Buis v Woolworths Limited
[2017] VCC 900
•4 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-05805
| SANDRA BUIS | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 May 2017 | |
DATE OF JUDGMENT: | 4 July 2017 | |
CASE MAY BE CITED AS: | Buis v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 900 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – certificate for pain and suffering conceded by the defendant – loss of earning capacity – suitable employment – disentangling the consequences of the physical injury to the back and the psychological or functional overlay from the physical injury to the neck – plaintiff’s retained level of work capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted to the plaintiff to bring proceedings to recover common law damages in respect of pain and suffering as a result of the injury to her neck in the course of her employment with the defendant on 5 December 2009. Application by the plaintiff for a serious injury certificate in respect of loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr M Cvjeticanin | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr D McWilliams | Hall & Wilcox |
HIS HONOUR:
Introduction
1 The proceeding was commenced by way of Originating Motion dated 23 December 2016 where the plaintiff sought leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings for common law damages as a result of an injury suffered by her during the course of her employment with the defendant on 5 December 2009. The plaintiff was seeking leave in respect of injury and impairment to her cervical spine.
2 At the commencement of the proceeding, Mr McWilliams, on behalf of the defendant, conceded that the plaintiff was entitled to a serious injury certificate in respect of pain and suffering damages as a result of the injury to her cervical spine. The hearing continued on the basis that the plaintiff was seeking leave to bring proceedings in respect of loss of earning capacity as a result of the injury to her cervical spine.
The legal framework
3 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. That paragraph reads:
“‘serious injury’ means—
(a) permanent serious impairment or loss of a body function; or … .”
4 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999;[1]
(b)the injury and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c)the “consequences” to the plaintiff of the neck injury in relation to “pecuniary loss” must be serious – that is, “when judged by comparison with other cases in the range of possible impairments as the case can be fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[1]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors Podolak [2005] 14 VR 622 at paragraph [11]
[2]See Barwon Spinners (op cit) at paragraph [33]
[3]See s134AB(38)(b) and ss(c) of the Act
5 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s1324AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[4]
[4]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60] – [64]; Acir v Frosster Pty Ltd [2009] VSC 454
6 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[5] to establish that:
(a)as at the date of hearing, she has a loss of earning capacity of 40 per cent or more, as set out in paragraph (f) of s134AB(38) of the Act;[6]
(b)after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[7]
[5]See s134AB(19)(b) and s(38)(e) of the Act
[6]See s134AB(38)(e)(i) of the Act
[7]See s134AB(38)(e)(ii) of the Act
7 In determining the application, the Court must:
(a)not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken or counted for the purposes of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[8]
(b)make the assessment of “serious injury” at the time the application is heard;[9]
(c)give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[10]
[8]See s134AB(38)(h) of the Act
[9]See s134AB(38)(i) of the Act
[10]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23] – [36]
8 In the course of this hearing, the plaintiff gave evidence and was cross-examined. The plaintiff also relied upon exhibit A, which was the pages tendered from the Plaintiff’s Court Book (“PCB”), being pages 1-17, page 23, pages 25-27, pages 29-65, pages 68-112, pages 117-203 and page 206.
9 The defendant tendered the following documents:
·Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1 to 54 and pages 101-131;
·Exhibit 2, DVD surveillance film for the days of 5 November 2016 and 16 December 2016.
10 Mr McWilliams identified the following issues as being in dispute in this proceeding:
(a) The plaintiff was required to disentangle the consequences of injury to the plaintiff’s back and her psychiatric injury from the consequences of the injury to her neck;
(b) The defendant’s contention is that the injury is a psychiatric injury based on functional overlay;
(c) The plaintiff was embellishing the symptoms and her credit is in dispute; and
(d) The plaintiff has a capacity to work and such work does not satisfy the 40 per cent loss of earning capacity test.
11 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
12 I have read the exhibited material and taken into account the evidence of the witnesses in this case in making this decision.
Loss of earning capacity
13 In this proceeding, the only issue to be decided is the loss of earning capacity suffered by the plaintiff as a result of the injury to her cervical spine. The relevant factors to take into account when assessing the loss of earning capacity are as follows:
14 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a)at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
15 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
16 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
17 The plaintiff’s loss of earning capacity is to take into account the definition of “suitable employment” and the effect of suitable employment referred to in s134AB(38)(g). The definition of “suitable employment” looks at the capacity of the plaintiff to work. The suitable employment definition looks at the age of the plaintiff, the skills of the plaintiff and after rehabilitation, if the plaintiff is sufficiently physically able to do a particular job, then that is suitable employment. The test is not whether or not the employment is currently available.[11]
[11] Richter v Driscoll [2016] VSCA 142
The Plaintiff’s background
18 The plaintiff was born in 1963 and is now aged fifty-three. The plaintiff was educated to Year 11 at Burwood Heights.[12] In 1982, the plaintiff married. The plaintiff had her only child, a daughter, in 1984.
[12]PCB 2
19 The plaintiff has had a consistent and good work record. She commenced her work as a junior clerk in receptionist-type employment. She then worked in sales work at Coles and Kmart Super K. The plaintiff became a delicatessen manager at Woolworths. In 2008, the plaintiff was a manager at Macro Whole Foods. She then commenced working at the Thomas Duck store, an upmarket version of Woolworths supermarkets.
