Bujdoso v Alton West Footscray Pty Ltd
[2010] VCC 1459
•24 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04984
| ZSUZSANNA BUJDOSO | Plaintiff |
| v | |
| ALTON WEST FOOTSCRAY PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 July and 2 August 2010 |
| DATE OF JUDGMENT: | 24 September 2010 |
| CASE MAY BE CITED AS: | Bujdoso v Alton West Footscray Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1459 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB serious injury – aggravation of pre-existing lumbar disc degeneration.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC with | Maurice Blackburn |
| Mr G Wicks | ||
| For the Defendant | Mr R H Stanley | Lander & Rogers |
| HIS HONOUR: |
1 This is an application which relies on part (a) of the definition of “serious injury” in subsection (37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is “permanent serious impairment or loss of a body function”
2 The body function relied upon is the lumbar spine.
3 The claim by the plaintiff instituted by Originating Motion dated 20 October 2009 seeks leave from the Court pursuant to subsection (16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
4 Mr D Hore-Lacy SC with Mr G Wicks of counsel appeared on behalf of the plaintiff. Mr R H Stanley of counsel appeared on behalf of the defendant.
5 The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave sworn evidence and was cross-examined. The plaintiff’s first affidavit was sworn on 3 June 2009.[1] The plaintiff’s second affidavit was sworn on 27 July 2010.[2]
•
The plaintiff also relied upon an affidavit of her son, Steven Bujdoso, sworn 28 July 2010.[3]
•
The plaintiff’s general practitioner, Dr Matthew Christopher Daly, gave sworn evidence and was cross-examined.
• The plaintiff tendered the following evidence: [1] PCB 10
[2] PCB 19
[3] PCB 23
ƒ the plaintiff’s Court Book (“PCB”), pages 1 to 107 inclusive.
• The defendant tendered the following evidence:
ƒ the defendant’s Court Book (“DCB”), pages 1 to 70 inclusive.
6 The particulars of injury pleaded by the plaintiff as at 11 February 2010 are set out in a Schedule of Particulars of Injury found at PCB 26. The injuries are said to be as follows:
(a) Chronic lumbosacral back strain; and/or (b) Injuries at the L3-4 and L4-5 levels of the lumbar spine; and/or (c) Disc herniation at L4-5 and L5-S1 levels of the lumbar spine; (d) Aggravation and/or exacerbation and/or acceleration of degenerative disc disease of the lumbar spine; (e) Referred symptoms into the left leg including intermittent sensations of numbness in the lower left leg and foot. 7 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
8 The plaintiff is fifty-six years of age. She was born in Hungary on 15 April 1954. She lives alone in a unit in Reservoir. The plaintiff is divorced with one adult child, Steven. She has limited education, having completed eight years of primary schooling in Hungary and having left school at the age of fourteen. In her youth, she worked on farms picking vegetables or fruit during school holidays. After leaving school, she worked in a factory as a sewing machinist for about four years and then moved to Austria, where she performed similar work for about ten years.[4]
[4] The plaintiff’s first affidavit at paragraph 2 – PCB 11
9 The plaintiff married soon after coming to Australia but the marriage was short-lived. In Australia, the plaintiff worked mostly as a machinist, either sewing or knitting. She worked in a knitting mill for about seven-and-a-half years.[5]
[5] The plaintiff’s first affidavit at paragraph 3 – PCB 11
10 The plaintiff commenced work with the defendant in February 2004. She was employed at a meat factory as a packer and a machine operator. The plaintiff describes this as being heavy physical work involving packing meat into boxes and lifting and packing meat products. In her first affidavit, she deposes she was required to repetitively lift boxes of meat weighing 15 to 28 kilograms onto conveyor belts. She was also required to place pigs which had been cut in half into plastic bags.[6]
[6] The plaintiff’s first affidavit at paragraph 5 – PCB 11
11 The plaintiff claims to have suffered injury at her place of employment on 23 November 2005. In her first affidavit, she deposes to having commenced work at about 6.00 am on that day, which was the usual time for commencing her dayshift. At about 9.00 am she slipped on some loose meat, probably fat, which was lying on the floor. The floor was cement and the plaintiff fell and landed heavily on her buttock on her left side and on her left leg. She deposes to having also struck her left knee on a metal bin whilst falling. The plaintiff says she was unable to get up from the fall. She was shocked and her back and leg were hurting. She says she was on the floor for some minutes before a foreman at the defendant’s premises helped her to get up.[7]
[7] The plaintiff’s first affidavit at paragraph 5 – PCB 11-12
12 The plaintiff was taken to a dressing room where ice was placed on her leg and she was then directed back to work. She worked to the end of her shift at 3.30 pm that day. She says that for most of the time during the day she was standing and her low-back pain was worsening.
