Chen v Victorian WorkCover Authority
[2018] VCC 907
•9 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01598
| YAN CHEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2018 | |
DATE OF JUDGMENT: | 9 May 2018 | |
CASE MAY BE CITED AS: | Chen v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 907 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Linfox Transport (Aust) Pty Ltd v Toohey [2004] VSCA 233; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; The Herald & Weekly Times Limited & Victorian WorkCover Authority v Jessop [2014] VSCA 292
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P D Elliot QC with Mr E Makowski | Adviceline Injury Lawyers |
| For the Defendant | Mr A Magee QC with Ms F Crock | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Gibson Importing Company (“the employer”) from 2010 to 2014 (“the said period”).
2 The application is brought pursuant to s134AB(37)(a) of the Act. The relevant body function is the lumbar spine.
3 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded prior to the date of hearing.[1]
[1]Transcript (“T”) 4
4 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 In this application where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
11 The plaintiff relied upon three affidavits. She was cross examined. Her English teacher, Miranda Turner, swore an affidavit on 18 October 2017. In addition, both parties relied on medical reports, and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged forty-nine, having been born in March 1969 in China. She is currently separated and has a nineteen-year-old son.
13 The plaintiff completed secondary school in China and thereafter obtained a Diploma in Library Management. From 1989 until 1992, she worked as a library assistant and then, for the next four years, she worked as a reference librarian. From 1996 until 1998, she worked in an office as a secretary. She had a lot of experience working in libraries doing research, and working in an office whilst in China.[4]
[4]T25
14 In 1998, the plaintiff moved from China to New Zealand, where she worked on a casual basis in a Chinese restaurant. She was a waitress on a yum cha trolley, so she did not need much English in that job.[5]
[5]T24
15 The plaintiff migrated to Australia in 2003. In July that year, she started working for the employer as a full-time picker and packer. Her work was heavy and repetitive, involving a lot of lifting, stacking and handling of boxes containing gift items.
16 In the first four or five years of this job, the plaintiff worked as a packer and then also did picking. She often worked all day or multiple days doing just picking or packing.
17 The plaintiff developed soreness in her back in about 2010 associated with the repetitive lifting and manual handling in her job. On a couple of occasions during that year, she saw her local doctor, Dr Mirhom, who prescribed Brufen. The pain settled with medication.[6]
[6]T27
18 The plaintiff could recall speaking to a supervisor and saying she was not feeling comfortable and had a pain in her back. She was told to keep working as it was a Friday and the pain should settle over the weekend. The plaintiff ended up having a day off on the Monday before returning to normal work.
19 In 2012, the plaintiff’s condition became much worse with the commencement of pain down her right leg as well as a feeling of heaviness in her back. She felt sore and exhausted. She sometimes tried to rest at work and remembered other workers telling her she was walking differently.
20 The plaintiff decided to undergo training in childcare in 2012, as she was having difficulty at work with her back. She completed a Certificate III in Children’s Services in October 2012. She disagreed she had reduced her days partly because of her study and also because her father was ill. It was more like the job had caused her a lot of pain. She confirmed that was her reason for reducing her hours.[7]
[7]T26
21 In 2012, when the plaintiff reduced to four days’ work, she felt aching and pain all the time, and “it was one of the darkest periods of [her] life, because every day [she] simply had to suffer this ache, every moment of [her] life”. She had hoped childcare would be a lighter alternative, where she could sit down instead of standing all day.[8]
[8]T49
22 As part of the course, the plaintiff also undertook a placement at a childcare centre one day a week. However, she found that difficult because of her back pain, especially because the role involved bending down to pick up toys and doing cleaning. The children were active and she was required to do a range of jobs.[9]
[9]T49
23 The plaintiff saw Dr Nguyen at Seaview Medical Centre in September/October 2012. He thought her problem was caused by an injury to her right leg, and arranged for her to have scans of her pelvis and leg, which did not show anything.
