Cabraja v Staples Australia Pty Ltd (ABN 94 000 728 398)
[2016] VCC 1931
•14 December 2016
Callum
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03642
| ANTONIJA CABRAJA | Plaintiff |
| v | |
| STAPLES AUSTRALIA PTY LIMITED (ABN 94 000 728 398) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 December 2016 | |
DATE OF JUDGMENT: | 14 December 2016 | |
CASE MAY BE CITED AS: | Cabraja v Staples Australia Pty Ltd (ABN 94 000 728 398) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1931 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to cervical and thoracic spines – Chronic Pain Syndrome – development of psychological disorder in the nature of Major Depressive Disorder – widespread pain – disentangling consequences from physical injury from consequences of psychological injury – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted in respect of both pain and suffering, and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms A Smietanka | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms J Forbes QC with Ms V Nadj | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Cabraja, first started to develop problems in her neck in 2004. In 2006, she felt a sharp pain in her neck in the course of her employment duties, which spread to her left shoulder. She was off work for some weeks but returned to full-time normal duties.
2 In late 2009, in the course of lifting heavy items, she said she suffered an increase in her neck pain and developed pain in her middle back. In mid 2010, the pain became particularly intense and she sought medical treatment. She was off work for a period, and returned to restricted duties, although she was told there were no further light duties available to her. She has not worked since 2010. She has undertaken a number of courses in an attempt to acquire additional skills.
3 Ms Cabraja has been treated by a number of general practitioners, and by a range of specialists. The treatment has been essentially conservative, and included physiotherapy and medication.
4 She alleges she has suffered a psychological reaction to the physical injury in the nature of a Major Depressive Disorder, alternatively an Adjustment Disorder. She claims she is unable to undertake a range of domestic, social and recreational duties and pastimes. She says she may be able to work restricted hours on alternative days, but has little work capacity.
5 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of employment from 2006. The body function said to be lost or impaired is the spine, including the cervical and thoracic spines.
6 In addition, Ms Cabraja claims to have suffered a permanent severe mental disorder in the nature of a Major Depressive Disorder or Adjustment Disorder. The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering and loss of earning capacity.
7 Ms Cabraja was the only witness called to give evidence and be cross-examined. In addition, her affidavits, medical and radiological reports, vocational reports and Claim Forms were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
8 Ms Cabraja is now thirty eight. She was born in 1978 in Croatia. In 1992, war broke out in her hometown and her family was forced to relocate. She lived elsewhere in Croatia for a number of years before moving to Lubeck, Germany. In September 2000, Ms Cabraja and her family arrived in Australia as refugees.
9 Upon arrival, she spent 510 hours in English classes. She completed a course in real estate, but did not work in that area.
10 In 2003, she commenced work as a meat packer in Brooklyn for three months.
11 Later in 2003, Ms Cabraja started work with Corporate Express Australia Pty Ltd, which changed its name to Staples Australia Pty Ltd (“Staples”, the defendant). Staples sold office supplies to businesses, including furniture, computers, stationery, soft drinks, coffee, sugar and liquor. She started as a casual.
12 Ms Cabraja was made permanent in 2004. She worked as a picker and packer. She spent about 50 per cent of her work time doing each job. Picking included picking up and moving boxes, weighing up to 20 kilograms. Packing involved moving tubs and boxes from the conveyor down to the packing tablet, around 15 centimetres lower. The tubs and boxes weighed up to 15 kilograms and had to be moved more than twenty times an hour. Ms Cabraja then had to pack them into three standard size boxes.
13 She was physically and emotionally well in 2004.
The incident and its consequences
14 Ms Cabraja claims her work with Staples involved heavy lifting, and was repetitive and demanding. She claims she was required to lift and manoeuvre boxes weighing 15 kilograms and more, on a regular basis. In 2004, she says she developed dizziness and stiffness in the neck. She thought the problems may have been related to an ear infection. She also developed a lump on the left side of her neck. She went to her local general practice and was treated by Dr Horvatt and Dr Sulava of St Albans.[1] Apparently radiological investigations were carried out, but showed no abnormality.
[1]No reports from either of these practitioners were tendered
15 Subsequently, Ms Cabraja also saw a Dr Mitchell, of the Kealba Clinic.[2]
[2]Likewise, there is no report from this practitioner
16 In addition to returning to full-time duties in 2006, Ms Cabraja also did some private cleaning for short periods of time. Over this time, she received physiotherapy from Ms Jenny Tran.[3]
[3]Plaintiff’s Court Book (“PCB”) 76 – 77
17 Ms Cabraja claims that in February 2006, she was lifting a heavy tub onto a packing table and felt a sharp pain in her neck, spreading to the left shoulder. She saw Dr Sulava. A CT scan taken at the time showed no abnormality.[4] She was off work for several weeks, and had osteopathic treatment. She returned to lighter duties, which gradually increased, until she resumed full hours and normal duties. An ultrasound of the left shoulder was also normal.
[4]PCB 266
18 In 2008, she suffered continuing left-sided neck pain and dizziness. She saw a chiropractor and went to see Dr Alex Terrace at the Cairnlea Clinic. She saw Mr Brian Costello, an ear, nose and throat specialist, who detected no ear problem. Dr Terrace thought the problems may be to do with stress.
19 In 2009, Ms Cabraja said a new system for packing was introduced by Staples. She was required to lift cases weighing 15 kilograms five to ten times per hour. Her neck pain increased. She went to see a Dr Tan at a St Albans medical clinic. In December 2009, a neurologist, Dr Freilich, undertook nerve conduction tests and an MRI scan of the brain. Nothing of significance was found.
20 At the end of 2009, she was moved to the “country despatch area” and was again required to lift heavy cases on a regular basis. She said her neck pain increased and she started to develop pain in her mid back. She continued in this work until May 2010, when she developed sharp pain between her shoulder blades. She woke up one morning and found weakness in her left arm. She went to the Western Family Medical Centre as she was able to obtain an immediate appointment, and saw Dr Utthanaphol. According to that practitioner,[5] Ms Cabraja complained of left shoulder and left upper chest pain. An injury to the left shoulder was suspected. An ultrasound was normal. Ms Cabraja requested to be placed on WorkCover and said that she had the same injury five years before. Dr Utthanaphol was uncertain whether the problem was work related, although there could have been a work aggravation. She referred Ms Cabraja to a physician, Dr Middleton, but she did not attend. A CT scan of her neck showed no abnormality.[6] A chest x-ray was also normal.[7] Dr Utthanaphol prescribed analgesia. An MRI scan of the cervical spine was also normal.[8]
[5]PCB 87 – 88
[6]PCB 270
[7]PCB 271
[8]PCB 272
21 Dr Utthanaphol provided certificates for total incapacity from 22 May 2010 until 10 July 2010. Ms Cabraja resumed work on light duties, three hours per day, three days per week. According to Dr Utthanaphol, she coped well. The hours were increased to four hours per day, five days per week. She last saw that practitioner on 23 July 2010.