“… I began to experience a worsening pain in my left leg, travelling to my
foot. I noticed numbness on the top of my left foot and in my big toe.”[8]
[8] The plaintiff’s first affidavit at paragraph 6 – PCB 12
13 The plaintiff deposes that by the following day her condition had not improved so she sought medical advice from Dr Matthew Daly, a general practitioner, from Reservoir. Dr Daly apparently advised the plaintiff to take a few days off work and referred her for x-ray and for physiotherapy. The plaintiff says the physiotherapy assisted her, the pain improved, as did her range of back movement. She tried to return to work on normal duties. However, almost immediately her problems worsened.
“I worked for about a week but I could not cope. In particular, I found that standing was associated with worsening pain in my back. I had to stop work on or about 9 December 2005.”[9]
[9] The plaintiff’s first affidavit at paragraph 7 – PCB 12
14 The plaintiff had a CT scan on or about 12 December 2005.
15 The plaintiff has not returned to work since 9 December 2005. She says she continues to suffer from left leg pain, together with numbness, particularly around the left knee. She deposes to also having low-back pain which is worse with activity and worse with sitting, standing or walking.
“… I am most comfortable when I am just lying flat on my back. I began
to experience sleeping problems.”[10]
[10] The plaintiff’s first affidavit at paragraph 9 – PCB 13
16 The plaintiff was referred by Dr Daly to Mr Wilde, an orthopaedic surgeon, whom she saw on 28 February 2006. According to the plaintiff’s first affidavit, Mr Wilde recommended an MRI scan, and later told her that she needed an injection into her back which would alleviate the problem for two or three days but that the pain would then return. The plaintiff says it was decided between her and Mr Wilde that the injection option was not worth pursuing.[11]
[11] The plaintiff’s first affidavit at paragraph 10 – PCB 13
17 The plaintiff had an MRI scan on or about 9 June 2007 and she then went to see Mr Wilde again. He recommended a rehabilitation program, particularly involving hydrotherapy.[12]
[12] The plaintiff’s first affidavit at paragraph 11 – PCB 13
18 The plaintiff says that for about eight months after her injury she had physiotherapy once or twice a week but this was not helpful. After seeing Mr Wilde, she commenced hydrotherapy twice a week for about two months and then once a week for about a month. She says that the treatment assisted her but she ceased having this treatment because the defendant refused to pay for the sessions and she could not afford to continue.[13]
[13] The plaintiff’s first affidavit at paragraph 12 – PCB 13 and Transcript (“T”) pages 40-41 in cross- examination
19 The plaintiff deposed in her first affidavit that she developed depression. Dr Daly prescribed Stilnox, which she took for about a month or so to assist her with sleeping. He then referred the plaintiff to a psychologist, Mr Bruce Newport, in Thomastown, whom she saw between June and August of 2006. He taught her to relax and to think positively about her situation. The plaintiff’s depressed state improved for some time but in recent months has declined as she is very concerned about her ongoing financial situation, she being unable to work.[14]
[14] The plaintiff’s first affidavit at paragraphs 13-15 – PCB 13-14
20 In her first affidavit, the plaintiff deposes to having a number of pain and suffering consequences as a result of the injury which she says she sustained at work on 23 November 2005. Her affidavit reads as follows:
“16 My back and left leg symptoms have persisted. Currently I suffer
from the following main complaints and limitations:
- I have pain in my low back which is always present and which
is worse with walking and sitting.- The pain radiates to the back of my left leg, and down to my
knees.- I have intermittent numbness in my left lower leg and foot. - I have constant pain in the left knee. -
The low back and leg pain is worse with prolonged walking, standing or sitting. If I walk for more than 15 to 30 minutes or sit or stand for 15 minutes I have worse back pain. This is associated also with a sensation of numbness in my left leg.