24 The plaintiff attended Dr Mirhom in November 2012, complaining of pain in the right buttock, thigh and leg from lifting at work. He prescribed medication. She saw him again the following month and he arranged a lumbar CT scan, which she was told showed injuries in her discs and a prolapse.
25 The plaintiff submitted a WorkCover claim in January 2013, which was accepted.
26 The plaintiff ultimately was referred to Mr Lo, neurosurgeon, who initially suggested conservative treatment when she saw him in April 2013. She did not need an interpreter when seeing Mr Lo, because he could speak Cantonese, which was one of the reasons why she chose him as her surgeon.[10]
[10]T34
27 Later that month, the plaintiff was referred to Mr O’Brien, neurosurgeon, who administered a CT injection into her low back. This did not help with her condition and she then had a few sessions of physiotherapy.
28 In about mid-2013, the plaintiff travelled to China and received further opinion about her back, and surgery was suggested.
29 In June 2013, when she returned to Australia, the plaintiff went back to Mr Lo, who arranged further investigations and recommended surgery. Funding was approved for a single-level fusion and laminectomy at L4-5, which the plaintiff underwent on 14 April 2014 (“the first operation”). Thereafter, she had physiotherapy.
30 The plaintiff did not believe the first operation was successful and thereafter she continued to have leg and back pain. She had further investigations in the second half of 2014, which apparently showed the surgical cage had “backed out” and there was ongoing compression of nerve roots in her lumbar spine.
31 The plaintiff attended four other neurosurgeons for advice in 2015 as she was disappointed with the outcome of the first operation.
32 The plaintiff worked on light duties from January 2013 until ceasing work to have the first operation. Her employment was terminated in June 2014 on the basis she was not fit to return to pre-injury duties and there were no suitable light duties for her. She then commenced receipt of WorkCover payments at the total incapacity rate.
33 In early 2015, the plaintiff offered to do some food delivery on a voluntary basis for elderly people but was told that activity was not suitable for her because of her back injury.
34 In early 2016, WorkCover terminated the plaintiff’s entitlement to weekly payments on the basis she did not have “no current work capacity”. She applied for some part-time jobs in sales, as a massage attendant, a kitchenhand, a childcare worker and an office job at a Chinese company, but these applications were unsuccessful. She did not think she had the capacity to perform those roles, but at times had so little money she just felt like she would give it a go.
35 After obtaining a real estate licence in early 2017, the plaintiff did some voluntary work for a local real estate agent, working seven to eight hours a week dealing only with Chinese speaking clients. She did not sell any houses and was paid no commission. She was not really capable of such work due to the walking and driving requirements, amongst other things.
36 The plaintiff identified a certificate she had obtained through Australian Salesmasters Training Co which she described as a licence. The training went for about two months in Elizabeth Street in Melbourne, before the second operation.[11]
[11]T19, T20
37 The plaintiff thought the licence allowed her to sell property for five years.[12] She completed the English component of the course on a computer with her son’s assistance.[13]
[12]T29
[13]T31
38 The real estate course went for just one weekend – one or two days. There were twenty people in a group who answered questions together. The plaintiff was advised that once she had the certificate she could sell property. However, she did not think she could work in that field because she did not think her personality was suited to sales.[14]
[14]T44
39 If the plaintiff made a sale, she would have received commission of one per cent. There was no salary. She was given the area of Tarneit and Point Cook. She travelled there by train where she and others were collected by a company representative who drove them around the area and showed them local landmarks. If she found a prospective buyer, the plaintiff was supposed to take them to the company’s city office for a sales seminar to engage with a real estate agent. She never brought anyone in, and did not earn any money. She stopped doing this work as she did not think she was suited to it, because her personality was not suited to sales, and she felt it very difficult to engage.[15]
[15]T47
40 In September 2016, the plaintiff was referred by Dr Mirhom to Mr Paul D’Urso, neurosurgeon. He undertook investigations and sought funding from WorkCover for further surgery.[16]
[16]T34; Mr D’Urso was introduced to the plaintiff by her solicitor
41 On 8 March 2017, Mr D’Urso performed revision surgery on the plaintiff’s back comprising microdiscectomy at L4-5, including L3-5 spinal fusion (“the second operation”).