22 Dr Utthanaphol referred Ms Cabraja to Dr Kathleen Ooi, a rehabilitation physician and pain specialist, in June 2010. She gave a history of neck pain since 2005. She described to Dr Ooi pain in the left clavicle and left chest area. She was prescribed pain-relieving medication, including Norspan patches, to which she had an adverse reaction. Dr Ooi said there was no evidence of radiological abnormality nor wasting. Previous MRI and CT scans of the neck showed an old crush fracture at T7. Dr Ooi thought Ms Cabraja had “significant musculoskeletal pain with muscle spasm”.[9] She referred Ms Cabraja for physiotherapy. Dr Ooi said the return to work on light duties, five hours a day, three days a week, was managed by Ms Cabraja without any problems. She was able to cope in her duties at home.
[9]PCB 72
23 Dr Ooi noticed a lump on the left side of the neck which she said was a “contracted sternocleidomastoid muscle overlying her cervical vertebrae”. Dr Ooi thought she was making significant gains. She said:
“… I asked her to start walking for half an hour every day to maintain her general fitness and also wrote to her physiotherapist asking for her program now to include strengthening exercises. I, at that stage, got the distinct impression that she did not plan to proceed with recommendations and also noted that she did not book in to see me again in 8 weeks’ time as I had requested. … I thought that she was overall frightened that there was underlying significant neurological problems (sic) and that she did not believe me when I told her that there was not. I thought that there was a high chance that she would continue to look for more serious causes for her symptoms and remain tense and scared whenever she feels any muscle discomfort in her shoulders or neck.”[10]
[10]PCB 73
24 Ms Cabraja then consulted Dr Andrianakis, general practitioner, of St Albans, whom she first saw in July 2010. In evidence, Ms Cabraja said that she left Dr Utthanaphol as she was told the doctor no longer wished to see WorkCover patients. In cross-examination, she denied leaving Doctors Utthanaphol and Ooi because they recommended she increase her work hours.
25 Ms Cabraja has remained under the care of Dr Andrianakis through to the present time. He undertook various investigations including an ultrasound of the neck,[11] and MRI scan of the cervical and thoracic spines[12] which showed mild thoracic scoliosis and a small disc protrusion at T7-8 which was said by the radiologist to produce mild impingement on the spinal cord.
[11]PCB 274
[12]PCB 277 – 277
26 Dr Ooi had previously referred Ms Cabraja to Dr Clayton Thomas, a pain management specialist, whom she saw in November 2010. His impression was that she was suffering a Myofascial Pain Syndrome. He disagreed with the radiologist that at the T7 level there was compression of the cord, and did not think there was any link between that and her complaints of pain. He recommended a strengthening and stretching program and that she ought to lose weight. He further suggested a rehabilitation course at Dorset Rehabilitation, but this was not approved by WorkCover.
27 In May 2011, Dr Andrianakis prepared a return to work plan, four hours a day, three days a week, on light duties. At the time, he was prescribing pain-relieving and anti-inflammatory medications and physiotherapy. When she returned to work to take up the light duties, she was told there were no duties available.
28 Ms Cabraja decided she ought to expand her skills and in 2011, sought the assistance of MatchWorks, a vocational organisation. She completed a Certificate III in Business Administration after a six-week course at the Selmar Institute in St Kilda.
29 In 2012, Dr Andrianakis referred her to a psychologist because of ongoing depressive symptoms, and then to Dr Byron Rigby, a psychiatrist. She has remained under his care, seeing him once a month or so, through to the present time.
30 Further, in 2012, Dr Andrianakis referred her to Professor Richard Bittar, neurosurgeon. To that practitioner, Ms Cabraja complained of constant left-sided neck pain with referred pain down the arm and interscapular pain radiating to the chest wall. He obtained a history that the neck pain commenced in 2006, but the interscapular pain started some time in 2010 with a change of duties. He reviewed the MRI scans of November 2011[13] which he said revealed a scoliotic deformity with no evidence of significant pathology in the cervical spine. He noted the right disc protrusion at T7-8. He thought her symptoms were related to the scoliotic deformity which had been aggravated by her work duties, and thought she did not have any realistic capacity for work.
[13]PCB 276 – 277
31 In June 2013, Dr Andrianakis referred Ms Cabraja to Mr Armin Drnda, neurosurgeon. She complained of pain in the neck, right shoulder and mid back. He said the MRI scan of 2012[14] was “practically normal”. He described the scoliosis as “mild”. In the thoracic area, he said there was no contact between the protrusion and the spinal cord. He suggested a multidisciplinary pain management program, for Ms Cabraja to lose weight and to exercise regularly.
[14]PCB 278
32 At the suggestion of MatchWorks, Ms Cabraja completed a Certificate IV in Business Administration over a period of three months in 2012, attending two days per week.
33 In early 2013, Ms Cabraja attempted a Diploma in Information Technology at the Victorian Institute of Technology. It was a two-year course, commencing in February 2013 for six hours each Saturday and Sunday. She said she could not sit for the required time and had increasing upper back and neck pain. Supported by Dr Andrianakis, she sought to reduce her study load to one subject per semester but this did not eventuate.
34 In March 2013, Dr Andrianakis referred her back to Dr Clayton Thomas, who sent her to another pain specialist, Dr Kevin Young, consultant in pain management and rehabilitation medicine. She complained to that practitioner of persistent left cervical and thoracic pain with a severity of 5 to 8 out of 10. Dr Young noted some cervical kyphosis.
35 As to the MRI scan of the cervical spine of 23 November 2011, Dr Young said:
“… [it] showed no neural impingement or disc herniation and MRI of the thoracic spine, which showed a right paracentral disc protrusion at T7-T8 with mild impingement of the right anterior cord with no change in signal, but no other neural impingement.”[15]
[15]PCB 171
36 Dr Young referred Ms Cabraja for a functional restoration pain management program, which was commenced in September 2013. The program concluded in December 2013 and the discharge summary noted her as being “withdrawn and passive” and “ambivalent to changing her current approach to managing her pain”. She was said to lack engagement in the program, although there were some improvements.