- My sleep is interrupted by back pain. - My psychiatric symptoms continue. -
My capacity to perform everyday domestic duties is limited by my problems. I try to do a little housework everyday for short periods rather than complete a task. Vacuuming was too difficult for me and since my injury I have had the floorboards polished so that they are easier to keep clean.
17 I miss my job and the contact with my work mates. As a result of my injury my social life is restricted and the absence from work emphasises my isolation from the community. I am bored. I have always liked to talk and have the company of others around me.
18 I have always loved gardening. In my previous house I had a large vegetable garden. Now I am restricted in the amount of gardening I can perform and I have just a small patch for vegetables. I could not handle a large garden anymore. I grow a few flowers as well. Before my injury I loved to walk and tried to walk an hour a day. I still try to walk up to 30 minutes each morning. However walking for this long causes worse symptoms.”[15]
[15] PCB
21 The issue as to whether or not the plaintiff has a garden and has been deprived of the ability to work it was raised by the defendant in cross- examination. The plaintiff was asked about this by Mr Stanley and quite frankly admitted that she does not have a garden. She admitted that she does not have a garden, because she now lives in a unit. She further admitted that at no stage did she have a bigger house and that she was living in a flat. It transpired in cross-examination that the gardening that she was referring to in the affidavit was a garden back home in Hungary when she was very young.[16]
[16] T 47
22 On the issue of the plaintiff’s garden, I am not satisfied that in her affidavit the plaintiff deliberately set out to mislead the Court. The plaintiff gave evidence through an interpreter. I observed the plaintiff closely in giving her evidence. I formed the view that she was very truthful in her evidence and a witness of credit. Her frank concession that she does not have a garden leads me to conclude that at the time of the preparation of the affidavit there was a communication problem caused by language difficulties and that the plaintiff did not fully understand the effect of the affidavit she was being asked to swear.
23 True it is that her son, Steven, in his affidavit, also refers to the garden. I have formed the view that once the error was made, it was compounded by this first affidavit. However, I am not satisfied that the plaintiff herself has set out to mislead the Court and I am not satisfied that this issue is one upon which I should allow myself to disregard her evidence.
24 The plaintiff continues to see Dr Daly on a monthly basis. She stopped taking Tramadol in 2008 and commenced taking Panadol, which she now takes on a daily basis. The plaintiff’s case is that, because of her injury to her back, she is unable to work and her ability to earn income has been destroyed.
25 The plaintiff’s second affidavit was sworn on 27 July 2010.[17] The plaintiff deposed in her second affidavit that her condition has not improved since the time that she swore the first affidavit. She says:
“… I continue with low back pain which is constantly present but which varies in intensity. Often the increased intensity is related to activities. Even walking can result in increased pain. Worse pain is also associated with sitting or standing for too long. Any activity likely to test my back, such as attempts to bend or lift or stretch, almost always result in worse pain, usually a few hours afterwards. On occasions the intensity of the pain increases for no apparent reason or cause. Occasionally the pain spreads into my left legs as far as the toes. … .”[18]
[17] PCB 19
[18] The plaintiff’s second affidavit at paragraph 2 – PCB 20
26 The plaintiff continues to suffer from disturbed sleep. She says that she has limited work skills and poor English, and a limited ability to write. She has never worked in an office. Her background is limited to purely physical labour, including farm and factory work. She has no computer or typing skills and it is unlikely she has any ability to adapt to an office-based environment.