42 Following five days in hospital, the plaintiff was discharged and underwent hydrotherapy and took Endone, Celebrex and Panadeine Forte. X-rays taken on 18 April 2017 reportedly showed a 7-millimetre slip at L3-4 and a 3-millimetre slip at L4-5. Further, the plaintiff’s left leg was shorter than the right post surgery and she was provided with an insole to sit in her left shoe.
43 In August 2017, the plaintiff asked Centrelink to help her find a job. She was referred to a job seeking agency, Direct Recruitment, who advised that she was unsuited to any positions and unlikely to be able to find any job. Accordingly, Centrelink advised the plaintiff she was not required to look for work and referred her to meet with disability and support services.
44 The plaintiff would like to get back to work and Dr Mirhom supported her wish. She had been advised by Mr D’Urso of permanent restrictions. She thought, in addition to her physical problems, limited English and transferable skills, poor typing and limited computer skills, it might be unrealistic that she would find meaningful and suitable employment in the future.
45 Any employment would not only need to be flexible enough to cater for the plaintiff’s restrictions, but also her inevitable unreliability on account of her back injury and the severe unexpected flare ups she experiences. She would require an overly sympathetic employer but, realistically, she did not have much to offer such an employer to be interested in her.
46 In her October 2017 affidavit, the plaintiff confirmed her ongoing pain. She continued to experience constant low back pain and pain radiating into her right buttock and down her right leg.
47 The second operation had helped with the plaintiff’s posture but she had continuing radiating pain which she rated at two to three out of ten at rest, six to seven and even eight when more active. At her lower levels, it was a dull ache and higher, stabbing sharp or shooting pain.
48 After the second operation, the plaintiff was able to walk further before her pain increased set in, but she continued to experience an increase in pain when she walked up and down stairs. Even simple activities around the house provoked flare ups in her pain. Her sleep continued to be negatively affected, making her tired and groggy during the day.
49 Even though the plaintiff was taking Endone, Celebrex and Panadol following the second operation whilst recovering, it made her feel dizzy, so she progressed to doing her best to live with pain and manage without medication other than the occasional Panadol when the pain was unbearable. She continued hydrotherapy as well as Tai Chi.
50 The plaintiff had assistance with household tasks from her son. She was able to do most of the cooking but tried to make simple, less time consuming meals. She could use a top loader washing machine, ensuring the loads were light. She could dress without assistance, but bending to put on her clothes provoked a flare up in back pain.
51 The plaintiff was able to drive but was confined to mostly local areas. She agreed she can drive for about half an hour, from home.[17] Her level of her back pain increased when seated for more than 50 minutes. She had problems with her social and recreational activities, including walking. She no longer played bridge or table tennis, and her back condition put her off further travel.
[17]T42
52 In her 15 March 2018 affidavit, the plaintiff confirmed that nothing much had changed with her back condition.
53 The plaintiff has difficulty sitting for long periods of time, as her lower back is very sore.[18] Whilst giving evidence, at times she stood and leaned on the side of the witnessbox.[19]
[18]T50
[19]T35
54 As required by Centrelink, the plaintiff had applied for various part-time jobs as a receptionist, office worker and in sales. Most of the job advertisements were online and in the newspaper and she had applied through email or SEEK. She had not disclosed her back injury in any of these applications as she knew no one would hire her if they knew about it.
