Bruce v Victorian WorkCover Authority
[2021] VCC 433
•22 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03253
| THONGLUAN LOOKJAN BRUCE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2021 (via Zoom) | |
DATE OF JUDGMENT: | 22 April 2021 | |
CASE MAY BE CITED AS: | Bruce v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 433 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Lower back injury – employed by labour hire company – placed with two host employers – whether the lower back injury resulted from work in the course of employment encompassing both host employers – whether the lower back injury resulted from a discrete incident with one host employer – causation – qualified concession that the pain and suffering consequences are “serious” – whether the qualification was satisfied – whether the loss of earning capacity consequences are “serious”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Woolworths Ltd v Warfe [2013] VSCA 22
Judgment: The plaintiff has leave to bring a proceeding for both pain and suffering and loss of earning capacity consequences.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms S C Bailey | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms F A L Ryan | Hall & Wilcox |
HIS HONOUR:
Introduction
1The plaintiff commenced employment with Programmed Integrated Workforce (“the employer”) sometime in January 2018. The employer is a labour hire organisation. It placed the plaintiff with PFD Food Services (“PFD”) from 27 March to 3 May 2018, and later, with Lite n’ Easy (“Lite”) on 16 May 2018, with 17 May 2018 being her last day of employment.
2The plaintiff submitted that she suffered an injury to her lower back, with pain and suffering consequences and loss of earning capacity consequences which meet the statutory test of seriousness.
3Mr J Mighell QC appeared with Ms S C Bailey of counsel for the plaintiff. Ms F A L Ryan appeared for the defendant.
The issues
4The plaintiff submitted that the injury to her lower back resulted from the work she performed in the course of her employment with the employer, and that work comprised the manual work she was required to perform with PFD and Lite.
5The defendant submitted that I should conclude that the plaintiff suffered injury, not in the course of her employment with the employer as contended for by the plaintiff, but on 17 May 2018.
6The defendant also submitted that if I was against the defendant on its primary submission, and found that the plaintiff suffered injury to her lower back in the course of her employment, then the defendant conceded that the plaintiff’s pain and suffering consequences met the statutory test. That would then leave the issue of whether the plaintiff’s loss of earning capacity consequences meet the statutory test.
Lite – 17 May 2018
7In the plaintiff’s first affidavit sworn 11 March 2020, she did not describe the individual tasks of work which she performed with PFD and Lite. Rather, she lumped all of those tasks together. It was during cross-examination that she separated what tasks of work she performed with PFD and what tasks of work she performed with Lite.
8The work the plaintiff performed with PFD involved making sandwiches. The plaintiff would butter bread and place a filling into the bread, and I assume would then place the finished product onto a nearby conveyor belt.[1]
[1] Transcript 17-18
9The work the plaintiff performed with Lite involved packing food into containers, and lifting the containers onto trolleys and pushing the trolleys into cool rooms.[2]
[2] Transcript 17-18
10Under cross-examination, the plaintiff was referred to a Worker’s Injury Claim Form (“the Claim Form”) completed and signed by her on 31 May 2018. The plaintiff agreed that she completed the form. In summary, the plaintiff described her “injury/condition” as “Back Pain”. She described the “area of the work site” where she suffered injury as the “Packing area”. When asked for the “date and time” when the injury/condition occurred, she wrote that it occurred on 17 May 2018 at 5.00pm.[3]
[3] Defendant's Court Book (“DCB”) 199-200 and Transcript 20
11Under cross-examination, the plaintiff described the work she was performing on 17 May 2018 as “packing quickly and twisting”. Initially, she said that she could not remember having lifted anything heavy that day, and then she said that she lifted a container packed with food. The food comprised dry food, being oranges and bananas, which the plaintiff said “we put them together and put them in the container”. She agreed that she lifted the container at about 5.00pm on that day. She said that as she lifted the container, “I felt a sudden hurting”.