20 After her injury, the plaintiff worked full time on restricted duties. She ceased work when her place of employment was changed from the Glen Waverley store to the Armadale store in March 2016.
Injury with the Defendant
21 The plaintiff set out the circumstances of her injury at her employment with the defendant in her affidavit dated 22 July 2016. The plaintiff described the injury in the following terms:
“On 5 December 2009 it was my turn to be in charge of the store. Woolworths had directed that a pallet load of water had to be put out onto the shop floor, displayed and priced by the time the store opened on Saturday morning. I asked my store manager for help because I had to have the store set up to be open by 8:00am on Saturday. My manager, Nikki Atherston, told me there was no-one to help me. I was on my own.
The water came in 1.5 litre plastic bottles in packs of six wrapped in clear plastic. The pallet was stacked up to above my waist. I took the packs of water off the pallet one by one onto a flat bed 4-wheel trolley. The trolley could hold about a couple of dozen packs at a time. I pushed the loaded trolley from the storeroom through the store to the front where the display was meant to be. It was about 5:30am when I started. I had to make a stack of these packs of water bottles for the display. The stack was on the floor. I was always conscious that I had to work quickly to get the display built before the shop was opened, as well as everything else I needed to do that morning.
I worked quickly and continuously moved packs of water from the pallet onto the trolley and then from the trolley onto the display I was making. After about three or four trolley loads, I noticed that the repeated reaching, lifting and handling of the packs of water was causing some discomfort in the back of my neck. At first I thought nothing of it. Then as I kept working I thought I just might have had a bit of a strained muscle. I kept working and I finished the display. I opened the store on time and I worked to the end of my shift. My neck was still sore. At home, I noticed more neck pain, pins and needles in my right arm and pain in my right arm. I was not rostered the next day but went to work during the week as required. The pain in my neck and right arm continued.”[13]
[13]PCB 4, paragraphs [8], [9] and [10]
Medical treatment
22 The plaintiff attended her general practitioner, Dr Sally Cockburn, on 10 December 2009.[14] The plaintiff was referred for a CT scan by Dr Cockburn. The CT scan was performed on 14 December 2009. The conclusion of that report was:
“Left paracentral protrusions at C4-5 and C5-6 with the more prominent being at the C5-C6 level. Correlation with symptomology is indicated and consideration to further evaluation by MRI is recommended.”[15]
[14]PCB 5
[15]PCB 124
23 The plaintiff saw Professor David Wallace, a neurosurgeon, on 30 December 2009. Professor Wallace referred the plaintiff to Professor Peter Teddy, a neurosurgeon. The plaintiff saw Professor Teddy on 8 February 2010.[16]
[16]PCB 5 and 6
24 The plaintiff was admitted at the Epworth Hospital due to the pain in her neck on 15 April 2010. She attended the Emergency Department on that day.[17]
[17]PCB 6
25 On 20 May 2010, Professor Teddy performed surgery on the plaintiff’s neck.
26 The plaintiff returned to the care of Professor David Wallace and had surgery to her neck on 1 April 2011.[18]
[18]PCB 6, paragraph [16]
27 The plaintiff then had an inpatient pain management course under the hand of Dr Stephen de Graaff, rehabilitation medicine specialist. The pain management course took a period of twelve weeks from 30 August 2011.[19]
[19]PCB 6
28 In 2013, the plaintiff had nerve root block procedures to her cervical spine performed by Dr Richard Sullivan, pain medicine specialist.[20]
[20]PCB 7
29 On 27 July 2015, the plaintiff, whilst at work, injured her back. The pain was to her lower back. The plaintiff made a claim for the injury to her lower back and received WorkCover payments.[21]
[21]PCB 8
30 After that injury, the plaintiff returned to full-time work on restricted duties.
31 On 31 January 2016, the Glen Waverley store of the defendant was closed. The plaintiff’s work was then moved to the Armadale store. She was on the same restrictions but working full time.[22] The plaintiff worked for a short time at the Armadale store until March of 2016. She was then made redundant on 27 June 2016. I note that the plaintiff stated in her affidavit dated 22 July 2016 that she was “sacked”. This is in fact not correct.
[22]PCB 8, paragraph [23]
32 The plaintiff’s current position is that she lives with her mother in Whittlesea. The plaintiff is still under the care of her general practitioner, Dr Cockburn. Every three months she attends upon Dr Richard Sullivan. The plaintiff takes Targin and Nurofen medication to assist with her pain levels. She also takes Endep.
33 The plaintiff also currently sees a clinical psychologist, Dr Olivia Twigg, and has in the past seen a psychiatrist, Dr Kate McQuillan.[23]
[23]PCB 13
Medical opinions
The Plaintiff’s doctors
Dr Sally Cockburn, general practitioner
34 The plaintiff tendered no less than thirteen medical reports from Dr Sally Cockburn from the date of 7 January 2010 through to 1 May 2017. The relevant medical reports in this matter are the medical reports of Dr Cockburn dated 12 October 2015 and 1 May 2017.