55 The plaintiff had only been offered one interview and that was with a Chinese company taking orders for candles over the phone and working three days from 10.00am to 5.00pm. She was offered the job but the employer was only willing to pay her cash illegally of $14 per hour, so she was forced to decline as she did not want to do the wrong thing and be dishonest whilst in receipt of Centrelink benefits. She was unsure if her back pain would have enabled her to do that job but she was willing to try. She agreed if she had been paid legally she would have taken the job.[20]
[20]T41
56 The plaintiff was taken through a list of applications she had made for full-time jobs. She could remember some of them but could not remember if they were full time.[21] When it was suggested she felt capable of doing those jobs because of her experience and the courses she had undertaken, the plaintiff said she believed she had the experience, so it was more likely she would be given a chance to go for an interview.[22]
[21]T44
[22]T44
57 The plaintiff probably applied for ten jobs a fortnight as required by Centrelink. She never got an interview. She did not think she could work full time. It would be too difficult.[23]
[23]T48
58 The plaintiff presently has no source of income as Centrelink payments ceased after six months because she is a New Zealand citizen.[24]
[24]T16
59 The plaintiff agreed she had a number of the skills required for the recently suggested role of property consultant. Whilst her Mandarin was very good, her Cantonese was not. With training and support she could apply for that position but she did not know how well she could perform.[25]
[25]T45
60 The plaintiff went for a job the previous week with a company that exports dairy products to China. They needed someone in an administrative role, but they did not believe she was suitable for the job.[26]
[26]T17
61 The plaintiff continues to undertake English classes from 9.00am to midday on Monday each week at Sandy Beach Centre in Mentone (“the Centre”). The classes cost $140 per 12-week term. She had been paying in full until November last year. Since then, the plaintiff has been performing voluntary childcare at the same centre from 9.00am to midday on Thursdays. Her fees for English classes were reduced because she took this role. With the assistance of other workers, the plaintiff looks after babies and children aged to four or five by arranging Play-Doh, setting out drinks, supervising in the playground and packing up their toys.[27]
[27]T15
62 Although the plaintiff is able to perform most tasks sitting down, she can stand up and move about to stay comfortable. Also, she is not required to pick up or carry the children. She squats if she needs to pick up things from the floor. She experiences nagging back pain throughout her time there, and by the end of three hours, she feels exhausted, and her back is so sore she is glad to be finishing. Afterwards, she needs to go straight home and all she wants to do is sleep and rest as her back pain makes her feel very tired.[28]
[28]T50
63 The plaintiff has been advised if she is able to volunteer for at least six months, the fees will be waived entirely. Her current English study is ESL Intermediate. She studies because she is very bored at home. The course basically emphasises conversational English.[29]
[29]T33
64 The plaintiff last saw Mr D’Urso in early March. Whilst he explained that her recovery had been good, the “metal” needed to stay in her back long term, and he advised her she would most likely continue to experience the same back pain, restrictions and incapacity in the future.
65 The plaintiff continues to attend Dr Mirhom. She does her best to live with back pain without being overly reliant on unhealthy medication. She takes the occasional Panadeine Forte once every two or three weeks, and occasional Endone on a similar basis. She agreed her current medication does not affect her ability to work or drive.[30]
[30]T46
66 The plaintiff remains frustrated by the limitations and restrictions imposed by her back injury. Once or twice a month she plays the pokies at the local hotel out of boredom and as an escape from her reality.