12Under cross-examination, the plaintiff said that she attended Dr Lyn O’Keefe, general practitioner, at the Valewood Clinic on 31 May 2018. She was referred to the content of the entry in her clinical notes of that day:
“WC
programmed
process- at light and easy
sore back for 2/52 neck and lower back and numbness L thigh when stands too long
-repetatively (sic) lifting … .”[4]
[4] DCB 150
13The plaintiff agreed that the content of the clinical note was accurate. She agreed that the complaint she made of pain in her neck and lower back were related to repetitive lifting, and the repetitive lifting was referrable to Lite and the work she was performing with it on 17 May 2018.[5]
[5] Transcript 23-2
14Under cross-examination, the plaintiff said that she attended Ms Vanessa Tang, physiotherapist, on 7 August 2018. Ms Tang provided a short report dated 7 August 2018.[6] The plaintiff was referred to part of the history recorded by Ms Tang:
“… She reports having pre-existing back pain but has been exacerbated since the incident at work on May 17th, 2018 where (sic) she was lifting a heavy sink.”
[6] Plaintiff's Court Book (“PCB”) 39
15The plaintiff said that she recalled lifting a heavy sink that day. She took it to a point at the premises where it was washed. When the plaintiff was asked whether it was possible that she lifted both a container and a heavy sink that day, she answered “Could be both”. She agreed that it was the lifting that caused her to suffer an aggravation of her lower back pain.[7]
[7] Transcript 22
16Under cross-examination, the plaintiff agreed that the work she performed with Lite was heavier than the work that she performed with PFD.[8] She also agreed that her main complaint with the work she performed with PFD was standing “for too long”.[9]
[8] Transcript 24
[9] Transcript 24
17Under cross-examination, it was put to the plaintiff that she did not suffer any troubling lower back pain while working for PFD. She answered “Yes, I hurt my back, but not a lot so I didn’t go to see doctor”.[10] When she was asked whether “the really bad back pain” occurred as a result of the lifting incident with Lite on 17 May 2018, she said “Yes, it’s getting worse-that period of time”. She also agreed that she did not inform the employer that she had suffered any injury to her lower back until after working for Lite and suffering the injury on 17 May 2018.[11]
[10] Transcript 32
[11] Transcript 32
18In the plaintiff’s first affidavit she referred to seeing a doctor at the Rosstown Medical Clinic on 11 May 2018, after which she switched clinics. She saw Dr Andrew Patrick, general practitioner, who is one of the doctors at the Rosstown Medical Clinic. I was informed by the plaintiff during her opening address that Dr Patrick would not treat her for her work-related injury because he would not take on WorkCover patients. Although, the plaintiff did not give that evidence, the defendant did not cavil with what I was told during the plaintiff’s opening address in that respect. As a result, the plaintiff then saw Dr O’Keefe, and later, Dr George Stabelos, general practitioner, who is also a doctor at the Rosstown Medical Clinic.
19When the plaintiff saw Dr Patrick on 11 May 2018 she told him that she was suffering from lower back pain radiating into her left leg associated with paraesthesia. The clinical note does not associate the onset of the lower back condition with any particular cause. It is noteworthy that at the time when she saw him, she was in between her jobs with PFD and Lite. There is no suggestion that the plaintiff suffered injury in any other circumstances than through her work with both PFD and Lite, so I infer that when she saw Dr Patrick it was for a lower back condition which had developed prior to 11 May 2018 and probably as a result of her work with PFD.
PFD and Lite, or just Lite
20I accept the plaintiff’s evidence that it was both the work she performed with PFD and Lite which contributed to the development of her lower back condition. The chronology which I have endeavoured to summarise above makes that reasonably clear.
21Firstly, I accept the plaintiff’s evidence that she suffered injury to her lower back while she was working with PFD.
22Secondly, it became significant enough after she ceased working for PFD on 3 May 2018 for her to see Dr Patrick on 11 May 2018, who recorded in a clinical note of that date that she had lower back pain radiating into her left leg associated with paraesthesia. They are the very symptoms of the lower back condition for which the plaintiff was treated later on.