35 In her report dated 12 October 2015, Dr Cockburn stated:
“I doubt this patient will ever return to her pre-injury status and her future work capacity is likely restricted to the current capacity unless she is retrained.”[24]
[24]PCB 26
36 Dr Cockburn continued in that report to describe her referrals of the plaintiff to pain specialists and a psychologist. She also stated that the plaintiff had been prescribed antidepressant anxiolytic mediation.
37 In her later report dated 1 May 2017, Dr Cockburn gave the following opinion:
“She is unable to work in her usual occupation. A trial of return to work failed as the workplace could not find appropriate work. Her trial involved long distance travel which in itself exacerbated her pain before she even got to work.”[25]
[25]PCB 27
38 Dr Cockburn then went on to state that the plaintiff was a person who loved to work and had been a respected team member. Dr Cockburn stated that the plaintiff now feels she is useless, and a culmination of the chronic pain and sense of abandonment by the system has led her to serious mental health issues. Dr Cockburn described the plaintiff as a robust woman, a loyal employee and a compliant patient, but that the injury had taken its toll. In her opinion, she doubted that the plaintiff will ever recover to be fit to work again.
39 In this opinion, Dr Cockburn has failed to differentiate between the psychiatric issues for the plaintiff and her neck injury. The opinion also ignores the fact that the plaintiff had returned to work at the Glen Waverley store of the defendant for a considerable period of time post injury on restricted duties. It was only when the plaintiff moved to the Armadale store with the increased travel time that the plaintiff then ceased employment. At the time of Dr Cockburn’s report on 12 October 2015, the plaintiff’s back injury was still the relevant compensable injury. Subsequent to that reporting, the plaintiff had returned to work at the Glen Waverley store first and then, subsequently, the Armadale store. I do not accept that Dr Cockburn has sufficiently identified the neck injury to the plaintiff as the reason or cause of the plaintiff’s inability to be fit for work.
Professor Peter Teddy, neurosurgeon
40 Professor Teddy prepared no less than nine medical reports from 8 February 2010 to 29 May 2014 in respect of this application. Professor Teddy’s report dated 29 May 2014 is the most relevant in respect of this application. In that report, he stated the plaintiff’s work capacity as follows:
“As detailed in the last clinic letter of Dr Sullivan (March 2014) it would appear that Mrs Buis is continuing to work near to full time at her previous post. I think it likely that she will remain symptomatic in terms of her current symptoms to some degree for the foreseeable future. It is not easy to predict to what degree these would interfere with her future work capacity but likely that they would do so, at least, on an intermittent basis.”[26]
[26]PCB 43
41 In respect of her neck injury, the plaintiff did continue to work, essentially on a full-time basis on restricted duties, right through until March of 2016. The only interruption to her work capacity at that time was the back injury in July of 2015. Professor Teddy’s report is now some three years out of date. Professor Teddy’s opinion does not amount to support for the plaintiff’s application in this proceeding.
Dr Richard Sullivan, pain medicine specialist
42 Dr Sullivan has prepared a total of eleven reports that were tendered in this application. The first report was dated 1 May 2013 and the final report was dated 18 October 2016. The most time relevant reports from Dr Sullivan are the reports of 17 February 2016, 17 March 2016 and 11 May 2016.
43 In his report dated 17 February 2016, Dr Sullivan was concerned predominantly about the psychological and psychiatric condition of the plaintiff. He saw the psychological injury as the most urgent issue for the plaintiff at that time.[27] It is important to note that the plaintiff saw Dr Sullivan on 17 February 2016, shortly before she ceased her employment. Whilst Dr Sullivan’s speciality is related to the treatment of pain and was requesting a trial of neuro stimulation for the plaintiff, he was mostly concerned about her psychiatric state at that time.
[27]PCB 55
44 The plaintiff was seen by Dr Sullivan on 17 March 2016. In his report of that date, Dr Sullivan stated that he was still concerned about the medication and treatment of the plaintiff’s psychiatric and psychological condition. He then went on to say that the plaintiff had ongoing problematic lower back pain. He noted that the plaintiff was taking the medications of Targin, up to two daily, Temazepam, Nurofen and Panadol. Dr Sullivan’s reporting as at March of 2016 related to the pain in the plaintiff’s low back. The low back is not the body function that is the subject of this application. The plaintiff ceased work shortly after this consultation with Dr Sullivan.[28]
[28]PCB 57
45 In his last report dated 11 May 2016, Dr Sullivan noted that the plaintiff’s mental health had taken a significant turn for the worse.[29] He noted that the plaintiff was suffering from a significant Major Depressive Disorder and a Generalised Anxiety State which was the reason for her not being able to continue her work. In that report dated 11 May 2016, Dr Sullivan noted that the plaintiff was then complaining of low back pain.
[29]PCB 58
46 A plain reading of Dr Sullivan’s report dated 11 May 2016 is that the overwhelming problem in terms of the plaintiff’s ability to continue with her employment was her psychiatric condition.[30]
[30]PCB 58
Dr Stephen de Graaff, rehabilitation medicine specialist
47 Dr de Graaff prepared four reports between the dates of 18 July 2011 and 31 January 2013. On his examination of the plaintiff on 31 January 2013 and consulting the MRI results of 25 January 2013, Dr de Graaff noted a significant compromise of the exiting right C7 nerve. His opinion at that time was that the plaintiff should be seen by a neurosurgeon. I note in his report that he was to review the plaintiff in two months’ time; that is, in March of 2013.[31] There was no further report or more recent report from Dr de Graaff. I do not rely upon Dr de Graaff’s medical opinions expressed in these reports as they are now outdated.