67 The plaintiff was cross-examined extensively about her English skills. She confirmed she completed the Claim Form and Impairment Benefit Claim Form herself.[31] She was able to communicate with her general practitioner, and also with co‑workers whilst with the employer. She sometimes needed help working off packing lists.[32] With training, she could enter data.[33] There were a number of Chinese co‑workers with the employer, although it was an Australian company.[34]
[31]T22
[32]T23
[33]T24
[34]T50
68 The plaintiff confirmed she had not have the assistance of an interpreter at a number of medical examinations and when swearing her first affidavit.[35]
[35]T35
69 The plaintiff was cross-examined at length about the impairment assessment letter she wrote to the Conciliation Service in 2015. It took her roughly a week to complete the document, with heavy reliance on the dictionary on a computer in Mandarin.[36] She agreed she had to go through the correspondence from WorkCover, and then she responded to it in a very careful and measured way.[37]
[36]T20
[37]T37
70 The plaintiff agreed because of her experience as a library researcher she could use those skills to research legal concepts, and did so in that letter.[38]
[38]T38
71 When it was suggested she had quite a high comprehension of English in written form, the plaintiff said she did not have a high understanding. She always feels her English is rather poor. That letter was completed with the assistance of a dictionary and she did not understand a lot of terminology referred to in it. “Because it happened on her”, she did not think it was complex.[39]
[39]T39
72 When it was suggested to the plaintiff that she had understated her understanding of written English to doctors, she said she had always been very honest. She sought the assistance of the dictionary to help her complete the letter, otherwise she would not have been able to do it. She copied a lot of the content from what she had researched.[40]
[40]T39
73 The plaintiff completed an introduction to bookkeeping course in 2014 which did not involve much English.[41] She did an introduction to medical reception course which was in English. She also did Level 2 in office skills education, which included two levels of computer study, the first being an introduction to computers, internet and email, word-processing spreadsheets, and a range of other activities including branding, which she thought meant making business cards.[42] She completed Level I in September 2014 and Level II in January 2015.[43]
[41]T27
[42]T28
[43]T28
Wage details
74 Working with the employer, the plaintiff’s earnings were as follows:
Financial Year Gross Income 2009 $33,731 2010 $35,330 2011 $35,900 2012 $36,641 2013 $30,499 2014 $25,637 *As at 2012, the plaintiff started to take increasing periods of time off work due to her injury. Her employment was terminated on 14 April 2014.
75 On the Worker’s Injury Claim Form signed by the plaintiff on 8 January 2013, her usual pre-tax hourly rate was $20.10 and her usual pre-tax earnings were $562.86.
76 The Employer Injury Claim Report dated January 2013 confirmed these wage details and that the plaintiff worked twenty-eight hours a week pre injury and her usual working hours were 8.00am to 4.00pm Monday to Thursday.
77 The wage records of co-worker, Laraine Rooff, indicated she earned $51,104 in 2012-2013, inclusive of sick leave and annual leave. Excluding these amounts, she earned $44,465. Sixty per cent thereof is $26,679 or $513 per week.
Lay evidence
78 Miranda Turner, the plaintiff’s English teacher at the Centre, swore an affidavit on 18 October 2017.
79 Ms Turner first met the plaintiff at the beginning of that year. The plaintiff is one of about ten students in the Monday class and has been attending each semester for three hours every week. She also studied English at the Centre in 2016.
80 The plaintiff can communicate reasonably well in English and on a one to one basis. However, when interacting with a group, she struggles a lot more. Her English language skills are reasonable for basic daily interactions, but she still frequently confuses her sentence structure and at times, is unable to identify the correct English word to use.
81 If the plaintiff is required to work in a situation where she has to communicate with people in English as the interface of a company, she would struggle to do this to a level that would be considered competent. Her English language skills are not at a level where Ms Turner imagined the plaintiff could competently work as a receptionist or primary point of contact for a company.
82 Ms Turner understood the plaintiff studied English at high school and had been in Australia for eighteen years, maintaining daily interactions in an English speaking country. She had also been studying English at the Centre for almost two years. On the basis of the plaintiff’s progress to date, Ms Turner thought it unrealistic to expect that, in the foreseeable future, her English language skills would improve to a point where she could be the public interface for a company maintaining professional communications in English.
Medical evidence regarding work capacity
83 When considering the plaintiff’s current work capacity, medical opinion post-dating the second operation in March 2017 is relevant.
84 The plaintiff’s general practitioner, Dr Mirhom, last reported in February 2018.
85 Dr Mirhom noted that after the second operation, the plaintiff was still in pain and could not sit for more than thirty minutes, could not walk for more than fifteen minutes, and could not do any repetitive forward flexion. With the plaintiff’s language barrier, at that stage, and for the foreseeable future, he considered, until she stabilised, she had no employment capacity.
86 Dr Mirhom thought the plaintiff could not lift more than 5 kilograms repetitively and could not flex forward. Heavy lifting and forward flexion were permanent restrictions. Sitting and walking would need to be re-assessed after stabilisation, but definitely would not improve much in the foreseeable future.