27 I had the opportunity of assessing the plaintiff as a witness. She struck me as being a truthful witness who tended to downplay her injury and the consequences of it. I find she was an entirely genuine witness who was genuine in her complaints. She had an excellent work history up until about November of 2005. Further, it is admitted by the defendant it has taken the opportunity to secure some video surveillance of the plaintiff which was not produced, and I conclude that this evidence, if produced, would not have advanced the defendant’s case.
28 I accept and act upon the evidence of the plaintiff.
The Statutory Scheme
29 The application is brought pursuant to s.134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in sub-paragraph (37)(a) of s.134AB of the Act, which requires the plaintiff to prove she has suffered a “permanent serious impairment or loss of a body function”.
30 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[19]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[20]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a) and subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity. To arrive at a loss of earning capacity of 40 per cent or more, the plaintiff must compare her income from personal exertion prior to suffering injury with the gross income which she is now able to earn from suitable employment or capable of earning from suitable employment. “Suitable employment” is defined in s.5 of the Act and was amended to operate from 1 July 2010 regardless of when the injury occurred.
(d)
Subsection (38)(c) provides the impairment must have consequences in relation to “pain and suffering” and “loss of earning capacity” which, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of the hearing and permanently.
(g)
Subsection (38)(j) provides the assessment of “serious injury” is to be made at the time of the hearing of the application.
(h)
Subsection (38)(b) 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.
(i)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(j)
In an application where it is alleged the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti;[21]
(k)
I am required by s.134AE 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.
[19] S.134AB(1) and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[20] Barwon Spinners at paragraph 33
[21] [1994] 1 VR 436
Issues Raised
31 The plaintiff’s case is relatively straightforward. Her case is that she had worked long hours for the defendant for a number of years performing heavy work prior to around 23 November 2005. At that time she slipped over at work and began to experience pain in her lower back and in her left leg which gradually worsened and which seems to be exacerbated by periods of prolonged standing or sitting or bending or twisting.
32 The defendant’s case is also relatively straightforward. The defendant’s case is that the plaintiff may have suffered an injury at work on or about 23 November 2005 which injury exacerbated a pre-existing lumbar disc degeneration. The defendant’s case is that the plaintiff may have been incapacitated for a very brief period but the effects of the aggravation have long since dissipated and what the plaintiff is left with, in terms of back pain or impairment, results not from the work-related injury but from the pre-existing lumbar disc degeneration which is not work-related.
33 In these circumstances, it is necessary to examine the history of medical treatment of the plaintiff.
History of Medical Treatment
34 Dr Daly, the plaintiff’s general practitioner, provided his first report on 22 July 2008. The plaintiff had given him a history of slipping at work, landing heavily on her left side. She tried to resume work but was limited by pain. A CT scan showed:
“Disc protrusion at lumbosacral level as well as L3/4 stenosis.”
35 An MRI scan showed similar findings, with disc degeneration from L3 to S1.
36 Dr Daly referred the plaintiff to Mr Wilde, an orthopaedic specialist, who recommended conservative management. At the time of writing his report, Dr Daly opined:
“She remains in pain in [the] lower back and left leg and has numbness in
[the] left leg and the lower leg.”[22]
[22] PCB 28
37 His report refers to the fact that the plaintiff, in 2008, was unable to work due to other injuries, namely, left carpal tunnel syndrome and the fact that she was then due to undergo right carpal tunnel surgery. She also had a right inguinal groin hernia in need of repair.
38 Dr Daly again reported about a year later, on 21 July 2009.[23] That report refers to the fact that the plaintiff had both right and left carpal tunnel syndrome at that time.
[23] PCB 29
39 A final report from Dr Daly was provided on 12 May 2010.[24] At the time of writing that report, Dr Daly opined:
“… she has remained unable to return to work and is still limited by pain
in her back and left leg.
She requires painkillers although only intermittently, having been prescribed Tramal 50mg, 4 times in the past 12 months.”