[31]PCB 73
Epworth Rehabilitation Centre, Camberwell
48 There were four reports from the Epworth Rehabilitation Centre at Camberwell dated 29 July 2011 through to 1 December 2012. At the time of the final report dated 1 December 2012, the plaintiff was not working. At that stage, the plaintiff was offered suitable employment for modified duties which were to commence in November 2011.
49 In terms of the physical assessment of the plaintiff at that time, the opinion was that with a progressive return to work, the plaintiff would be able to engage in a graduated return to work program.[32]
[32]PCB 93
50 In the summary section of the report, the plaintiff’s psychological and psychiatric condition appears to be the most significant issue at that time.
51 The plaintiff had returned to work with the defendant at the Glen Waverley store and subsequently, at the Armadale store. The fact that the plaintiff was able to perform full-time restricted duties employment until March of 2016 makes the reporting from the Epworth Rehabilitation Centre irrelevant for the purposes of this application.
Professor David Wallace, neurosurgeon
52 Professor Wallace prepared thirteen reports in respect of this application. They are dated between 4 January 2010 and 5 December 2011. The last of those reports is some five-and-a-half years old.
53 Professor Wallace’s latest report is prior to the treatments given by Dr Richard Sullivan of nerve blocks to the C7 area in May of 2013 and November 2013. It is also prior to the low-back injury suffered by the plaintiff on 27 July 2015. Professor Wallace does not refer to any psychological or psychiatric complaints made by the plaintiff back in 2011. Professor Wallace’s reports are dated and they do not assist the Court in determining this application for loss of earning capacity of the plaintiff at this time.
Dr Katherine McQuillan, psychiatrist
54 Dr McQuillan prepared a report dated 13 April 2017 for the purposes of this application. In that report, Dr McQuillan stated that the plaintiff’s mood was significantly depressed and anxious.[33] She noted that the plaintiff:
“… had become isolative and socially withdrawn, finding it difficult to concentrate (for example, no longer able to read novels), is anhedonic although maintains some interest in watching tv and crocheting. She has had periods of suicidal ideation but denied intention and spoke of several positive plans for the future. Her daughter and grandson were stated as protective factors.”[34]
[33]PCB 117
[34]PCB 118
55 Relevantly, for the purposes of this application, Dr McQuillan gave the following opinion about the plaintiff’s capacity for employment:
“Currently, from a purely psychiatric perspective, I do not believe that Ms Buis is able to work. Her mood is pervasively depressed, she struggles with poor concentration and memory, as well as fatiguing easily. Her capacity is also obviously affected by her ongoing physical condition and this is best outlined by her pain specialist, Dr Sullivan or general practitioner, Dr Sally Cockburn.”[35]
[35]PCB 119
56 Clearly, Dr McQuillan, the treating psychiatrist, states that the reason for the plaintiff’s inability to work relates to her psychiatric and psychological condition. That is not the subject of this application.
Dr Olivia Twigg, clinical psychologist
57 Dr Twigg prepared a report dated 13 April 2017. Dr Twigg diagnosed the plaintiff as suffering from the following condition:
“My diagnosis is that Sandra has anxiety-mood comorbidity, experiencing Major Depressive Disorder (with severe impairment) and Generalised Anxiety Disorder. There are features of Panic Disorder. Sandra’s mood disturbance is directly related to her employment (i.e. the workplace injury and the ongoing experience of persistent pain since this injury).”[36]
[36]PCB 122
58 Dr Twigg went on to give an opinion in relation to the impact of the psychological injuries to the plaintiff and her capacity for employment. Dr Twigg stated:
“It is difficult to separate the impact of her physical and psychological injuries on capacity for employment and her treating medical practitioners (Dr Richard Sullivan and Dr Sally Cockburn) are best placed to comment on the impact of her pain on the capacity to work. I do believe that the subsequent depressive and anxiety symptomology have significantly reduced her capacity for employment. Severe sleep disturbance continues to impact her capacity for employment, as Sandra struggles to initiate sleep and also describes how pain wakes her multiple times each night. She has reduced concentration and focus, poor memory, and loss of energy. All these factors negatively impact on her capacity for employment.”[37]
[37]PCB 123
59 Dr Twigg has been unable to distinguish and differentiate between the psychological and psychiatric injuries effect on the plaintiff’s capacity for employment. She has been unable to distinguish the psychological factors from the physical impact of pain from the plaintiff’s neck injury.
Mr David Brownbill, neurosurgeon
60 Dr Brownbill examined the plaintiff for medico-legal purposes. He prepared two reports, dated 7 April 2016 and 28 March 2017. In his first report dated 7 April 2016, Mr Brownbill noted that the plaintiff complained of neck pain, right shoulder pain, right arm pins and needles, low-back pain and right leg pain. He noted that the low-back pain was present at all times, with fluctuations. He noted the plaintiff’s right leg pain was at the front of the thigh and the back of the calf after she had been driving[38].