37 Dr Young arranged a ketamine infusion in July 2016 which provided some initial relief, but she was unable to tolerate the procedure.
38 At the present time, Ms Cabraja said her pain in the neck and thoracic spine has been getting worse. She occasionally suffers headaches and nausea. She finds it difficult to sit for more than 20 minutes or to be on her feet for more than 45 minutes. The pain in her upper back wakes her several times a week. She does stretching exercises as advised by her physiotherapist. She lives with her parents and sisters and no longer helps with the heavier domestic chores. She is able to undertake her personal activities of daily living with some restrictions. She said she has put on weight since the injury. In 2010, she weighed 75 kilograms, and now weighs 100 kilograms. She says she socialises less now and barely goes out at all.
39 She sees her psychiatrist, Dr Rigby, once or twice a month and attends for five physiotherapy sessions per year, funded by Medicare. She sees Dr Young every three months or so, and Dr Andrianakis on a monthly basis for the prescription of medication. She takes medication, Pristiq, each night, together with Avanza. She wears a Norspan patch, although sometimes has a reaction. She takes between four and eight Mersyndol tablets per day, depending upon her pain levels. She also takes Celebrex and Panadeine Forte tablets if the pain is bad.
40 She has been unable to complete her information technology diploma and has not worked since 2010.
41 More recently, she has pain into her left arm and under the left armpit, with tingling into the fingers. She has had nerve conduction studies which are all normal. She suffers numbness into the feet and legs and sometimes her legs feel heavy. She has low-back pain, although she was uncertain as to when it commenced.
42 In relation to her information technology course, it was suggested she left the course as she was “not happy with the trainer”.[16] She denied this.
[16]Defendant’s Court Book (“DCB”) 163
43 In cross-examination, she confirmed that she had applied for many jobs and that she was keen to work. Despite these applications, she had only been granted a few interviews. She was not applying for work at the present because of the pain and panic attacks which she had been experiencing more recently. She agreed she regularly used her computer. She agreed she had the skillset to work as a receptionist or in administration. She thought she could work part time, possibly two to three hours per day each alternative day. She acknowledged that all doctors had told her to lose weight.
44 She walked regularly, drove her car to the shops, but not longer distances. She continues to attempt to improve her English language skills.
Medical evidence
45 Ms Cabraja first attended the Melbourne Whiplash Centre in September 2006. She was treated for pain in the left side of her neck and dizziness. Following this consultation, Dr Lauren Harding, osteopath, reported that there were significant objective findings including a neck disability index of 24 per cent, a symptom intensity rating of 31 per cent and a significant restriction in Ms Cabraja’s range of motion of the left and right rotation and extension.[17] Dr Harding recommended a further fourteen sessions to strengthen Ms Cabraja’s neck. In January 2007, the remaining three osteopathic management sessions were replaced with physiotherapy sessions by Mr Robert De Nardis, as Dr Harding was taking extensive leave for the year.[18]
[17]PCB 64
[18]PCB 66
46 Dr Kathleen Ooi, rehabilitation physician, initially referred Ms Cabraja to Mr Byron Espedido, physiotherapist, on 25 June 2010. In addition, on 23 June 2010 she referred her to Dr Clayton Thomas, at the Dorset Rehabilitation Centre. In her referral letter, Dr Ooi reported that Ms Cabraja had first developed neck problems five years earlier working in the packing line and that she was fixated on a lump she felt on the left side of her neck. Dr Ooi said Ms Cabraja had an overriding fear of doing permanent damage to her neck and shoulders, however, that was not the case and she recommended Ms Cabraja would benefit from cognitive behavioral therapy.[19]
[19]PCB 69
47 In a report of January 2012, Dr Ooi reported first examining Ms Cabraja on 25 June 2010, when she described constant pain in her left clavicle and left anterior chest, radiating into her left axilla.[20] Dr Ooi assessed Ms Cabraja’s pain at that stage as musculoskeletal with muscle spasm and recommended she see a physiotherapist. She further prescribed Tegretol and asked her to return in four weeks for a review. Upon this review, on 23 July 2010, Dr Ooi reported that Ms Cabraja was complaining of ongoing pain over her left axilla, left clavicle, sternum, and lower back pain from walking for a period over 45 minutes.[21] Ms Cabraja had further complained of low back pain when cleaning her bathroom and toilet. However, she was sleeping well, had managed a trial of return to work on light duties for five hours a day, three days a week and increased her activities at home.[22]
[20]PCB 71
[21]PCB 72
[22]PCB 72
48 Dr Ooi reported that Ms Cabraja was fixated on a lump on the left side of her neck. Once examined, Dr Ooi determined this lump to be Ms Cabraja’s contracted sternocleidomastoid muscle overlying her cervical vertebrae. She reported this lump became more prominent when Ms Cabraja turned or tilted her head to the right.[23] Dr Ooi thought Ms Cabraja had made some gains in increasing her range of movement and activity level.[24] However, Dr Ooi believed that Ms Cabraja was not planning to follow her recommendations or attend for a follow-up appointment because her parents had both had significant back and shoulder issues, and she thought that Ms Cabraja was overall frightened that she also had underlying neurological problems. She did not believe Dr Ooi when she was told there was not.[25]
[23]PCB 73
[24]PCB 73
[25]PCB 73
49 Dr Ooi had not seen Ms Cabraja since 23 July 2010; however, in her report of 13 January 2012, said Ms Cabraja had been assessed by Dr Clayton Thomas, who agreed Ms Cabraja’s pain “was almost certainly of soft tissue origin” and that “she would benefit from a rehabilitation program”.[26] Ultimately, in her report of 2012, Dr Ooi diagnosed Ms Cabraja with:
“… a myofascial pain syndrome with significant muscle tenderness and spasm involving the left side of her neck and left anterior chest wall and shoulder girdle. She also has significant anxiety regarding this pain.”[27]
[26]PCB 73
[27]PCB 74
50 Dr Ooi found that this condition was likely to be caused by repetitive overuse of the left shoulder. While Dr Ooi did not believe Ms Cabraja could carry out her pre-injury work duties due to ongoing pain in her left shoulder and neck, she thought that she would be able to tolerate working Monday, Wednesday and Friday for a full shift doing light duties.[28] She recommended that a pain management and physical relaxation and strengthening program be implemented as soon as possible to provide for the best possible resolution of Ms Cabraja’s symptoms.[29]
[28]PCB 74
[29]PCB 75