23Thirdly, the fact that the Claim Form refers to an event which occurred on 17 May 2018 occurs to me to be part of a transaction of work through the plaintiff’s time at PFD and then with Lite which resulted in more obvious symptoms of a lower back condition which had already been identified by Dr Patrick on 11 May 2018.
24Fourthly, I think to isolate what occurred on 17 May 2018 is an artificial exercise. Whilst I can see why the defendant took the point, there is very little in the point. I do not think the point stands up to the scrutiny which I have undertaken of the whole of the evidence.
25I think I should say a little more about the defendant’s reliance on the clinical notes of Dr O’Keefe and Ms Tang. I think this is an example of a case where care needs to be exercised in relying on clinical notes because they tend to be a selective summary of the attending doctors’ impressions.[12] Whilst clinical notes can sometimes be critically important, they can also give a skewed impression, which I think is the case here. I say skewed, because if the clinical notes of Dr O’Keefe and Ms Tang were taken in isolation, then one might validly ask the question whether in fact the plaintiff suffered any injury while working with PFD. However, that position cannot be sustained for the reasons which I have already referred to.
[12]Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [105], and Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [112]
26To the extent that there is any issue regarding the occurrence of an injury arising out of the plaintiff’s employment with the employer, then I prefer the opinion of Professor Goldschlager, neurosurgeon, that the plaintiff suffered the injury he diagnosed. I am fortified in reaching that conclusion by the opinions of Dr George Stabelos, Dr Andrew Patrick, Mr Hazem Akil, neurosurgeon, Dr Kilner Brasier, occupational physician, and Mr Graeme Doig, orthopaedic surgeon. There is some degree of variation in their opinions, in particular, Mr Doig, relevant to the underlying pathology of the injury, but that is not enough to affect my opinion of what medical evidence I prefer. I do not accept the opinion of Dr David Barton, consultant occupational physician, for reasons set out below.
27The effect of the conclusion I have reached on this issue does not require me to determine whether the pain and suffering consequences meet the statutory test because of the concession made by the defendant.
Treatment
28Dr Stabelos referred the plaintiff to Professor Tony Goldschlager, neurosurgeon. The plaintiff first saw him in September 2018. He inspected an MRI scan taken on 7 August 2018[13] which aided him in making the diagnosis that the plaintiff had suffered a broad-based disc bulge at L5-S1 causing moderate canal stenosis with compression of both S1 nerve roots, worse on the right side. He considered that the appearances on the MRI scan fitted in with the pain complained of by the plaintiff. He referred her to have an epidural injection which was performed on 20 September 2018.[14] On review, the plaintiff informed Professor Goldschlager that the epidural injection gave her temporary relief, and that she was contemplating undergoing surgery.[15]
[13] PCB 163-164
[14] PCB 45
[15] PCB 73
29Professor Goldschlager referred the plaintiff to have a further MRI scan, which was performed on 19 June 2019.[16] On review, the plaintiff informed him that she had ongoing pain in her left leg which he considered to be in the S1 distribution radiating down to her foot which was particularly severe after standing and walking. He considered that the appearances on the MRI scan were of high grade stenosis with mainly bilateral recess stenosis and some disc prolapse anteriorly toward the left side, all of which he considered fitted in with the pain complained of by the plaintiff. He advised her to have surgery.[17]
[16] PCB 165
[17] PCB 79 and 85-87
30Professor Goldschlager made a request of the insurance agent for it to cover the cost of the proposed surgery. That request was refused. He did not perform the surgery. It was performed by Mr Bob Homapur, surgeon, at the Monash Medical Centre, in September 2019. He understood the surgery to have involved compression of the S1 nerve root and from a combined problem caused by facet joint arthropathy and disc protrusion. However, the plaintiff was subsequently reviewed by Professor Goldschlager in September 2020. The plaintiff told him that she “was good” for four to five months postoperatively, but then experienced a recurrence of pain. She described the pain as not being there all of the time. She described lower back pain and left leg pain, which radiated down to the sole of her foot. He referred her to have a further MRI scan to exclude recurrent disc prolapse.