[38]PCB 143
61 In particular, in relation to questions and his opinion in respect of the cervical spine, Mr Brownbill stated as follows:
“On the information provided there has been a marked impact from her cervical spine injury on her capacity for employment.
…
I consider she should avoid heavy lifting, forced cervical spine mobility or holding her neck in a fixed position. This would include avoidance of heavy repetitive arm movements or working with her arms above shoulder height.”[39]
[39]PCB 146
62 In his report dated 28 March 2017, Mr Brownbill noted the same areas of complaint by the plaintiff. He did not have a history of the psychiatric or psychological condition referred to by Dr McQuillan. He recommended that the plaintiff should be reviewed for pain management purposes.[40]
[40]PCB 150
63 Finally, in his report, Mr Brownbill gave the following opinion about the plaintiff’s capacity for employment:
“On the history provided I consider that on probability her described ongoing symptoms of pain with activity exacerbation would prevent her from performing employment for which she is suited in an ongoing or reliable fashion.”[41]
[41]PCB 151
Dr Joseph Slesenger, specialist occupational physician
64 Dr Slesenger prepared two reports, dated 18 April 2017 and 27 April 2017. In his first report dated 18 April 2017, Dr Slesenger did an extensive examination and report in respect of the plaintiff. He noted the plaintiff had ongoing moderate to severe pain in her neck, radiating to her right shoulder and upper arm, wrist and hand. He also noted that the plaintiff had become depressed and anxious and that her mood was low, her concentration was poor and her memory was poor.[42]
[42]PCB 157
65 Dr Slesenger took a history from the plaintiff in relation to when she last worked at the Armadale store, in particular, he noted that the office was on the first floor and the air conditioning was poor. He also noted that the plaintiff’s travel time from home to work each day was one to two hours.[43]
[43]PCB 159
66 Dr Slesenger made the comment that clinical examination of the plaintiff demonstrated non-organic features that he did not regard as significant. He also noted that the plaintiff had been filmed. His comment in relation to the surveillance footage was as follows:
“The surveillance footage is non-contemporaneous with the assessment with myself, though I do note that the footage shows a capacity greater than that which was demonstrated and described at evaluation and may demonstrate a change in symptoms or function in the interval between the surveillance footage and the assessment by myself.”[44]
[44]PCB 164
67 It is to be noted that the assessment by Dr Slesenger was performed on 16 March 2017 and the footage was filmed in December 2016.
68 In Dr Slesenger’s opinion, the plaintiff was able to perform sixteen hours of work with restrictions. The restrictions were as follows:
“● no push, pull, carry or lift over 5 kilograms
● no repetitive bending or twisting
● no sustained fixed neck postures
● no repetitive neck movements”[45]
[45]PCB 166
69 Dr Slesenger noted that the plaintiff was on medication and the side effects would make it unlikely that her return to work would be consistent and reliable.
70 Dr Slesenger, in his first report, having been shown the alternative roles of employment open to the plaintiff, stated that the plaintiff was able to perform the occupations of a receptionist, order clerk, retail sales assistant, enquiry clerk and a rental sales person.[46]
[46]PCB 167
71 Finally, Dr Slesenger was asked to comment on a report of Dr David Barton, occupational medicine physician, dated 25 October 2016. Dr Slesenger stated, in respect of Dr Barton’s report as follows:
“I have reviewed the report of Dr David Barton dated 25 October 2016. I note the history presented to Dr Barton is broadly similar to that which was disclosed to myself. Dr Barton noted the number of inconsistencies, in particular non-organic features including broad tenderness, non-organic distribution in weakness, positive response to axial loading and truncal rotation.
With regard to Dr Barton’s opinion, I noted some non-organic features on evaluation; however, I was of the opinion that these were limited and were not significant.
As noted above, the surveillance footage is not contemporaneous with the evaluation with myself and whilst there is some degree of inconsistency between the evaluation and the footage, the relevance of this is uncertain.”[47]
[47]PCB 168
72 Dr Slesenger was asked to review and prepare a supplementary report. He prepared a report dated 27 April 2017. In his final report, he confirmed that the plaintiff would be able to perform the tasks of order clerk, retail sales assistant, rental sales person and stock clerk.[48] Dr Slesenger confirmed his opinion about the alternative duties the plaintiff would be able to perform which he had expressed in his earlier report. Dr Slesenger was unable to give an opinion about the psychological impairment of the plaintiff and its effect on the plaintiff’s ability to work.[49]
[48]PCB 172
[49]PCB 174
Dr Brendan Hayman, psychiatrist
73 Dr Hayman prepared three reports for the purposes of medico-legal reporting. The reports are dated 23 March 2017, 21 April 2017 and 3 May 2017. Dr Hayman diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood consequent to her physical injuries and their sequelae.[50]
[50]PCB 182
74 In his final report, Dr Hayman reports in respect of the plaintiff’s capacity for employment as follows:
“As detailed previously her primary incapacity for work relates to her experience of pain. This relates to her physical issues. Her psychological states impacts in part. This relates to the impaired concentration, emotional lability and anergia etc. However, if considering this alone, this would not, of its own accord, preclude a capacity for pre-injury employment.”[51]
[51]PCB 189
75 Dr Hayman’s opinion is that whilst the plaintiff suffers from psychological and psychiatric issues, these do not amount to a reason why the plaintiff cannot return to her pre-injury employment. This opinion is difficult to accept when the plaintiff ceased her employment in March of 2016, predominantly for the psychological and psychiatric issues she was suffering at that time.
