10]
[10]Plaintiff’s Amended Court Book (“PACB”) 51
20Dr Wood continued:
“I believe that Nicole has no prospect for any suitable employment now or in the future. She cannot sit for more than 15-20 minutes at a time. She finds it difficult to travel for more than 10 minutes, and she is limited severely with her mobility. This renders her unsuitable for any work duties in the long-term.”[11]
[11]PACB 52
21Dr Clayton Thomas is Mrs Brown’s treating pain specialist. He first saw Mrs Brown on 12 April 2010 in relation to pain in her right wrist, which he treated her for until March 2011. He then saw Mrs Brown again in July 2016, at which time she was reporting that the dominant problem was lower back pain, but she was also reporting aching in both legs and pain in both shoulders. He reviewed her regularly until January 2018 and then there was a break in her treatment with him until 27 January 2021. When he saw her in January 2021, she was complaining of worsening back and left hip and groin pain. He describes Mrs Brown as suffering complex multidimensional ongoing pain, with significant difficulty coming to terms and coping with it. He does not offer an opinion on Mrs Brown’s work capacity.
22Dr Dion Suyapto is a medico-legal occupational and environmental physician retained by the plaintiff. He assessed Mrs Brown once and provided a report dated 1 February 2021 and a supplementary report dated 14 April 2021. In his supplementary report, he considered each of Mrs Brown’s back injury, right shoulder injury and left shoulder injury alone. He concluded that as a result of each of her back injury and right shoulder injury alone, Mrs Brown was totally incapacitated for employment. He concluded that Mrs Brown was fit to undertake part-time work due to her left shoulder when considered alone (on restricted duties).
23Mr Mohammed Awad is a medico-legal neurosurgeon and spinal surgeon retained by the plaintiff. He assessed Mrs Brown once and provided a report dated 29 January 2021. He diagnosed her as suffering from acute L5-S1 disc prolapse requiring urgent surgical intervention, ongoing aggravation of lumbar spondylosis and ongoing bilateral radicular symptoms. Mr Awad expressed the view that:
“In her current state she does not have the capacity for her pre-injury employment, either full time or part time. I do not believe she will have any realistic capacity for any alternative employment, taking into account her age, education, training, skills, work experience as well as the nature and severity of her lumbar spine condition.”[12]
[12]PACB 175
24Dr David Barton is a consultant occupational physician retained by the defendant. He saw Mrs Brown once via telehealth and once in person, and prepared three reports. In his report dated 20 August 2020 (which followed a telehealth assessment), he concluded:
“She certainly has a capacity for suitable employment. She has fairly extensive office, administrative and managerial skills.
…
I see no reason why she can’t complete the duties detailed in the vocational assessment on a full-time and sustained basis.”[13]
[13]Defendant’s Court Book (“DCB”) 157
25In his report dated 30 April 2021 (which followed an in-person assessment), Dr Barton said:
“Objectively there is no clear evidence of any ongoing physical problem. She has no evidence of a radiculopathy but demonstrates a marked limitation of left shoulder and back movements. There were however a number of inconsistencies that I believe point towards a significant functional component to her complaints including the following:
the long history of dramatically described symptoms which is typical of abnormal illness behaviour;
the lack of any clear objective evidence of any particular physical problem that would account for her claimed symptoms and incapacity;
the non-anatomical sensory changes in the lower limbs;
the discrepancy between her limited straight leg raising and postures at other times;
the increase in reported back symptoms with axial loading.”[14]
[14]DCB 164
26Dr Barton also maintained his views previously expressed in relation to her capacity for employment, noting that:
“She is clearly entrenched in the sick role and believes she cannot do anything at all and raises many barriers as to why she can’t possibly return to work. I do not believe that these barriers are clinically or medically justified.”[15]
[15]DCB 165
27In addition to the medical reports, three vocational assessment reports were relied upon:
(a) a Konekt 130 Week Vocational Assessment Report dated 14 February 2017 tendered by the defendant, which identifies six possible occupations for Mrs Brown;
(b) a Recovre Vocational Assessment Report dated 5 March 2021 tendered by the defendant, which identifies eleven possible occupations for Mrs Brown; and
(c) a Vocational Assessment Report by Mr Paul Hartley dated 12 April 2021 tendered by Mrs Brown, which considers the employment options proposed by the Recovre Vocational Assessment Report and concludes that:
“…given the multiple barriers that she now faces to being able to attain, sustain and fulfil the inherent requirements of new work in a consistent and reliable manner to the level required by industry based on each separate injury and very much more so when combined, it is my opinion that on the balance of probabilities, [Mrs] Brown’s residual capacities are not realistically marketable within the current labour market, and that her workforce disenfranchisement is likely to continue into the foreseeable future … .”[16]
[16]PACB 120
Consideration
28In cases involving multiple possible injuries, it is necessary to identify the impairment consequences of each injury in order to determine whether the consequences of that injury (considered alone) meet the requirements for a serious injury.[17] In determining whether the impairment of Mrs Brown’s spine meets the requirements for a serious injury with respect to loss of earning capacity, I must therefore consider the consequences of the impairment of her spine, taken alone, on Mrs Brown’s capacity to earn income.