51 Ms Jenny Tran, physiotherapist, examined Ms Cabraja for management of her neck and left shoulder pain on 29 June 2010. Ms Tran found poor cervical posture with a kyphotic thoracic spine. She found that Ms Cabraja had a shoulder abduction limited to 80 degrees and a very hypomobile thoracic spine and overactive left interscapular musculature. In addition, she found that an x‑ray of Ms Cabraja’s spine revealed a significant finding of T7 vertebra compression. Ms Tran treated Ms Cabraja through gentle joint manipulation, advice on posture, stretching and soft tissue manipulation, which improved her neck but not her shoulder range. This was improved with further treatment on her thoracic spin/left interscapular muscle.[30]
[30]PCB 77
52 Dr Clayton Thomas provided a report to Ms Cabraja’s lawyers on 16 November 2011. He reported examining Ms Cabraja on 19 November 2010. Dr Thomas reported that he believed Ms Cabraja was suffering from some form of Myofascial Pain Syndrome.[31] He recommended that she undergo a stretching, strengthening and aerobic exercise program and that she lose a considerable amount of weight. Dr Thomas formed the opinion that Ms Cabraja’s condition was caused by her pre-injury employment.[32] He further reported that it was “probable” that she did not have the capacity to continue her pre-injury employment; however, found it “probable” that she would “have work capacity nonetheless”.[33]
[31]PCB 82
[32]PCB 86
[33]PCB 84
53 On 18 May 2010, Ms Cabraja attended the Western Family Medical Centre and saw Dr N Utthanaphol.[34] She complained that she had been suffering pain for a day in her left shoulder and the upper left side of her chest. She said she had woken up with pain in the morning and had been unable to lift her left arm. She reported the pain was made worse by her movement at work. Dr Utthanaphol reported Ms Cabraja suffered restriction in her left shoulder movement to 90‑degree abduction and flexion, and it was tender to touch her left shoulder, clavicle and suprascapular region. It was suspected that she could have a left rotator cuff injury. She was prescribed anti-inflammatory tablets and an ultrasound was arranged.
[34]PCB 87
54 She attended the clinic again on 24 May 2010. She reported the pain was worse and she could not lift her left arm at all. On examination, Dr Utthanaphol found that there was no abnormality found, except a minor tenderness on the left lateral breast region and left axillary tail. Ms Cabraja discussed being put on WorkCover with Dr Utthanaphol at this visit, who referred her to WorkCover physician, Dr David Middleton. She did not attend Dr Middleton for examination. She attended the Western Family Medical Centre again on 26 May 2010 and 8 June 2010 and reported her pain had become worse again.
55 On a subsequent visit on 22 June 2010, Ms Cabraja again requested to be put on WorkCover. As such, Dr Utthanaphol, referred her to pain specialist, Dr Ooi, who found no neurological abnormality. Dr Utthanaphol reviewed Ms Cabraja on 16 July 2010 and suggested that she try do light duties three hours a day, three days a week. She coped well with this and on review on 23 July 2010, Dr Utthanaphol increased her work capacity to four hours a day, five days a week. Dr Utthanaphol reported that he believed Ms Cabraja was suffering a musculoskeletal problem; however, was unable to confidently state that the pain was caused by her work.[35]
[35]PCB 88
56 Dr Byron Rigby, psychiatrist, examined Ms Cabraja initially in July 2012. He provided extensive reports as to his treatment and progress. He completed a progress report on 1 December 2016. He reported she had depressive symptoms, including sadness, tiredness, increased weight, self blame, poor concentration and impaired memory.[36] He said Ms Cabraja had reported that she was continuing to engage in external activities, including shopping and taking her dogs to the park across the road. He said she found her pain to be increased on days where she had done this and she struggled mostly with her mid-back, neck, left shoulder and tightness in her calves.[37] Mr Rigby said Ms Cabraja’s depressive condition continued, with ongoing pain that was never less than moderately severe.[38] He remarked:
“I continue to consider that Ms Cabraja’s psychiatric condition is wholly due to pain and incapacity resulting from her injury. There is no trace of self-indulgence, primary gain or secondary gain in her account, her observable behaviour or her progress.”[39]
[36]PCB 140
[37]PCB 140
[38]PCB 141
[39]PCB 141
57 Dr Rigby further remarked that on psychiatric grounds, Ms Cabraja had, and would continue to have, no capacity for work.[40] While he found the psychiatric condition to be a result of her pain and incapacity, he was not certain whether it would resolve, and to what degree, in the event, that her pain and disability were to resolve.[41]
[40]PCB 141
[41]PCB 141
58 Dr Paul Kornan, consultant forensic psychiatrist, reviewed Ms Cabraja on 28 November 2011. He diagnosed her to be suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He stated that Ms Cabraja’s psychiatric state seemed to be at the upper level of chronic, mild severity, and, at times, of moderate intensity.[42] Dr Kornan believed Ms Cabraja’s psychiatric condition had been caused by her employment injuries and their after effects. He thought that from the psychiatric viewpoint alone, she was fit to work and should attend her local doctor to be prescribed an antidepressant medication.[43] He also recommended that Ms Cabraja attend sessions with a psychologist. Ultimately, Dr Kornan thought the prognosis was for ongoing psychiatric ill health for the foreseeable future and that it would continue to last while she was unable to work and return to a normal lifestyle.[44]
[42]PCB 183
[43]PCB 184
[44]PCB 184
59 Dr Kornan re-examined Ms Cabraja on 8 May 2012, when he determined her condition had become worse. Her weight had increased from 90 kilograms to 113 kilograms and she was experiencing difficulties sleeping.[45] Dr Kornan found that “given her presentation at today’s interview, she is unfit to work in her pre injury employment, or alternative employment, based on psychiatric factors alone”.[46]
[45]PCB 191
[46]PCB 192
60 Ms Cabraja was examined by Professor Richard Bittar, neurosurgeon, on 30 May 2012. Following this examination, Professor Bittar was unable to clearly diagnose Ms Cabraja and arranged for her to have a repeat MRI scan to assess for any current neural compression or other abnormality. The MRI scan demonstrated no significant abnormality in the cervical spine.[47] He noted a scoliotic deformity of her cervical and thoracic spine and thought it was probable that her symptoms were related to the scoliotic deformity.[48] He said her employment was likely to have been a significant contributing factor. He found that she was incapacitated for her pre-injury employment and did not have any realistic capacity for work.[49]
[47]PCB 219
[48]PCB 217
[49]PCB 217