Mandy Morgan, human resources consultant, Flexi Personnel Pty Ltd
76 Ms Morgan prepared a report dated 19 April 2017. The report was an employment assessment for the purposes of this application. Ms Morgan’s opinion was set out as follows:
“From meeting with Sandra and taking her medical reports into consideration, in my opinion as a recruiter, the injury to her neck, constant pain and restrictions on an individual basis alone would impede her ability to efficiently and productively perform alternative workplace duties into the foreseeable future but even more so when coupled with her fatigue, memory loss and reduced levels of concentration and possible negative side effects of his (sic) medication.”[52]
[52]PCB 202
77 Ms Morgan does not support the opinions of Dr Slesenger or Dr Barton in respect of the various forms of employment that they thought were suitable for the plaintiff. I prefer the opinion of occupational physicians on the capacity of the plaintiff to engage in suitable employment.
The Defendant’s medical opinions
Dr Stephen Stern, psychiatrist
78 Dr Stephen Stern prepared a report dated 7 January 2016. He stated that the plaintiff had developed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of her chronic pain.[53] He noted that the plaintiff had also suffered constant low-back pain which affected her psychiatric state.
[53]DCB 13
Dr Tony Kostos, rheumatologist
79 Dr Kostos prepared two reports, dated 22 March 2016 and 29 December 2016 for medico-legal purposes. In his first report dated 22 March 2016, Dr Kostos was of the opinion that the plaintiff presented with a Chronic Pain Syndrome. He noted that the plaintiff had widespread pain with evidence of central sensitisation and it is quite clear that there is not going to be a single nociceptive cause for pain.[54] Dr Kostos noted that the plaintiff had diffuse tenderness to skin touch along her entire cervical, thoracic and lumbar spines and adjacent paravertebral areas, the right greater than the left. He noted, on examination, the plaintiff’s neck movements were markedly restricted with pain in all directions.[55] In his opinion, the ongoing treatment for the plaintiff should be a gentle water-based exercise program.[56]
[54]DCB 20
[55]PCB 20
[56]DCB 23
80 In his final report dated 29 December 2016, Dr Kostos had been given the surveillance video film of the plaintiff enclose with report of 8 November 2016. Relevantly, Dr Kostos noted as follows:
“The movements and activities demonstrated in the surveillance DVD are not consistent with her presentation to me nor my findings on examination.
…
I note that she was quite free in her neck and lower back movements which were not associated with any pain.
I note that she was able to elevate her right arm to 90 degrees without any obvious pain.
She was also able to hold a baby for considerable periods of time using one arm or both arms without any apparent pain.”[57]
[57]DCB 24 and 25
81 Dr Kostos’ opinion is not sympathetic to the plaintiff’s application in this case.
Dr David Barton, occupational medicine physician
82 Dr Barton prepared three reports in respect to this application. They are two reports dated 25 October 2016 and one dated 16 December 2016. The one-page report of Dr Barton in respect of the plaintiff dated 25 October 2016 was directed to whether it was appropriate for the plaintiff to be referred to a pain management program.[58]
[58]DCB 32
83 In his substantial report dated 25 October 2016, Dr Barton noted that the plaintiff was strongly symptom and disability focussed. He noted that the plaintiff tended to move in a slow and careful manner.[59] He noted that in the course of his assessment, there were a number of findings that did not fit with a straightforward physical problem and suggested a degree of overlay was also playing a part. He noted the following matters:
[59]DCB 28
“● the fact that the apparently involved right arm is of greater muscle bulk than the left;
● the increase in reported symptoms with axial loading;
● the non-anatomical sensory changes;
● the reduction in muscle power/throughout the right arm which does not fit with any muscular or neurological problem;
● the widespread areas of exquisite tenderness.”[60]
[60]DCB 29
84 Dr Barton diagnosed the plaintiff as suffering from persistent dysfunction following surgical treatment of an apparent neck injury with her problem being complicated by a degree of illness behaviour.[61]
[61]DCB 30
85 Dr Barton noted that the plaintiff was doing lighter duties prior to being made redundant. He was of the opinion that the plaintiff had a capacity to return to lighter duties.[62]
[62]DCB 30
86 Dr Barton was subsequently shown surveillance film of the plaintiff taken on 8 November 2016. Dr Barton noted as follows:
“When I saw the worker I was not convinced that she was anywhere near as disabled as she portrayed. There were a number of features identified and detailed that pointed toward a significant degree of functional overlay. She indicated that she could drive a car for up to one hour and at home did relatively little in the way of household chores.”[63]
[63]DCB 33
87 Dr Barton noted, after seeing the surveillance film, as follows:
“As discussed above, I believe the way she moved in a free and easy manner is inconsistent with the way she presented during the examination. She indicated that she did very little and tended to move in a slow and careful manner.”[64]
[64]DCB 34
88 In summary, Dr Barton’s opinion is that the plaintiff can return to light duties on a full-time basis.
Mr Michael Shannon, orthopaedic surgeon
89 Mr Shannon prepared two reports for medico-legal purposes, dated 15 February 2016 and 19 December 2016. Mr Shannon diagnosed the plaintiff as suffering from a cervical disc prolapse with radiculopathy treated surgically initially by anterior cervical fusion and subsequent foraminotomy. The plaintiff described ongoing neuropathic pain.[65] Mr Shannon noted that the prognosis for the plaintiff’s neuropathic pain is uncertain, although as mentioned, it is encouraging that she has been able to work full time for two years and substantially reduced her dose of medication following a pain management program.[66]
[65]DCB 41
[66]DCB 41
90 Mr Shannon noted that the plaintiff’s physical capacity for employment is extremely limited because of her persistent upper limb pain, but the plaintiff was able to work full time on her present duties.