[17]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at [31]-[35]; Rowe v Transport Accident Commission [2017] VSCA 377 at paragraph [82]; Dressing v Porter [2006] VSCA 215 at paragraph [47]; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
29Mrs Brown presented in the witness box as intelligent and articulate. She was able to focus, listen to the question posed and respond in a considered and careful manner. From time to time she changed her posture and towards the end of her evidence (after approximately one hour of sitting) she was displaying some physical signs of pain. I accept that her pain was genuine, and she was doing her best to be truthful in her descriptions of her pain, although her experience of pain was clearly heightened when her attention was drawn to it.
30Her evidence is that she has unpredictable flare ups of severe pain in her lower back approximately every second day and that those flare ups require her to take Palexia, a strong opiate painkiller which “knocks her out”. I accept this evidence, which is corroborated by the report of her treating GP, Dr Wood, which describes her as experiencing “distressing amounts of pain”.
31Although some of the other medical experts raise the possibility of a pain syndrome,[18] Dr Barton is the only medical expert who suggests that her back pain lacks an organic basis. His views conflict with:
(a) the opinion of her treating GP, Dr Wood;
(b) the opinion of her treating orthopaedic surgeon, Mr de la Harpe (who diagnosed degenerative back pain, although his report is dated 8 November 2017, so does not take account of the last three and a half years);
(c) the opinion of Mr Mohammed Awad, a medico-legal neurosurgeon retained by Mrs Brown, who diagnosed her with ongoing aggravation of lumbar spondylosis; and
(d) my own observation that Mrs Brown appeared genuine in her experience of pain.
[18] For example, Dr Majid Rahgozar, a consultant occupational physician retained by the defendant.
32In Dr Barton’s first report of 20 August 2020, he said that Mrs Brown “certainly” had a capacity for suitable employment and that he could “see no reason” why Mrs Brown could not return to full-time sustained employment. This view was not based on any physical assessment of Mrs Brown, but only a telehealth consultation (in which Mrs Brown described constant central lower back pain which was “horrendous” in the morning) and a review of documents provided to him. Dr Barton’s views seemed to be influenced particularly by his views as to Mrs Brown’s “catastrophising” of her symptoms and the “sequelae of the compensation process”, rather than based on matters strictly within his expertise. Although Dr Barton subsequently confirmed his opinions after a physical examination of Mrs Brown, it is reasonable to treat his opinions with some caution in this context. In any event, I prefer my own assessment and the assessment of Dr Wood as to the genuineness of Mrs Brown’s symptoms; and the opinions of Mr de la Harpe and Mr Awad as to the organic basis of Mrs Brown’s symptoms.
33Given these findings, I accept that Mrs Brown is, by reason of her back condition alone, permanently incapable of performing any paid employment on a regular or consistent basis. On good days she may be capable of performing a couple of hours of work at her own pace. However, on bad days, when her back pain flares up, she must take disabling pain medication. These bad days are unpredictable but happen on average every second day. This is not consistent with any form of regular and consistent employment, part time or otherwise.
34In coming to this conclusion, I consider Mrs Brown’s back symptoms alone. Back pain (and the need for urgent surgery as a result) was the original cause for her ceasing employment. Although Mrs Brown reported some left shoulder pain to her general practitioner on 2 February 2015, it was not significant enough to cause her to cease employment or increase her medications. Mrs Brown’s right shoulder pain does not seem to have been significant enough to even report to a doctor until February 2016. It was apparent from Mrs Brown’s oral evidence, and also the symptoms she described to the medical practitioners,[19] that back pain was and remains the principal ongoing reason for her incapacity.