61 Professor Bittar reviewed Ms Cabraja further on 7 June 2016. He diagnosed her as suffering from thoracic intervertebral disc prolapse and aggravation of cervical scoliosis/spondylosis.[50] He found that her employment was a significant contributing factor to her ongoing pain, disability and requirement for treatment.[51] He further reported that there was an organic basis for Ms Cabraja’s pain and that she was suffering from a Chronic Pain Syndrome. He elaborated:
“I do consider that, on the balance of probabilities, her chronic pain syndrome has a physical basis. She sustained an injury to her spine during the course of her workplace activities and this has resulted in chronic pain. As a result of the physical injury to her spine, it is likely that there has been an element of re-organisation of the pain pathways in the spinal cord and/or brain and such re-organisation is most likely contributing to her persistent pain. Her current pain, therefore, does not have a psychological or psychiatric basis, although she does suffer from psychological/psychiatric consequences as a result of her chronic pain syndrome … .”[52]
[50]PCB 222
[51]PCB 222
[52]PCB 225
62 Professor Bittar further considered she remained totally incapacitated for work. He thought this incapacity was permanent, due to her cervical and thoracic spine conditions.[53]
[53]PCB 222
63 Dr Symon McCallum, pain physician, examined Ms Cabraja on 6 May 2016. He reported that Ms Cabraja was suffering from a chronic musculoskeletal injury. The injury, Dr McCallum said, was organic and the cause of Ms Cabraja’s pain. He also found that Ms Cabraja was suffering from a Chronic Pain Syndrome and the physical basis was documented in her history and clinical examinations.[54] Dr McCallum further said Ms Cabraja was not fit for any type of employment, including working as a stock clerk, logistics clerk, dispatch clerk, receptionist or packer, as she had extremely limited sitting and standing tolerance and could not walk for long periods of time.[55] He said that with a chronic muscular injury, all imaging (MRI scans and x-rays) can often be normal.[56]
[54]PCB 241
[55]PCB 241
[56]PCB 241
64 Dr Joseph Slesenger, specialist occupational physician, assessed Ms Cabraja on 2 May 2016. Ms Cabraja complained that she had little improvement in her symptoms and was suffering ongoing pain in her neck and upper back. She said the neck pain caused her headaches, dizziness and occasional nausea. She complained of difficulty dressing and washing and that she was only able to do light cleaning, laundry and cooking. While she had previously enjoyed attending the gym, she was no longer able to do so. Following physical examination and review of medical reports, Dr Slesenger diagnosed Ms Cabraja as suffering from a Chronic Pain Disorder in her cervical and thoracic spine, left shoulder, and psychological impairment. He noted the consistency of her clinical examinations and objective findings as evidence that there was an organic basis for Ms Cabraja’s symptoms.[57] He further found there was evidence to support a diagnosis of Chronic Pain Syndrome and that this was in part on a physical basis.[58] Dr Slesenger said Ms Cabraja could not return to her pre-injury duties; however, thought she had the capacity for alternate duties with the following restrictions:
[57]PCB 257
[58]PCB 257
· No push/pull/carry/lift over 5 kilograms
· No over shoulder reaching
· No repetitive forward reaching
· Four hours a day, three days a week
· No sustained neck postures.[59]
[59]PCB 258
65 He was concerned as to her ability to attend work on a reliable basis due to the variability of her symptoms and medication side effects.[60] He recommended ongoing review by her general practitioner, hydrotherapy, exercises, physiotherapy and medication. He thought it unlikely that there would be a significant alteration in her prognosis in the foreseeable future.[61]
[60]PCB 258
[61]PCB 259
66 On 9 June 2016, Dr Slesenger produced a supplementary report as to whether Ms Cabraja could carry out employment as outlined in the Recovre Vocation Assessment Report of 31 May 2016. Dr Slesenger said Ms Cabraja would be able to carry out the duties of a stock/logistics clerk, for four hours a day, three days week, if she was not made to stay in one position for an extended period. Similar restrictions applied to the roles of a receiving and dispatch clerk and of a receptionist. However, he continued to express concern as to her reliability to attend work in any of these positions given the unpredictability of her symptoms.[62] He also stated that the position of stock clerk would require Ms Cabraja to remain at a computer desk for 70 to 80 per cent of the day and, as a logistics/general/dispatch clerk, she would need to remain at a computer desk for 90 to 95 per cent of the day. He found that such long periods of sitting in this posture could likely aggravate Ms Cabraja’s neck impairment.[63]
[62]PCB 264
[63]PCB 264
67 Dr Slesenger found she would be unlikely to perform the role of a packer, as the job required lifting weights of up to 9 kilograms.[64]
[64]PCB 264
68 Dr Timothy Entwisle, consultant psychiatrist, reviewed Ms Cabraja on 13 September 2010. Following his initial assessment, he found Ms Cabraja did not present with a psychiatric condition secondary to her physical symptoms and warehouse work.[65] He said, from a psychiatric perspective, Ms Cabraja would be able to return to her pre-injury duties, modified duties or suitable duties.[66]
[65]DCB 29
[66]DCB 29
69 Ms Cabraja was assessed by Dr Entwisle again on 15 October 2012. He formed the opinion that diagnosis was from a Pain Syndrome to a Somatoform Disorder, although still did not believe she was incapable of working.[67]
[67]DCB 35, 36
70 Following further examination of Ms Cabraja on 16 May 2016, Dr Entwisle diagnosed her with a Myofascial Pain Syndrome.[68] He reported that she did not have a psychiatric condition and that her symptoms were explained by pain. From a psychiatric perspective alone, she was capable of undertaking suitable employment.[69] Dr Entwisle confirmed that such suitable employment would include the positions identified in the Recovre Vocational Assessment Report of stock, logistics or dispatch clerk, receptionist or packer.[70]
[68]DCB 40
[69]DCB 41
[70]DCB 42
71 Ultimately, in a supplementary report of 21 November 2016, Dr Entwisle said:
“Dr Young in his report considers that Ms Cabraja’s difficulties in returning to work are not attributed to any organic condition and are explained by factors to do with her personality (rigidity) and her passive approach in dealing with her injury and ‘poor self-efficacy’. This is in line with my assessment of Ms Cabraja who does not suffer from psychiatric condition as such and her failure to progress relates to personality and/or psychosocial factors rather than any work related psychiatric condition.”[71]
[71]DCB 42B
72 To Mr Richard McArthur, orthopaedic surgeon, in a report for the defendant dated 3 September 2012, Ms Cabraja complained of pain in her lower neck on flexion, with stiffness and heaviness in the occiput and the left side of her neck. He found the neck pain to be associated with pain in the upper anterior left chest, axilla, and left arm involving the left elbow and wrist. She had experienced numbness in both hands in the morning which cleared after a few minutes.