31On review, and with the further MRI scan, Professor Goldschlager considered that there was no significant neural compression. He advised the plaintiff to undergo hydrotherapy and physiotherapy in the hope that she would become more active over the ensuing months. He considered that the plaintiff “may be able to return to work in a graduated fashion”.[18]
[18] PCB 93
32Professor Goldschlager provided a report dated 15 January 2021.[19] He considered that the plaintiff suffered left S1 radiculopathy secondary to an L5-S1 disc prolapse. He noted that she was continuing to suffer from intermittent radicular pain, paraesthesia and lower back pain. When he was asked whether the plaintiff had a realistic capacity for any employment on a permanent reliable and sustainable basis, he said that “It is difficult to know”. He then observed that the plaintiff had been involved in manual work, and that certain activities, and I assume he was referring to manual activities, provoked pain. He concluded that “She may be suitable for modified duties”, but it appears that he was uncertain in the opinion he expressed in this respect because he then suggested that she may benefit from a review by an occupational physician.
[19] PCB 108-110
33Dr Stabelos provided a report dated 31 December 2020.[20] He was also asked the same question asked of Professor Goldschlager regarding the plaintiff’s capacity for work. He provided a fairly long answer which warrants quoting in full:
“Your question here relates to whether your client has a realistic capacity for any employment on a permanent, reliable and sustained basis without the risk of reinjury and/or aggravation.
The worker’s current capacity for pre-injury employment is that, on the basis of her ongoing back and leg symptoms and signs, she is unable to undertake her pre-injury employment. It is possible that the patient may be able to undertake modified or alternative duties in the future. However, she would be restricted in that she would not be able to undertake activities that involve repetitive bending or lifting or twisting. It is also probable that prolonged standing or sitting duties may also aggravate her underlying spinal condition. Unfortunately, due to the degenerative changes associated with her lumbar spine, the patient is at risk of re-injury and/or re-aggravation. Whilst her underlying arthritic and degenerative condition would be primarily responsible for this, the associated work injury and the subsequent surgery required, is likely to be a significant contributing factor to re-injury and/or aggravation of her spine condition.”[21]
[20] PCB 99-103
[21]PCB 102
34Dr Stabelos’ prognosis was guarded. He considered that it was likely that she would be exposed to persistent back and leg pain on an ongoing basis, and that her condition will continue to gradually deteriorate.
35Dr Patrick provided a report dated 21 February 2021.[22] Although, I was told that he would not treat the plaintiff, he was nonetheless asked to provide an opinion relevant to the plaintiff’s capacity to work. He considered that the plaintiff will not be able to return to any employment which involved prolonged standing, lifting and twisting, although, he considered that the plaintiff may be able to return to light work. He added that following the surgery, the plaintiff has not been able to undertake vacuuming, cleaning nor gardening, but would be fit for light duties at home, and I presume that means lighter domestic tasks when compared with vacuuming, cleaning and gardening. He considered that her recreational activities would be limited to sedentary activities. He considered that the plaintiff’s prognosis was dependent upon her motivation to recover from her injury.
[22] PCB 115
36Mr Akil examined the plaintiff in November 2019, and again in January 2021, and provided two medical reports dated 18 November 2019[23] and 7 January 2021.[24] On the second occasion that Mr Akil examined the plaintiff, he noted that the surgery had improved her radicular pain affecting her left leg, but had not significantly improved her lower back pain. He noted that the plaintiff had a limited capacity to sit for 30 minutes to one hour before feeling numbness in her left leg associated with significant discomfort; standing capacity limited to two hours and a significant impact on her ability to drive distances and a significant restriction on her ability to walk.