[24] PCB 30
40 Dr Daly went on to say:
“She has been classed as fit for modified duties since 2006 but she has not been offered work as apparently these duties were not available at the meatworks she previously worked for.
Unfortunately she has not been rehabilitated in other areas of employment.
Her general health remains well and she has had stable hypertension for a number of years.
She has also had successful bilateral carpal tunnel surgery.
She has a poor prognosis as she has not worked since 2006.”
41 Mr Peter Wilde, orthopaedic surgeon, provided his first report on 7 November 2007.[25] In the report under the sub-heading ‘Progress’, Mr Wilde said:
“I reviewed her CT scan, which demonstrated stenosis at L3/4 and a right para-central disc protrusion at the lumbosacral level. Canal stenosis at L3/4 was quite severe and due to a combination of disc bulging and facet joint hypertrophy.
. . .
Nevertheless the MRI scan showed disc degeneration at L3/4, L4/5 and the lumbosacral levels. The exit foraminae at all levels appeared to be adequate, although the lumbosacral level was poorly visualised. There was an annular tear at L3/4 and there was a very slight stenosis at L3/4 and L4/5. There was no definite neural compressive lesion evident.”
[25] PCB 31
42 In his summary, Mr Wilde opined as follows:
“Ms. Zsuzsanna Bujdoso is a fifty-three-year-old woman with a chronic lumbar spinal condition. Her symptoms first developed with an injury at work on 23/11/2005, as described above. Prior to this injury she denied significant lumbar symptoms.
The diagnosis is an aggravation of lumbar spondylosis without radiculopathy. As she described her injury to meeting at work [sic], I accept that it has been contributory to the onset and perpetuation of her current symptoms.
Until now, treatment has been with conservative means and this has been appropriate. Future treatment should remain along conservative lines. I have suggested that she should attend a physical rehabilitation programme that involved hydrotherapy, regular exercises and weight loss.
At present, I do not believe that surgery is indicated. It is unlikely that surgical treatment will be required in the foreseeable future.
The prognosis is poor and I expect that she will always suffer with low- grade symptoms of chronic lumbar pain and stiffness. She will have to modify personal and work activities to accommodate her symptoms to avoid further deterioration.
The condition has stabilised.”
43 Mr Wilde went on to opine that the plaintiff would be unable to return to pre- injury employment in the future. He said that she has a demonstrated limited capacity for even sedentary or light duties employment and she has few transferrable skills, making it difficult for her to find employment with a new employer.[26]
[26] PCB 34-35
44 A further medical report was obtained from Mr Wilde dated 24 June 2010. In that report, Mr Wilde does not change his opinion.[27]
[27] PCB 34-40
45 The plaintiff tendered evidence in the form of a medical report from Dr Robyn Horsley, dated 19 May 2010. Dr Horsley is an occupational physician.[28] In Dr Horsley’s opinion:
[28] PCB 41-47
“I believe that the events as described and the clinical presentation are consistent. I believe that work has been a significant contributory factor. I believe that she sustained a discal disruption on the background of a constitutional lumbar spondylosis.
I believe that the following work restrictions apply:
• Avoidance of repetitive overreaching • Avoidance of repetitive pushing and pulling • Avoidance of repetitive bending and lifting • Avoidance of truncal rotation.”
46 Dr Horsley went on to opine that the plaintiff has restricted ability to sit or stand for long periods of time. He went on to opine as follows:
“I believe that Ms Bujdoso has sustained a discal disruption in the fall on 23rd November 2005. I believe that the clinical presentation, the radiology and the mechanism of injury are compatible and consistent.