87 Dr Mirhom recently certified the plaintiff as not having a current work capacity.
88 The plaintiff’s neurosurgeon, Mr D’Urso, who performed the second operation, most recently reported in March 2018.
89 Mr D’Urso noted the March 2018 CT scan showed the surgical instrumentation remained in a satisfactory position. He discussed with the plaintiff the option of removing instrumentation should her symptoms persist, and recommended a further CT scan in September 2018.
90 Mr D’Urso considered the plaintiff will have a permanent incapacity of at least a partial nature. This will prevent her from performing prolonged sitting, standing or walking in excess of thirty minutes. He thought she does have the capacity to lift weights of approximately 5 kilograms, but this should not be on a repetitive basis. She does not have the capacity to twist. She does not have the capacity to perform deep, prolonged or repetitive bending – restrictions of a permanent nature into the foreseeable future.
91 With appropriate vocational retraining and assistance, Mr D’Urso thought light part-time employment up to twenty hours a week may be possible in the future. He expected such employment would be best performed on intermittent days.
92 Mr D’Urso concluded the plaintiff remains chronically incapacitated with a spinal condition which appears to have been precipitated by the workplace injury. Her condition appears to have now stabilised and she will have a permanent incapacity of a partial nature. He thought she may have some capacity for part-time light employment, but this would need to be within restrictions he suggested.
Medico-legal evidence
93 Mr Kossmann re-examined the plaintiff in October 2017, having earlier seen her in March 2016.
94 Mr Kossmann then remained of the opinion the plaintiff has no work capacity for the foreseeable future due to the injuries she sustained while with the employer. He did not expect her condition to improve and thought there was a possibility it may deteriorate in the months and years to come.
95 Mr Kossmann came to this conclusion, having specifically addressed the roles identified by WorkCover of hand packer, credit/stock clerk, receptionist, entry level roles only, and library assistant.
96 Mr Kossmann thought the plaintiff should not walk long distances, walk on uneven ground, walk upstairs, downstairs, inclines, declines, climb up and down ladders, kneel, squat or carry heavy items weighing more 2 to 5 kilograms.
97 Mr Kossmann considered the plaintiff has a limited skills set and is not able to speak the English language, therefore he regarded her as 100 per cent incapacitated and not able to work in the above identified suitable positions of employment, a situation that would continue for the foreseeable future.
98 Occupational physician, Dr David Middleton, last examined the plaintiff in March 2018, having previously seen her in September 2017.
99 Dr Middleton concluded the plaintiff still no longer has the safe physical capacity to perform pre-injury duties or any work that she has done in the past, all reliant on safe and excellent physical capacity. She is now restricted to sedentary non-manual work.
100 Dr Middleton considered all duties to be performed by the plaintiff need to be undertaken in a self-paced manner where manual handling activities need to be below mid chest and above mid thigh, preferably at waist height, and avoid repetitive prolonged or forceful activities. He thought a maximum effective weight or force to be applied should be limited to 5 kilograms on an occasional basis, with 3 kilograms on an intermittent basis.
101 Further noting the plaintiff occasionally uses Endone and Panadeine Forte, Dr Middleton thought that when pain required such medication, she should avoid operating machinery.
102 In Dr Middleton’s view, the plaintiff no longer has the safe and reliable physical capacity to work full time and that any consideration to undertake a return to work will need the provision of a graduated return to work plan, commencing two to three hours on any one day, two to three non-consecutive days in any one week. Those hours would need to be carefully monitored by her treating doctors, including Mr D’Urso, and adjusted in accordance with ensuring her symptoms and pain remain manageable and do not impact on her non-work time.
103 Noting there has been no significant recovery or benefit from ongoing conservative and more recent spinal surgery, Dr Middleton thought at best the plaintiff could attend work up to twelve hours per week shift, divided between three to four hours a day.