[23] PCB 124-127
[24] PCB 128-131
37Mr Akil was provided with a Recovre Vocational Report dated 1 June 2020.[25] The author was asked to consider the plaintiff’s transferable skills and what work options could be identified which might comprise suitable employment. The author referred to the vocations of packer, product assembler, retail sales assistant and dispatch packer as coming within the range of those work options. Mr Akil commenced his observations relevant to the plaintiff’s capacity for work by stating that it was “In theory”. He considered that employment which would allow the plaintiff to alternate between sitting and standing would be appropriate, but he did not think that the vocations referred to in the Recovre Vocational Report would allow for that, and might result in the plaintiff not being able to perform those duties reliably. He added that the hours that the plaintiff would be able to work would depend on the type of employment on which she was engaged. He expressed concerns that given her constant pain, that the hours that she would be expected to undertake would result in her not being a reliable employee.
[25] DCB 64-89
38Dr Kilner Brasier, occupational physician, examined the plaintiff on 7 January 2021. He provided a report dated 25 January 2021. He considered that there were a number of restrictions which needed to be placed upon the plaintiff, namely, no lifting weights greater than 7.5 kilograms from waist level, no prolonged bending, no repetitive twisting, no standing for periods greater than two hours, no sitting for periods greater than one hour, and no driving of a motor vehicle for periods longer than one hour. He considered those restrictions were likely to be permanent and persist for the foreseeable future. On the basis of his assessment of the plaintiff, he considered that she did not have a capacity to perform her pre-injury work. In relation to the vocations identified in the Recovre Vocational Report dated 1 June 2020, he considered that the plaintiff did not have a current work capacity for any of those vocations.
39Mr Graeme Doig, orthopaedic surgeon, examined the plaintiff on 12 December 2019 and 7 December 2020. He provided four reports, dated 31 December 2019,[26] 8 July 2020,[27] 21 December 2020[28] and 9 March 2021.[29] On the second occasion he examined the plaintiff, he was provided with the Recovre Vocational Report dated 1 June 2020. He considered that it would be unwise for the plaintiff to return to her pre-injury employment because she would suffer further symptomatic exacerbations of her lower back condition due to the physical demands required of her in performing that work.
[26] DCB 18-24
[27] DCB 15-17
[28] DCB 8-14
[29] DCB 5-7
40In relation to the vocational options which are identified in the Recovre Vocational Report dated 1 June 2020, Mr Doig considered that the restrictions that should be placed upon the plaintiff in any return to work would be lifting of less than 10 kilograms, and restrictions on pushing, pulling, limitations on bending and twisting and the requirements for breaks from prolonged sitting and a limitation on driving. He considered that as long as the vocational options did not exceed these restrictions, then they would be potentially suitable. He added that if the plaintiff had a sympathetic employer with an ergonomic set up, that would be helpful, and I assume that means helpful in her being able to perform the work and sustain work.
41Dr David Barton, occupational physician, examined the plaintiff on 21 May 2020 and 3 December 2020. He provided five reports dated 22 May 2020,[30] 23 June 2020,[31] 1 July 2020,[32] 4 December 2020[33] and 26 February 2021.[34] After examining the plaintiff on 21 May 2020, Dr Barton expressed an opinion which is basically consistent with the other medical opinions I have summarised except that he considered that there was “… certainly no reason why she could not undertake similar process type work”. He qualified that by adding that the plaintiff might struggle with awkward lifting, but noted there would still be many work options where that would not be a factor. He also added that based upon her description of her pre-injury employment, he considered that it may not be possible for her to return to that employment. Subsequently, he was provided with the Recovre Vocational Report dated 1 June 2020. He considered that all of the vocations identified in the report were suitable, and that the plaintiff could work on a full-time and sustained basis.