I believe that her prognosis for return to work is poor. I believe that when one takes into account her barriers to return to work, which include her age at 56, her five years out of the work force, having been granted a disability pension two years ago, her educational background, her literacy issues, her lack of computer skills, her lack of qualifications and her physical restrictions that her opportunities are significantly restricted. She is limited to the manual arena within the restrictions as outlined above. I believe that in an open and competitive market place, she is unlikely to secure employment successfully. In theory, she has capacity for work of 15 to 20 hours per week within the restrictions as outlined above. The reality is that her prognosis for return to work is poor. I believe that her partial incapacity for work is permanent.”[29]
[29] PCB 47
47 The plaintiff’s Court Book is replete with vocational assessments by the Victorian WorkCover Authority. Each of those assessments proceeds on the basis that the plaintiff is fit to resume employment in positions of general process worker (light duties) or hand packer (light duties) or packer or container filler, product assembler, sales assistant and enquiry and an admissions clerk. I am not convinced that the plaintiff has the ability to carry out these tasks or obtain work in these areas, because of her ongoing impairment.
48 A job seeking assessment fifteen weeks after the plaintiff sustained injury and written in approximately March or April of 2006 provides, inter alia, as follows:
“At our initial JSA meeting on 2nd August 2006, Ms Bujdoso agreed to participate in the JSA Program. She agreed to focus her job seeking efforts in redeployment in the positions of General Process Worker (light duties), Hand Packer (light duties), Packager and Container Filler, Product Assembler, Sales Assistant and Inquiry (sic) and Admissions Clerk.
Ms Bujdoso advised WorkStreams on 09th October 2006 that she job seeks the newspapers weekly, however, to date has not been able to identify any suitable job vacancies to apply to.
Ms Bujdoso reported that to date she has been approaching businesses in her local area and approaching friends. Ms Bujdoso stated that she has several factories however, reported that most of them have closed and are no longer operating.
Ms Bujdoso agreed to continue with weekly job seeking both independently and with WorkStreams assistance.”[30]
[30] PCB 83
49 A subsequent assessment of the prospects of the plaintiff securing suitable employment by Petrula Pavlidis, on behalf of the Victorian WorkCover Authority, found that the prospects of the plaintiff “securing suitable employment is low”.[31]
[31] PCB 84
50 Finally, it was the opinion of a Medical Panel, as at 1 October 2007, that the plaintiff was suffering from an aggravation of lumbar degenerative disc disease with referred pain to the left leg relevant to the claimed back injury.[32]
[32] PCB 107
51 The defendant tendered a medical report from Mr Robert Marshall dated 23 December 2006.[33] Dr Marshall thought that on physical examination the plaintiff was exaggerating her movements, and he opined:
“I do not believe that Ms Bujdoso’s symptoms are the result of physical injury. I agree with the reports sighted (sic) above. She is, in my opinion, suffering from age-related degenerative changes in her spine, which are not work-related but might well produce some back pain. Her knee joint is normal to examination and I believe there is no physical explanation for her persistent symptoms 12 months after a fall onto her buttocks.”[34]
[33] DCB 6
[34] DCB 9
52 The defendant also relies upon a report from Dr James Rowe, a specialist occupational physician, of 31 January 2008.[35] Like Dr Robert Marshall, Mr Rowe was of the opinion that the plaintiff may have temporarily aggravated the underlying degenerative process but it was his view that what he called “the work-related component” has resolved. He went on to say:
“This lady does have current work capacity. That is, her incapacity is not indefinite. Any incapacity she may have is related to the degeneration in her back and is not a work-related matter.
Suitable alternative work has been identified and she would be capable of returning to such work as identified in the Vocational Assessment. That is, although her English is reasonable, she would be able to work as a general process worker, hand packer, package and container filler (depending on the weights lifted) or product assembler. I do not think she has a capacity to work as a sales assistance or enquiry and admissions clerk in a hospital because of her English.
She is though, fit for modified duties without heavy lifting.”
[35] DCB 26
53 In a subsequent report dated 28 April 2010, Mr Rowe opined:
“In summary, this lady has a lumbosacral disc degenerative back, previously associated with some radiculopathy but that is no longer the case. There was not a lot to find on physical examination. She is fit for alternative or light work.”[36]
[36] DCB 32
54 On 10 May 2010, Mr Geoffrey Klug, neurosurgeon, provided the defendant with a medical opinion relating to the plaintiff.[37] Mr Klug provided a lengthy and detailed discussion and opinion relating to the plaintiff. It is important, and I set it out:
[37] DCB 34
“Although I have not reviewed the films directly the reports mentioned above would indicate this person is suffering from a multi-level degenerative disorder involving her lumbar spine. The changes described did appear to be of some significance and certainly could be associated with complaints of back pain with some referral of pain into the lower limbs.