73 Ms Cabraja also complained of constant mild mid thoracic pain, exacerbated by activity and breathing. She had weakness in the left leg when standing and intermittent pins and needles in the left foot and toes.[72]
[72]DCB 58
74 Mr McArthur reviewed Ms Cabraja’s medical history and radiology in some detail. He concluded:
“… Ms Cabraja has a somatisation disorder in that she has multiple somatic complaints that cannot be explained by a known medical condition despite extensive investigation. … .”[73]
[73]DCB 62
75 He recommended this diagnosis be confirmed by a psychiatrist.[74] If confirmed, he believed there was no relationship between this disorder and her employment.[75]
[74]DCB 62-63
[75]DCB 65
76 Mr McArthur noted that Dr Ooi and Dr Thomas diagnosed Myofascial Pain Syndrome and, that while this condition was recognised in the fields of musculoskeletal, rehabilitation and pain medicine, it did not hold weight in orthopaedic discipline, where it is regarded as a Neuropsychiatric Disorder. He could therefore not comment on that diagnosis.
77 Mr McArthur said that Ms Cabraja’s scoliosis was not significant, and he did not agree with Dr Peter Andrianakis’ statement that the thoracic scoliosis “can describe the widespread pains … felt by Ms Cabraja while working”. Similarly, he did not agree with Professor Bittar, who attributed Ms Cabraja’s symptoms to the scoliotic deformity of the cervical and thoracic spines and that Ms Cabraja’s employment, in all likelihood, rendered it symptomatic.[76]
[76]DCB 63
78 Mr McArthur opined that:
“The reported scoliosis is minimal and for scoliosis to be the (sic) symptomatic in the thoracic spine the curvature would have to be major and in the realm of a 50° curve. If the scoliosis was responsible for symptoms then one would expect that Ms Cabraja would complain of specific localised pain in the mid-thoracic region which is clearly not the case.”[77]
[77]DCB 64
79 He believed Ms Cabraja, while not having a capacity for pre-injury employment, had the work capacity for an office or secretarial position on a part-time or full-time basis.[78]
[78]DCB 65-66
80 Dr Richard Prytula, consultant psychiatrist, found Ms Cabraja to have a Major Depressive Disorder when he examined her on 15 May 2013.[79] He noted there had been no resolution in determining the cause of Ms Cabraja’s physical pain which gave rise to her depression. He reported that her physical pain and low tolerance to sitting generated her psychiatric symptoms.[80] In his view, Ms Cabraja had a limited work capacity due to her psychiatric state.
[79]DCB 75
[80]DCB 75
81 Dr Malcolm Brown, occupational physician, who examined Ms Cabraja for the defendant, concluded, in his report dated 10 July 2013:
“Ms Cabraja presents with a range of neck, upper back and shoulder symptoms, with radiological evidence of some spinal pathology. I think it is reasonable to say that employment has made some contribution and continues to do so, but there is a significant constitutional aspect present. There may be adverse psychiatric sequelae affecting the physical presentation. I do not believe that she suffers from a seriously debilitating physical condition.”[81]
[81]DCB 93
82 In April 2016, after examining Ms Cabraja and reviewing the radiological material, Dr Brown recorded that she –
“… continues to complain of symptoms in the left shoulder, cervical spine, and upper back, but there has been little radiological evidence of specific pathology in the past. Today’s examination suggests upper back symptoms which are muscular in nature rather than spinal, and possibly some rotator cuff pathology in the left shoulder. She continues to see a psychiatrist and there may well be significant psychiatric overlay.”[82]
[82]DCB 97
83 Dr Brown wrote that Ms Cabraja had the physical capacity for suitable employment but he was unable to comment on her psychiatric fitness for work:
“… She has capacity for work not involving physically strenuous manual work tasks. … .”[83]
[83]DCB 97
84 In June 2016, Dr Brown provided a further opinion, commenting that she may have more recently developed an age-related degenerative change in her left shoulder. He also said she had the physical capacity to do certain clerical jobs on a full-time basis. He did not believe she had the physical capacity for packing work.[84]
[84]DCB 98A
85 In November 2016, after reviewing recent MRI scan of the cervical spine and left shoulder and thoracic spine and a report by Dr Young, Dr Brown wrote that there –
“… appears to be a little bursitis in the left shoulder. … a minor condition, unlikely to be related to her work in 2006, and not causing significant incapacity.”[85]
[85]DCB 98A-98B
86 He maintained his position that there was no evidence of a significant work-related injury.
The Plaintiff’s credibility
87 The plaintiff gave evidence and was extensively cross-examined. There were no major credit issues put to her by Ms Forbes, for the defendant, save for some minor inconsistencies in the histories to the doctors.
88 Ms Cabraja gave evidence in a straightforward manner. I formed the view she was attempting to answer the questions put in cross-examination to the best of her ability. In applications of this nature where it is said a worker suffers a Chronic Pain Syndrome, it is not uncommon that person complains of widespread pain to various parts of the body, to a complete inability to undertake domestic, recreational and work tasks, and often attempts to impress the tribunal with the serious nature of the injuries, notwithstanding only modest underlying pathology. While Ms Cabraja did complain of pain to many areas of her body, I did not detect any exaggeration of her symptoms, nor an attempt to inflate the consequences of her injuries. To the contrary, her evidence in that regard was measured, and she conceded in the course of cross-examination that she thought she could attempt employment for a number of hours per day, on alternative days and duties.
89 Further, she has an impressive work record since coming to Australia and it is to her credit that she has attempted, and mostly completed, a range of courses and programs designed to provide her with skills in other areas in the hope of finding alternative employment. She has also applied for a significant number of jobs in the receptionist and administrative areas. All these matters go to her credit.