[30] DCB 39-43
[31] DCB 37-38
[32] DCB 34-36
[33] DCB 28-33
[34] DCB 25-27
42Doctor Barton cast doubt on the plaintiff’s creditworthiness and reliability in a supplementary report dated 1 July 2020, after he re-examined the plaintiff on 3 December 2020 and in the two reports he provided after that re-examination. He undertook his own critical analysis of the chronology of the plaintiff’s employment with PFD and Lite, and a critical analysis of all of the clinical notes and medical reports which I have summarised above, concluding that the plaintiff was neither creditworthy nor reliable. I do not propose to summarise his critique of the plaintiff’s history, the relevant chronology and his analyses of the clinical notes and medical reports, because I simply do not accept that his critique is correct.
43There are two reasons why I do not accept that his critique is correct. Firstly, the defendant was armed with the plaintiff’s history, the relevant chronology, the clinical notes and medical reports. Its only attack on the plaintiff was whether she suffered the lower back injury on 17 May 2018 and not in the course of her employment with the employer through her work with PFD and Lite. Secondly, and I think wisely, the defendant did not submit that Dr Barton’s critique is accurate and overwhelms the evidence which both the plaintiff and the defendant tendered, and which they submitted was the relevant evidence on which I was to make findings on whether the plaintiff suffered the lower back injury in the course of employment with the employer.
44The only aspect of Dr Barton’s evidence which I accept is his diagnosis of the injury referred to in his first report. It is consistent with the preponderance of the medical opinions which I have summarised, but interestingly, he accepted that she had a disc injury causing neurological compromise and an absent left ankle reflex which he considered was consistent with neurological compromise. Apart from that, it is clear that there is a remarkable parting of the ways between Dr Barton on the one hand, and all of the other medical practitioners on the other hand.
The suitable employment
45The defendant referred to the Recovre Vocational Report dated 1 June 2020 in which the author identified a number of forms of employment said to be suitable employment for the plaintiff. It was only the job of packer that the defendant submitted constituted suitable employment.
46Under cross-examination, the plaintiff was referred to the description of the job of packer, and in particular, what the author described as “Task 1 - Capping machine operation”. Under that heading were four dot points describing the relevant work tasks, three of which were put to the plaintiff.[35]
[35] DCB 72
47The first dot point referred to the requirement for the operator to do the following:
“Standing and walking along the machine are required constantly when supervising this machine however these periods are typically limited to intervals in the vicinity of five minutes before resuming seated packing duties.”
48The second dot point referred to the following requirement:
“Lifting of boxes weighing in the vicinity of 5kg is required however these are typically handled by both workers together and it was clearly stated that warehouse staff could lift these boxes into place if required given the low frequency of requirement. Lifting of these boxes arises around once per hour maximum and they are handled between floor height and 900mm.”
49The second dot point referred to the following requirement:
“Wheeled tubs are dragged from the machine to the packing area – distance less than 3m, once per hour on average or less. Force requirements were estimated to be less than 4kg – either worker can perform this task.”
50Under cross-examination, each of the three work tasks were put to the plaintiff adequately enough for her to understand what tasks an operator of the capping machine would be required to perform. At first, the plaintiff agreed that she could perform all of those work tasks except for dragging the wheeled tub, but after being asked to consider it in the context of pushing a shopping trolley around a supermarket, she then agreed that she could perform that work task as well.[36]
[36] Transcript 29-31
51However, I note that the work tasks just referred to were derived from a packing job at work premises at Dandenong South.[37] It was not the only packing job referred to by the author. There was a second packing job derived from a packing job at work premises in Springvale,[38] which was not put to the plaintiff under cross-examination. Some of the work tasks required in the second packing job were put to the plaintiff under re-examination.
[37] Transcript 71
[38] Transcript 75
52Under re-examination, the plaintiff was referred to photographs accompanying the description of the packing job at the work premises in Springvale.[39] In particular, she was referred to what the author described as “Task 2 - Line two”. In a series of dot points within the accompanying description of particular work tasks, the first dot point referred to the need for:
“Dynamic standing is typically required on a constant basis however an elevated office chair is available and can be used for brief periods when packing. In practice, workers would only be able to remain seated for 2-5 minutes before standing to complete palletising duties.”