When I examined this person there did appear to be genuine restriction of back movements related to pain. I could not detect any objective neurologic abnormality in either lower limb. I believe that the pain noted by this person of an intermittent nature in the left lower limb would be referred pain from the back.
I am sure that the significant changes noted on the imaging studies would very much have been present at the time she described the incident leading to the injury. She denied prior to that time suffering from a back disorder. If indeed this is a true history and I saw no reason to doubt such I would have to be of the opinion that the incident described probably led to an aggravation of the pre- existing disorder with such aggravation leading to the emergence of symptoms which have persisted with some severity up until the present time.
In coming to my conclusions I am relying on the history provided by this person. As indicated she certainly denied any symptoms related to her back. I do not have any medical documentation related to her past condition which could confirm or deny this statement.
As indicated when I examined this person I was not convinced of any objective neurologic abnormality. I did not detect any significant evidence of muscle wasting.
In regard to her prognosis, such would have to be considered guarded. As indicated she does have an established disorder involving her lumbar spine. I feel it’s more probable than not that her current symptoms will persist with some waxing and waning on an indefinite basis.
I did study the vocational assessment report dated 22nd January 2008. I note that a number of suggested types of employment were offered. These include working as a hand packer, product examiner, machine operator, packager and container filler and service assistant.
From the purely physical point of view she would probably have some limited ability to undertake these types of employment which did not appear to be unduly demanding from the physical point of view. I consider, however, that if she did indeed undertake these types of employment it would be appropriate that she perform such in a part-time way. It would be most appropriate that she worked half a day a week some three days per week in the first instance to see how she coped with the demands of such employment.
Her only fair command of English would not appear to be a contraindication in regard to these particular types of employment. Overall I feel, however, that the perceived severity of her current condition would make it difficult for her to undertake even these particular types of employment. Overall I feel her chances of gaining these employments in the open workplace would be somewhat bleak. Of the various employment suggested the most appropriate would appear to be that of working as a hand packer or a product examiner.
In summary I do believe this person does have a genuine physical disorder and that although her employment is not the sole cause of such it is still materially contributing to her current condition. I saw no reason to suggest that she was deliberately trying to mislead. She appeared to be a calm person without an obvious functional presentation. I saw no reason to suspect that she was undertaking activities of a type that she did not describe of a physical nature. In regard to the question of treatment, I believe options are limited.”
(My emphasis added)
55 I have set out in some detail the report of Mr Klug, because of all of the medical evidence available to me in this particular matter, his report I found to be the most objective and balanced. His report and his findings in relation to the plaintiff are consistent with the view that I took of the plaintiff, namely, that she appears to be an entirely genuine plaintiff who is not given to overstating her symptoms. Mr Klug accepts that the plaintiff suffered an aggravation of a pre-existing lumbar spine degeneration at the time of her injury and that her symptoms will persist with some waxing and waning on an indefinite basis. He finds that she has a genuine physical disorder which was materially contributed to by her employment with the defendant. I accept and act upon the report of Mr Klug.
Discussion
56 Mr Stanley submitted that I should conclude that the plaintiff’s application is disingenuous. In this regard, he pointed to the conflict of the evidence in the affidavit with the evidence given viva voce by the plaintiff that she does not even have a garden. For the reasons that I have set out above, I reject this submission.
57 Mr Stanley then submitted that I should take into account the fact that the plaintiff would have been unfit for employment because of left and right-sided carpal tunnel syndrome. However, I have concluded, based on the medical report of Mr Murray Stapleton, that any issues related to the plaintiff’s carpal tunnel problems have now resolved.