[19]See the reports of Dr Clayton Thomas dated 13 May 2021 at PACB 182 (“the dominant problem was lower back pain”), PACB 183 (“She was more concerned about her back pain”); PACB 184 (“Her back pain is the dominant problem”); Dr Philip Wood dated 4 February 2021 at PACB 51; Mr Paul Hartley dated 12 April 2021 at PACB 102 (particularly the chart); Dr Peter Boys dated 17 August 2016 at DCB 52; Dr Majid Rahgozar dated 12 June 2017 at DCB 105.
35I have not placed significant weight on the views of Dr Suyapto, the occupational and environmental medicine physician called by Mrs Brown, in his second report. I accept the submissions of the defendant that that report fails to adequately provide a statement of reasoning[20] that explains Dr Suyapto’s conclusion that Mrs Brown is totally incapacitated for employment by reason of her back alone. I also did not find reports which predated 2020 of a great deal of assistance in relation to income-earning capacity, as they were not assessing Mrs Brown’s current condition.
[20] Parrish v Specialized Australia Pty Ltd(Rulings) [2020] VSC 15 at paragraphs [24]-[25]
36I did find assistance in the detailed and careful analysis of Mr Paul Hartley, who prepared a vocational assessment report for Mrs Brown. However, while I accept that, by reason of her back pain, Mrs Brown is not capable of any regular and consistent employment, I do not accept that Mrs Brown is totally unable to perform any income-earning activity. It is concerning that Mrs Brown is unwilling to attempt any form of employment and apparently has resigned herself to permanent incapacity at the age of forty-six. Putting her injury to one side, Mrs Brown clearly has the literacy, numeracy and computer skills, as well as the experience, to work in an administrative or clerical, or phone-based role. Such work may be available on a casual and flexible basis, even from home. An example is provided in the Recovre Vocational Assessment Report of 5 March 2021 of a casual bookkeeper, a role which can be largely home based. Mrs Brown may need to retrain for such a role by completing a Certificate IV in Accounting and Bookkeeping, however such courses can be completed online.[21] The statutory test expressly requires reasonable retraining to be undertaken.[22] Her refusal to even attempt employment since September 2015 increases the difficulty of assessing the extent of her incapacity.
[21] Report of Dr Paul Hartley dated 12 April 2021
[22] Section 325(2)(g) of the WIRCA
37In order to assess whether Mrs Brown satisfies the current loss of earning capacity test, I must first determine her without injury earning capacity applying the statutory formula in s325(2)(f) of the WIRCA. That formula requires me to use the gross income Mrs Brown:
(a) was earning;
(b) was capable of earning;
(c) would have earned; or
(d) would have been capable of earning,
during a part of the period within 3 years before and 3 years after the injury.[23]
[23] See Acir v Frosster [2009] VSC 454 at paragraph [165]
38The defendant submitted that I should use a figure of $14,966, which was the amount Mrs Brown earned for the financial year ended June 2013. In this period, Mrs Brown was running a business which ultimately closed in September 2014. I do not accept that this rate most fairly represents Mrs Brown’s without injury earning capacity.
39Senior counsel for Mrs Brown submitted that I should use the rate Mrs Brown earned in the financial year ended 30 June 2011, which was $46,862. This was more than three years prior to the injury, however he submitted that even though it was outside the relevant period I could use this amount as evidence of what Mrs Brown was capable of earning within the relevant period.
40I accept that evidence of income actually earned outside the relevant period may provide a basis for the drawing of an inference as to income-earning capacity within the relevant period. In the absence of other evidence as to Mrs Brown’s income-earning capacity within the relevant period, I would have accepted this provided better evidence of her income-earning capacity within the relevant period than the income she actually earned whilst running the business which closed.