90 All in all I found her a reasonable witness giving a fair account of the effect upon her of her injuries and the consequences of those injuries. There is little in the course of her evidence to cause me to doubt the effect upon her social, recreational and employment activities.
Submissions on behalf of the Defendant
91 Ms Forbes referred to Meadows v Lichmore Pty Ltd[86] and to the two-step process said to be required in an application of this nature in order to disentangle the consequences on the one hand arising from physical injury, and on the other from psychological disorder. She said that this was not an application where it could be said that the consequences to the plaintiff had a substantial organic basis. She said there was the need to disentangle the physical from the psychological and then determine whether the consequences of physical injury satisfied the statutory test.
[86][2013] VSCA 201
92 Ms Forbes referred to the plaintiff’s complaints of dizziness, stiffness and a lump in the neck commencing from 2004. She said those symptoms were not work related, and yet persisted through 2006 and beyond 2010 when Ms Cabraja first complained of thoracic spine problems. She said those symptoms had to be disentangled from the mix. She submitted the real issues commenced in 2010 when Ms Cabraja complained not only of neck problems, but of thoracic spinal problems. She said the radiology showed scant underlying pathology and I ought not to accept the opinion of Professor Bittar that the source of the plaintiff’s problems was either the scoliosis in the thoracic spine, or the protrusion at T7-8.
93 In support of her contention that the real problems commenced in 2010, Ms Forbes said that after 2006, Ms Cabraja resumed normal duties as a picker and packer and even undertook additional work as a cleaner. Further, there was no complaint of thoracic pain until 2010.
94 Ms Forbes said that when Ms Cabraja returned to work at the suggestion of Doctors Utthanaphol and Ooi, their reports record she was managing well working three hours per day, three days per week, and in July 2010, Dr Utthanaphol increased her light duties to four hours per day, four days per week. Ms Forbes said she left the care of both these doctors in 2010 because she was not prepared to attempt to continue a return to work on those hours. Dr Ooi emphasised that the plaintiff was convinced there was some serious underlying problem for her pain and would not be persuaded from that view. Dr Ooi noted that she at one point achieved five hours per day working Monday, Wednesday and Friday, and managed that without any problems. All of this, said Ms Forbes, pointed to a significant psychological disorder, and while there was some physical element to her pain and restriction, it was predominantly a psychological condition.
95 Ms Forbes submitted that the diagnosis of the plaintiff’s condition lay within the expertise of the various pain management specialists, in particular Doctors Ooi, Thomas and Young. Their opinions were supported by the orthopaedic surgeon, Mr McArthur.
96 Ms Forbes submitted that when the consequences of injury related to the psychological disorder were disentangled, what was left of the physical injury did not meet the statutory test. She referred to the opinion of Dr Thomas that there was little to be seen on radiology across the various scans.
97 Ms Forbes said Ms Cabraja had the capacity to perform a range of occupations undertaking lighter duties, as was set forth in the report of Recovre,[87] and on more extensive hours than Ms Cabraja was prepared to concede.
[87]DCB 99 – 135
98 In the circumstances, she submitted Ms Cabraja’s claim, both as to pain and suffering and economic loss, ought to fail.
Conclusions
99 I accept Ms Cabraja suffered some stiffness in her neck, with dizziness from about 2004 and she was diagnosed with a lump in the neck. I am not satisfied these symptoms were work related. While these issues with her cervical spine continued over the years, in my view, they do not represent any significant impairment or injury, nor in any major sense gave rise to consequences and restrictions in relation to her domestic, recreational and work activities.
100 I further accept that from 2006, as a result of her work duties, she developed pain, spreading into her left shoulder and shoulder blade after lifting heavy boxes in her capacity as a picker and packer for Staples. She had a short period away from work, saw a number of doctors and had radiological investigations. These investigations showed little, if any, abnormality. Ms Cabraja complained in her affidavits of ongoing pain in her neck from that time. However, there are no medical reports from doctors who treated her over that period to confirm those complaints and, in any event, Ms Cabraja returned to full-time normal duties. Further, she undertook additional cleaning work from time to time.
101 I am satisfied that the suffered some soft-tissue injury to her neck around 2006 but am not satisfied the consequences from then were of any particular significance.
102 The real issue, in my view, arose in 2009 and 2010. A new system for picking and packing was introduced in 2009 and, in particular, she was sent to the “country dispatch” area of Staples, where she was required to lift items of 15 kilograms and more on a very regular basis. I accept her evidence that her neck pain increased and in addition, she developed pain in the thoracic spine which became the most prominent of her issues. I accept that in May 2010, the pain in her thoracic spine increased, and she woke one day to find weakness in her left arm. These problems led her to seek regular medical treatment, physiotherapy and an increase in medication. Her complaints of pain are confirmed in the report of Dr Utthanaphol.[88] Initially, it was thought she had suffered some left shoulder injury, but investigations revealed no abnormality. Dr Utthanaphol thought she had suffered a musculoskeletal problem which had been aggravated by her work duties. Although she returned to work on reduced hours and doing light duties for periods in 2010, she never returned to full duties thereafter, although a return to work program was planned in 2011.
[88]PCB 87
103 Such was the significance of her problems at that time, Dr Utthanaphol referred her to a pain specialist, Dr Ooi, who then referred her to Dr Clayton Thomas. I accept Ms Cabraja’s explanation that she left the care of Dr Utthanaphol, as Dr Utthanaphol was not prepared to undertake WorkCover cases.
104 I accept the submission of Ms Forbes that, by and large, the diagnosis and assessment of Ms Cabraja’s injuries lies more within the realm of the various pain specialists by whom she was treated, rather than with the neuro or orthopaedic surgeons, and the occupational physicians. I do not accept the opinion of Professor Bittar that the genesis of Ms Cabraja’s problems lies in the disc prolapse in the thoracic spine, and an aggravation of cervical or thoracic scoliosis, although in his final report, he thought Ms Cabraja was suffering a Chronic Pain Syndrome, which had a physical genesis. All in all, I prefer the opinions of the various pain specialists. I do not accept the opinion of Dr Brown. He is the only practitioner to come to the view that her injury was not work related.