58 Mr Stanley criticised the plaintiff for only having had “minimal treatment” for her back injury since 2007. He said that she had had no physiotherapy or hydrotherapy since that time. I accept the plaintiff’s evidence that she found that that treatment was helpful but that she has been unable to resume it because the defendant has refused to pay for it.
59 Mr Stanley accepted that the plaintiff may have suffered an injury in the form of an aggravation of a pre-existing lumbar disc degeneration when she fell at work on or about 23 November 2005. But, he said, the work consequences from that aggravation have now dissipated and what the plaintiff is left with is a degenerative lumbar spine or a “light work back” which is not work-related. As I have said earlier, I accept and act upon the medical evidence provided by the defendant through its doctor, Mr Klug.
60 I accept the submissions of Mr Hore-Lacy that the pain and suffering consequences and the impairment consequences from the aggravation of a pre-existing lumbar disc degeneration which occurred on 23 November 2005 have not ceased as was submitted by Mr. Stanley. Mr Klug is firmly of the view that the plaintiff’s ongoing pain and suffering consequences and limitations of movement and the impairment to her ability to find suitable employment are ongoing and will restrict her ability to carry out suitable employment into the foreseeable future.
61 Mr Stanley submitted that the plaintiff has suffered little or no diminution and social activities, there is no reduction in her gardening activity, and her housework, albeit done slowly, is being done by her. The plaintiff said that she still enjoys walking up to thirty minutes a day. However, I accept that the plaintiff does suffer on a permanent and daily basis from low-back pain which limits her movements and particularly her ability to work. I accept her evidence that a great deal of her social life previously revolved around her work-related activities and in that way, because she is not able to work, she has suffered permanent ongoing consequences and loss of enjoyment of her life. If the plaintiff has any work capacity, in my view, it is very limited and would be limited to at most two to three hours a day, two or three days a week.
62 In my view, the plaintiff has proved, on the appropriate standard, that she suffers loss of earning capacity to at least 40 per cent of her pre-accident earnings and this will be ongoing. It needs to be remembered that the plaintiff at first tried to return to work after the accident on 23 November 2005 but her problems got worse and she had to stop work on 9 December 2005. The plaintiff does not have a large circle of friends and her activities socially were mainly at work. She has poor English skills. It cannot be guaranteed that she can work on a permanent or regular basis.
63 Mr Stanley submitted that the plaintiff has had little or no treatment since 2007 but he has not suggested what treatment she should have to relieve her symptoms. Physiotherapy and hydrotherapy were denied to her by the defendant.
64 The defendant attacked the plaintiff’s credit on the basis that she did not disclose in her affidavit material that she had been suffering from left and right-sided carpal tunnel syndrome. I agree with Mr Hore-Lacy’s submission that the force of that criticism is lost when it is realized that the full extent of the injury was detailed in the medical reports discovered. As I have said previously, I prefer the evidence of Mr Wilde, Mr Daly and Mr Klug ahead of the evidence of Messrs Marshall and Rowe. Neither Dr Marshall nor Dr Rowe were able to opine when the work-related pain should have ceased in the plaintiff.
65 I am satisfied that on or about 23 November 2005 the plaintiff fell during the course of her employment with the defendant. The consequences of her fall onto her buttock area were that she aggravated a pre-existing lumbar disc degeneration causing low-back pain and pain into her left leg area. I am satisfied that that pain continues and that the plaintiff has suffered a loss of earning capacity of 40 per cent or more. I am also satisfied that the plaintiff suffers ongoing pain and suffering consequences in the form of pain to her lower back which has caused her restriction of movement and restriction in the activities which she can perform and that those pain and suffering consequences are more than considerable or marked.
66 I am satisfied that the aggravation suffered by the plaintiff to her lumbar disc degeneration when she fell on 23 November 2005 caused an injury which was “serious” within s.134AB(37) of the Act.
67 Accordingly, the plaintiff will have leave to commence a proceeding claiming damages for pain and suffering and loss of earning capacity.
68 I will hear the parties on costs and related matters.
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