41However, in the present case there is more direct evidence of Mrs Brown’s income-earning capacity within the relevant period (other than from the business), in the form of the rate she was actually earning while working for Aerocare between October 2014 and April 2015. An Aerocare payroll history was tendered without objection for the period from 6 October 2014 to 31 December 2015. For the pay periods between 12 October 2014 and 26 April 2015, a period of approximately six months, Mrs Brown earned $16,359.57. These pay periods coincide almost precisely with the periods Mrs Brown says that she was employed by Aerocare. Multiplying this by two, in order to express this as an annual rate, gives a without injury earning capacity of approximately $32,000. Although by this stage Mrs Brown was working whilst injured, there is no evidence that this impacted upon her income-earning capacity in that time. The rate which most fairly represents Mrs Brown’s without injury earning capacity is $32,000.
42To satisfy the current loss of earning capacity test, Mrs Brown must show that her current income earning capacity is no more than 60 per cent of $32,000, which is $19,200. Although I have not accepted Mrs Brown is unable to perform any income-earning activity, in view of my acceptance of her evidence in relation to her experience of ongoing back pain and incapacitating flare ups occurring on average once every two days, I accept that it is unlikely that she could work more than three two-hour shifts per week, and then on a casual and irregular basis. Even assuming that she was able to earn a rate of $50 per hour for this work (the rate referred to in the Recovre report for a bookkeeper), she would earn no more than $14,400 per year.[24] Accordingly, Mrs Brown has satisfied the current loss of earning capacity test.
[24]Six hours per week for 48 weeks per year, gives 288 hours per year. This figure multiplied by $50/hour gives $14,400 per year.
43Given the long duration of Mrs Brown’s symptoms and the limited suggestions in the reports of the medical experts for future treatments, I accept that Mrs Brown’s symptoms are likely to continue for the foreseeable future. Accordingly, I also accept that Mrs Brown satisfies the narrative test and the permanent loss of earning capacity test.
Other impairments
44In relation to the other impairments relied upon:
(a) I am not satisfied that the right shoulder arose out of or in the course of employment. The question of whether the right shoulder injury resulted from or was materially contributed to by the left shoulder injury was considered by an independent medical panel on 12 February 2017. They concluded that it was not. I found the reasons of the Medical Panel on this issue compelling and consider that their views on this issue, as the views of an independent panel which included two orthopaedic surgeons, should be preferred to the views of the other medical experts. I am also not satisfied that the right shoulder satisfies the requirements of a serious injury with respect to loss of earning capacity consequences. In the absence of an explanation of the grounds for his opinion, I do not accept the opinion of Dr Suyapto that Mrs Brown is totally incapacitated based solely on her right shoulder. I also do not accept the similar opinion expressed by medico-legal orthopaedic upper limb surgeon, Mr Ash Chehata. His report does not contain any consideration of the fact that Mrs Brown is suited to an administrative or clerical role, nor the specific impact a shoulder injury would have on performance of the requirements of such a role;
(b) with the exception of the radicular or sciatic leg pain suffered by Mrs Brown as part of the flare up of her spinal impairment, I am not satisfied that the leg pain she suffers arose out of or in the course of employment. The incident in which her legs were broken must have been highly traumatic and would have happened within a very short space of time. A quite detailed contemporaneous description of this incident is contained in the notes of the Royal Melbourne Hospital (recorded the same day) and the Transport Accident Commission claim form (completed the following day, albeit on the basis of a description of events provided by Mrs Brown’s husband). Neither refers to Mrs Brown’s right leg collapsing. I prefer this evidence to Mrs Brown’s subsequent recollections. I am not satisfied that it is more probable than not that the accident was caused due to her right leg collapsing, nor that her right leg collapsing was due to her spinal pain. In any event, in light of my rejection of the opinion of Dr Suyapto in his second report, I am not satisfied that the leg pain amounts to a serious injury with respect to loss of earning capacity consequences, particularly in light of Mrs Brown’s suitability to perform administrative and clerical roles; and
(c) I am not satisfied that the left shoulder is a serious injury with respect to loss of earning capacity consequences. It is apparent from Mrs Brown’s reports of her symptoms to the various medical experts that her left shoulder pain is the least troublesome of her symptoms. I am not satisfied that this injury causes a loss of earning capacity consequence which is “at least very considerable” and “more than significant or marked”.
Conclusion
45I have found that the loss of earning capacity consequence of the impairment of Mrs Brown’s back meets the requirements of a serious injury. I will grant leave to bring proceedings for damages for economic loss and hear from the parties on the question of costs.
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