91 In his report dated 9 December 2016, Mr Shannon had had the opportunity to view the surveillance film of the plaintiff reported on 8 November 2016. After seeing the film, Mr Shannon noted the following:
“The DVD demonstrates her to quite active in driving a motor vehicle, in lifting a small child out of the back seat of the four wheel drive vehicle, pushing a pram and pushing a supermarket trolley, reaching to shelves and in general she does not demonstrate significant restriction of activity.
The range of movement of the cervical spine is significantly better than I recorded to formal examination, but similar to what I have observed during my examination and Impairment Assessment.”[67]
[67]DCB 44
Dr Daniel Lewis, rheumatologist
92 Dr Lewis prepared a report for medico-legal purposes dated 14 February 2013. Dr Lewis diagnosed the plaintiff as suffering from persisting cervical dysfunction and pain without radiculopathy as a consequence of her cervical disc injury which had been treated surgically on two occasions.[68]
[68]DCB 51
93 In terms of the plaintiff’s work capacity as at 2013, Dr Lewis’ opinion was that her work capacity was in line with the current return to work plan and she continued to be capable of doing her current work.[69] At that time, the plaintiff was on restricted duties.
[69]DCB 52
94 As Dr Lewis’ opinion is some three years old, it is not of great assistance in the determination of this proceeding.
The credit of the Plaintiff
95 The defendant relied upon the histories given by the plaintiff to medical practitioners to support the proposition that the plaintiff exaggerated her symptoms. The defendant also relied upon the DVD video surveillance films shown to the plaintiff during the course of this hearing. The surveillance films were dated 5 November 2016 and 16 December 2016. The surveillance film of 5 November 2016 was referred to by the doctors as the film attached to the reports dated 8 November 2016.
96 The film of 5 November 2016 shows the plaintiff, together with her daughter and grandchild, at a shopping centre. The film shows the plaintiff taking the grandchild from the backseat of the car and placing the grandchild in the pusher, pushing the pusher and also, on occasion, carrying the grandchild. The film does not show any restriction by the plaintiff in performing those activities. The film covered a period from approximately 11.30am to 5.00pm. The plaintiff stated that she had a standing date with her daughter on Saturdays.
97 The Court of Appeal, in the case of Church v Echuca Regional Health,[70] stated that courts need to be careful when drawing conclusions against a plaintiff on the basis of video surveillance film over a relatively short period. I find that the plaintiff may have exaggerated her symptoms and disabilities to various medical practitioners, as some of them had noted themselves, and in particular, in light of the capacities shown in the surveillance film. Nevertheless, I do not say that the plaintiff was deliberately trying to mislead medical practitioners or the Court in this case. Indeed, I found the answers of the plaintiff in respect of her desire to return to the workplace honest and compelling.
[70](2008) 20 VR 566
98 I accept that the plaintiff is in pain and, understandably, over the period of time, has become pain focussed. That does not mean that she is not an honest witness.
Analysis
99 Mr Tobin, Senior Counsel on behalf of the plaintiff, submitted that the plaintiff’s employment and her earnings from late 2015 to early 2016 was not “suitable employment”. I reject that submission. The plaintiff had returned to work on restricted duties from the middle of 2012 until she injured her back on 27 July 2015. The restricted duties included computer work, data entry work, invoicing, ticket replacement and maintaining display tables.[71]
[71]Transcript 16-18
100 The plaintiff returned to work after her back injury on restricted duties. Relevantly, the Glen Waverley store shut down on 31 January 2016 and the plaintiff’s place of employment moved to the Armadale store of the defendant.[72] The plaintiff continued to work at the Armadale store on restricted duties on a full-time basis until the middle of March 2016.