104 Dr Middleton described the plaintiff as fluent in English and Cantonese but she had significant limits in her reading, writing and spelling skills. The most basic English required assistance from the interpreter, and she expressed her own lack of confidence in not only speaking English but, in particular, reading, writing and spelling. He thought this lack of proficiency would impact on the plaintiff’s ability to apply her computer skills from China in the Mandarin language to translate this into operating in the English language, despite having completed Level II of a skills course.
105 Dr Middleton thought the suggested role of production clerk, of which the plaintiff had no prior work experience, did not constitute suitable employment.
106 Dr Middleton noted that on discussing the real estate job with the plaintiff, it was clear she simply did not have the accurate or reliable skills required and that the physical requirements of that role, be it in sales or property management, would clearly exceed her safe and reliable physical capacity and, therefore, did not represent suitable employment under the Act.
107 Dr Middleton commented on Mr D’Urso’s view that the plaintiff may have a capacity in the future for up to twenty hours a week on non-consecutive days with a range of restrictions. Dr Middleton stated it was important to note that Mr D’Urso’s restrictions related to the physical requirements of a vocational role and do not take into account the other facts when addressing all aspects of the definition of suitable employment, current work capacity and no current work capacity.
108 Dr Middleton agreed with Mr D’Urso’s restrictions, but noted that the sitting, standing and walking activities had not been fully qualified, whereas in his assessment, the plaintiff has good and bad days, which are reflected in her sitting, standing and working endurances, and that weights below 5 kilograms need to be restricted to avoid aggravation where, in his opinion, weights above 5 kilograms should be avoided, weights up to 5 kilograms limited to occasional lift, and weights limited to 3 kilograms on an intermittent basis. He believed the absolute restrictions of twisting and deep prolonged or repetitive bending significantly impact on the plaintiff’s safe and reliable physical capacity.
109 Dr Middleton agreed with Mr D’Urso that any work needed to be performed on non-consecutive days and the estimate of a twenty-hour week would need to be carefully monitored by the plaintiff’s treaters to ensure that work does not impinge on her non work time. His estimate, at best, was that she could attend work up to twelve hours a week.
110 Dr Middleton concluded the plaintiff is permanently incapacitated for any type of employment with a minimal physical/manual component. Theoretically, she does have some capacity to perform sedentary work, having to take into account her incapacity, age, language, education, place of residence, skills and work experience and, in particular, very limited reading, writing and spelling capacity, her ability to procure and maintain such employment is likely to be negligible noting, at best, in his opinion, attendance at work will be limited to alternate days and a maximum of twelve hours a week, and that a new employer would be required to support a graduated return to work plan.
111 Dr Middleton commented that the affidavit of the plaintiff’s English teacher, Ms Turner, clearly indicated the plaintiff’s English skills
112 Dr Middleton provided a supplementary report during the hearing, commenting on the most recent job suggested to Recovre of a property consultant. Given the plaintiff’s limited English skills and her physical restrictions, he did not consider she was able to perform the duties involved in this role.
Vocational evidence
113 Katherine Rintoule, from Flexi Personnel, tested the plaintiff’s literacy and verbal English skills, together with maths and computer skills on 28 August 2017.
114 The relevant findings were as follows:
(i) Literacy skills (observation, comprehension, spelling, writing). Performance overview score of 88 per cent.
(ii) Verbal English skills. The plaintiff spoke English with an accent. Ms Rintoule was able to verbally communicate with her, and, when asked, the plaintiff understood the directions and instructions that she gave. Ms Rintoule was able to understand the plaintiff when she spoke to her.
(iii) Maths skills. Written: 100 per cent. Online: 80 per cent.
(iv) Computer skills. MS Excel. Performance, 7 out of 20. 35 per cent. Limited knowledge.
(v) MS Word 2010. Performance overview, score 11 out of 20. 55 per cent. Moderate knowledge.
(vi) MS PowerPoint 2010. Performance overview, 7 out of 20. 35 per cent. Limited knowledge.
(vii) MS Outlook 2010. Performance overview, 3 out of 5. 60 per cent. Moderate knowledge.
(viii) Internet Explorer. Performance overview, 25 per cent. Limited knowledge.