105 At an early stage, Dr Ooi diagnosed a Myofascial Pain Syndrome which she said caused muscle tenderness and involved muscle spasm, an objective examination finding. She said that this injury was consistent with Ms Cabraja’s repetitive work duties. I further accept her opinion that the Syndrome was exacerbated by Ms Cabraja’s anxiety and a fixed belief that there was a more substantial underlying cause of her pain than was evident from radiology. That opinion was confirmed by Dr Clayton Thomas, when he assessed Ms Cabraja in 2010. He was not satisfied that the anomaly at T7 was of any significance. He thought she had some work capacity.
106 I was also impressed by the opinion of Dr Young, the current treating pain specialist. His report of October 2016 is extensive and particularly informed, given he has treated Ms Cabraja over a number of years. Although he noted she was not particularly responsive to the pain management program undertaken in 2013, he accepted that she had non-specific chronic musculoskeletal, cervical and thoracic pain, and prescribed a range of medication. He described her condition as a Chronic Pain Syndrome. It is clear from his report that that Syndrome had a physical basis, probably musculoskeletal in nature. He accepted that there were psychological factors involved, including “a rigid, passive approach and poor self-efficacy”.[89] He did not consider the Syndrome had a psychiatric basis.
[89]PCB 173
107 In terms of her employment, he thought she had a capacity to return to lighter duties within limits, commencing two hours per day, three days per week, with a gradual build-up of hours. He had little doubt there was a causal link between her work duties and the Chronic Pain Syndrome.
108 It was put by Ms Forbes that Ms Cabraja left the treatment of Doctors Utthanaphol and Ooi as they suggested a return to work. However, I was impressed by Ms Cabraja’s attempts to expand her skills through various courses and accept her evidence that she would love to return to work. As the Chronic Pain Syndrome has progressed, I do not doubt she has become disheartened by the presence of constant pain. She has sought opinions from a range of doctors, not because she has rejected any suggestion of a return to work, but rather she is genuinely attempting to find some resolution to the ongoing pain.
109 The views of Doctors Ooi, Young and Thomas are confirmed by the consultant pain practitioner, Dr McCallum. His impression was that Ms Cabraja had a chronic musculoskeletal injury with depression and anxiety. He said there was an organic cause for her chronic pain, with possible central sensitisation. He also diagnosed a Chronic Pain Syndrome which had a physical basis. He said there was an element of anxiety and depression which led her to perceive a greater level of pain and disability. He said that the Pain Syndrome did not have a psychiatric basis. He did not accept that the minor abnormalities on the MRI scans of the thoracic spine were a source of her pain.
110 The occupational physician, Dr Slesenger, also concluded that Ms Cabraja was suffering a Chronic Pain Syndrome which had a physical basis, at least in part. He thought she had the capacity to work four hours per day, three days per week in areas such as a stock clerk, logistics clerk and receptionist.
111 From the tenor of the reports of both Dr Ooi and Dr Clayton Thomas, I am satisfied that their assessment of Ms Cabraja suffering a Myofascial Pain Disorder is that it has a physical basis. It is a non-specific muscular disorder which cannot be easily assessed by reference to radiology, but Dr Ooi noted muscular spasm and musculoskeletal pain, all of which point to a physical disorder.
112 I see no difference between the diagnoses on the one hand of a Myofascial Pain Disorder, and a Chronic Pain Syndrome or Disorder. They are both non-specific Pain Disorders which, according to all of the practitioners to which I have referred, have a physical basis. I am satisfied Ms Cabraja suffers a Pain Disorder which is chronic, work related and debilitating. However, I am also satisfied that the Major Depressive Disorder, or Adjustment Disorder from which she suffers, also creates a range of symptoms as referred to by her treating psychiatrist, Dr Rigby, and which affect her perception of pain. These symptoms also, to some extent, restrict her recreational, domestic and social duties and pastimes and influence her capacity to undertake work. In those circumstances, there is a disentangling exercise to be undertaken, setting aside those symptoms and consequences which arise from her Psychological Disorder, from, on the other hand, those which arise from her physically-based Chronic Pain Syndrome. I understand the principles established by Meadows v Lichmore Pty Ltd[90] as not requiring a disentangling exercise to be undertaken only in cases where there is a clear and overwhelming physical basis for the consequences of injury. This is not such a case.
[90]Supra
113 I accept Ms Cabraja’s evidence that she has constant pain in her thoracic spine, and, to a lesser extent, cervical spine. From the medical opinions to which I have referred, this has a physical basis. I accept this restricts her ability to sit and stand for longer periods. I accept her evidence that the pain is such that she found it difficult to cope with the diploma in information technology because of the requirement to sit for lengthy periods. I accept the pain affects her ability to get a good night’s sleep. I accept her driving is restricted to shorter distances and that the heavier domestic household duties are beyond her. I accept that her inactivity caused by pain has led to an increase in her weight. She attends both her general practitioner and pain management specialist regularly and is prescribed a range of pain-relieving medication. Although the various CT and MRI scans show no significant abnormality, that is not to say the pain is not significant, and has a physical basis.
114 I accept the opinions of Doctors Ooi, Thomas, McCallum and, in particular, Dr Young.
115 I set aside the various psychological symptoms and the effects of the Psychological Disorder in relation to her perception of pain. These are detailed in the reports of the various psychiatric practitioners, in particular Dr Rigby. I accept she suffers Depression, impaired concentration and memory, fatigue and impaired motivation. I accept she has become despairing at her inability to work or contribute in her home. I accept the opinion of Dr Rigby that, to some extent, her depression causes a worsening or increased perception of pain.[91] I set aside all of these symptoms in determining the consequences from the physical injury alone.
[91]PCB 145
116 In relation to pain and suffering, I am satisfied the symptoms to which I have referred meet the “very considerable” test the legislation prescribes.
117 I accept that Ms Cabraja does have some work capacity, although it is limited. I accept the opinion of Dr Young[92] that while she cannot return to her previous employment, she has the capacity for alternative duties within certain restrictions, commencing at two hours per day, three days per week. These duties could be increased, depending on her response to a return to work plan. Even with the prospect of some improvement, I am satisfied that her loss of earning capacity exceeds 40 per cent as a result of her physical injury, and significantly so. I am satisfied her condition is permanent, that is, will remain for the foreseeable future. There is no practitioner suggesting there will be any significant improvement.
[92]PCB 174
118 In all these circumstances, Ms Cabraja meets the statutory test in respect of both pain and suffering, and loss of earning capacity.
119 I shall make consequent orders.
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