[72]PCB 8, paragraph [23]
101 In June of 2016, the plaintiff took a redundancy package.[73] She was not sacked, as she stated in her affidavit of 22 July 2016.[74] The plaintiff has not worked or looked for work or applied for any jobs since June of 2016.[75]
[73]Transcript 25
[74]PCB 9, paragraph [23]
[75]Transcript 39
102 In her evidence, the plaintiff agreed that in a Woolworths store there are duties which include data entry, ticket replacement and attending to displays.[76] The restricted duties at the Thomas Duck stores undertaken by the plaintiff are tasks that are employment opportunities at routine Woolworths stores. I do not accept the work performed by the plaintiff was “a position tailored to meet the peculiar needs of an individual worker who is incapable of performing her normal work”. The work that the plaintiff was required to perform were appropriate duties to comply with her restricted duties status. Those same duties are generally available in the employment market and, in particular, in Woolworths supermarkets. The plaintiff agrees with that fact.[77]
[76]Transcript 19
[77]See Richter v Driscoll (supra) at paragraphs [84]-[85]; Transcript 30
103 I find that the reason the plaintiff ceased work in March 2016 is that the time taken to travel to and from work – that is, Armadale to Whittlesea – became too much for her. The change of workplace from Glen Waverley to Armadale increased her commuting time to and from work from up to one-and-a-quarter hours per day.[78] The plaintiff stated this reason for stopping work at Armadale in her affidavit.[79]
[78]Transcript 20-21
[79]PCB 8, paragraph [23]
104 In her evidence in this application, the plaintiff expanded her reason for ceasing work at Armadale to “not only the commute” but to add the change in duties to data entry only and the state of the workplace.[80]
[80]Transcript 22
105 The plaintiff’s complaint with the workplace at Armadale was that she had to go to the second level via the staircase and that the restrooms were downstairs at the other end of the store. There was no air conditioning on the second level.[81]
[81]Transcript 22
106 The plaintiff’s evidence when cross-examined about the additional matters was as follows:
Q:“You don’t mention in there any change to the duties which you’ve described to His Honour, do you?---
A: No, they weren’t put in here, no.
Q:The reason is that the only difference in the arrangement when you went to Armadale that had an effect on your physical wellbeing was the increase in the commute. That's right, isn't it?---
A: Can you ask that again please?
Q:Sure. The reason you didn’t make mention of anything except the commute and reference to your pain is because the only thing that had changed which led to the increase in pain and discomfort was the commute took a lot longer. That’s right, isn’t it?---
A: It did take a lot longer, yes.
Q: In answer to my question you’d agree with me, wouldn’t you?---
A: It took a lot longer, yes.
Q: That is the reason why it is there was an increase in your pain?---
A: Yes.”[82]
[82]Transcript 24, Lines 1-16
107 I accept the reason the plaintiff left her employment at the Armadale store was because of the additional time it took her to commute to and from her home at Whittlesea. The plaintiff stated the extra travel times increased her pain levels.
108 In cross-examination, the plaintiff agreed she could perform the same work she was doing at the Glen Waverley store up to January 2016.[83] The plaintiff was working doing data entry, ticketing and display tables at the Glen Waverley store. I find that the plaintiff could obtain similar and suitable employment at a supermarket closer to her home in Whittlesea. The plaintiff has not tried to obtain any work since her redundancy payout in June 2016.
[83]Transcript 26, Lines 11-14
109 The plaintiff gave evidence that she was keen to return to work in some capacity.[84] The plaintiff stated she would like to be working.[85]
[84]Transcript 28, Lines 29-30
[85]Transcript 40, Lines 8-10
110 The plaintiff agreed she could perform the duties of a customer service officer.[86] The evidence is that this employment would result in a gross weekly wage of $960.00.[87] The plaintiff agreed she could perform the duties of a stock clerk.[88] The evidence is that this employment would result in a gross weekly wage of $1,035.00.[89]
[86]Transcript 28
[87]DCB 106
[88]Transcript 29
[89]DCB 110
111 The evidence after these concessions were made by the plaintiff was as follows:
Q:“Again, provided those sorts of roles are within your physical restrictions, then you believe one, you'd be able to undertake those tasks. That’s right?---
A: Yes.
Q:And provided it’s within your physical capabilities, you’d be able to undertake those tasks to the same degree you were undertaking the tasks at Glen Waverley?---
A:Yes.”[90]
[90]Transcript 30, L11-16
112 The plaintiff gave evidence that her gross pay per week whilst working at the Glen Waverley store was $925.00.[91]
[91]Transcript 31
113 Mr Tobin submitted that the appropriate figure for “without injury” earning capacity was a gross figure of $1,060.00 per week. The plaintiff therefore has a sixty per cent of “without injury” earning capacity figure of $636.00 gross per week. The plaintiff has to prove a loss of earning results in an income which produces less than $636.00 gross per week.
114 On the evidence, I accept the plaintiff has a capacity to work in suitable employment of her old job; that is, $925.00 gross per week, or as a customer service officer ($960.00 gross per week) or a stock clerk ($1,035.00 gross per week). The plaintiff has failed to prove that her income earning capacity from personal exertion in suitable employment has been reduced by 40 per cent or more as a result of her neck injury.
115 Dr Barton states that the plaintiff has a capacity to perform her light duties on a full-time basis, as she had been doing prior to ceasing employment in March of 2016. Dr Slesenger’s opinion is that the plaintiff’s capacity is sixteen hours a week in light duties. I note however Dr Slesenger’s reservations about the presentation by the plaintiff and that those reservations were confirmed by the DVD surveillance film. I accept the plaintiff has a capacity to return to work on light duties and into the future, will retain the ability to work full time in suitable employment.
Conclusion
116 The plaintiff is granted leave to bring proceedings to recover common law damages in respect of pain and suffering as a result of the injury to her neck in the course of her employment with the defendant on 5 December 2009.
117 The application by the plaintiff for a serious injury certificate in respect of the loss of earning capacity is dismissed.
118 I will hear the parties on costs.
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