[39] DCB 75-81
53The next photograph the plaintiff was referred to was of a worker at the work premises in Springvale holding four small boxes which she was placing onto a pallet. That process was described to the plaintiff as “twisting and putting something on a pallet”. The next photograph the plaintiff was referred to was of a worker bending at the waist into a tub to place articles into the tub.
54In answer to these questions, the plaintiff said that she could not perform a work task which required constantly standing during the day. She added that she could probably stand for one hour or so at a time. She said that she could not engage in a work task which required twisting and putting something on a pallet. She said that she could not perform the work task which involved bending and putting something light into a plastic tub.
55It was in the context of the cross-examination and the re-examination relevant to the individual work tasks that the plaintiff was then asked whether she thought that she was able to work with the pain she experiences in her lower back. She gave an emphatic answer “Can’t do that”.[40]
[40] Transcript 33
56My analysis of the whole of the evidence, and the conclusion I have reached based on that evidence, is that the plaintiff is totally incapacitated for all employment, and for the job of packer at the work premises at Dandenong South submitted by the defendant as suitable employment. My reasoning in reaching that conclusion is as follows.
57My synthesis of the medical evidence is that the medical practitioners who were asked to consider whether the plaintiff was fit for employment did so cautiously, and qualifying their opinions whether the plaintiff was indeed fit to return to some light employment. Professor Goldschlager, Dr Patrick, Mr Akil, and Dr Doig expressed cautious and qualified opinions relevant to whether the plaintiff retained a capacity for suitable employment. The manner in which they each expressed their opinions has left me with the impression that in reality they doubt that the plaintiff has retained a capacity for suitable employment.
58Dr Brasier, an expert occupational physician, appears to me to have weighed up all of the relevant considerations in determining whether the plaintiff has retained a capacity for suitable employment. He said, in no uncertain terms, that he did not believe the plaintiff had retained such a capacity.
59I have left Dr Stabelos for last because I think he has articulated the problems which work against the proposition that the plaintiff has retained a capacity for suitable employment. I think he did so very persuasively captured in the passage I have quoted above.
60It is all very well for medical practitioners to identify all of the obstacles to a return to suitable employment, and then to simply say that the plaintiff may have a capacity to return to suitable employment without any more. I am far more persuaded by the opinions of Dr Brasier and Dr Stabelos for the reasons which I think I have adverted to already.
61Additionally, there are aspects of the plaintiff’s evidence which, when added to the reasoning of the medical practitioners, demonstrates that the plaintiff’s prospects of returning to suitable employment are very poor indeed. She has a level of pain in her lower back and leg which are troubling. She has very significant limitations on her capacity to move freely, and more particularly, standing, bending, twisting and turning. She will be unreliable in an ordinary work set up of working five days per week, and needing a sympathetic employer who will accommodate her in the way in which the workplace is set up. She will require the need to lie down to relieve her lower back pain. The need for that presently occurs every two or three days, requiring the plaintiff to lie down for about an hour.[41] Of course, that is in the plaintiff’s present circumstances, and likely to occur somewhat more often when she is exposed to the rigours of daily work, five days per week. Furthermore, there is a real risk of further deterioration in the plaintiff’s lower back condition which will increase the extent to which she is currently impaired relevant to her limited theoretically retained capacity for any suitable employment.
[41] Transcript 33
62The job as a packer submitted by the defendant, on a surface analysis, appears to represent suitable employment, but when I synthesise all of the evidence and consider all of the obstacles in the way of the plaintiff successfully returning to suitable employment, I consider that they are overwhelmingly in favour of the conclusion that she has no capacity to return to what is proposed as suitable employment.
Orders
63I will grant the plaintiff leave to bring a proceeding both for pain and suffering and loss of earning capacity.
- - -
2
0