(ix) Typing skills. Performance overview, 28 words per minute with 90 per cent accuracy.
115 Ms Rintoule noted that professional typists would type upwards of 65 to 75 words per minute, and the average person’s typing accuracy is 92 per cent. With a clerical or administrative position, a typing speed of at least 50 words per minute and 95 per cent accuracy is required as a minimum typing requirement.
116 Ms Rintoule provided an opinion as to the five roles suggested by Recovre.
117 Ms Rintoule questioned the plaintiff’s ability to navigate a complex system with multiple functions to an acceptable industry standard, given her limited to moderate computer skills. In the role of library assistant, a major component would be sorting and shelving books and maintaining records, and also issuing items to borrowers and providing advice in relation thereto by using an integrated library system or management system, which usually included software databases and different interfaces. She thought that would be a barrier to the plaintiff performing this role.
118 In terms of enquiry clerk, in addition to a detailed understanding of the variety of services that could be accessed, there would be a high level of customer service skills and ability to respond to both written and verbal requests for information in a timely and efficient manner. The plaintiff’s limited to moderate computer skills and below-average typing would impede her ability to perform the inherent requirements to the standard expected.
119 Working as an administration officer in a factory would require at least an intermediate knowledge of MS computer programs, current relevant working experience or qualifications, and a typing speed. Ms Rintoule thought the plaintiff’s limited to moderate computer skills and below average typing would be a barrier to performing that role.
120 Ms Rintoule noted that a stock clerk again was a highly administrative position. The plaintiff’s limited to moderate computer skills would mean her ability to effectively navigate a complex computer system to an acceptable industry standard would be questionable.
121 Ms Rintoule thought, for the same reasons, the plaintiff would not be suitable to work as a receptionist.
The Defendant’s medical evidence
122 Mr Jonathan Hooper, orthopaedic surgeon, last reported in March 2018, having previously seen the plaintiff on a number of occasions.
123 While not commenting specifically on the jobs suggested by Recovre, Mr Hooper thought the plaintiff was unable to return to her pre-injury duties. He considered it unlikely she will ever be able to return to any form of physical activities involving repeated bending or lifting.
124 Mr Hooper noted the plaintiff had returned to part-time work in childcare. She said she was capable of doing this and would continue to do it as long as her employer was happy with her work. She was only working one day a week and he believed she could work five days a week for three to four hours each morning.
125 Mr Hooper did not think any rehabilitation was likely to benefit the plaintiff. He considered that she understood the problem that she has and was learning to cope with it and live with it. In his view, the only factors that may be involved in her management are her cultural background and a relatively poor ability to communicate in English.
126 Dr Yong, occupational physician, examined the plaintiff in 2017 and most recently in March this year.
127 Dr Yong thought the plaintiff has a current capacity for work within the following restrictions: avoiding repeated bending and twisting of the back, repeated firm pushing and pulling tasks and lifting more than 5 kilograms on a repeated basis. She should vary her posture regularly between sitting, standing and walking, and reduce her working hours.
128 In Dr Yong’s view, the plaintiff does not have a current capacity to perform her pre-injury duties. Although there has been some improvement with her condition since its onset, he thought it unlikely that the relaxation of her restrictions would occur to allow her to return to significant manual handling tasks in the future. Therefore, it was unlikely she would be able to return to work in her pre-injury duties.
129 Dr Yong was provided with Recovre’s January 2017 and March 2018 reports, in which the following suitable employment options were identified: hand packer, credit stock clerk, receptionist entry level roles, and library assistant with retraining.
130 Dr Yong thought the hand packer role required individual assessment to determine that it complied with the restrictions he suggested, noting, sometimes in that role there is a requirement to handle goods in excess of the weight restriction. The job identified at a worksite assessment in Dandenong South in this role exceeded the recommended restrictions.
131 Dr Yong thought the credit stock control and receptionist roles were suitable subject to restrictions and reduced hours.
132 Dr Yong thought the library assistant role required individual assessment to determine if it complied with restrictions because of potential lifting and pushing involved.
133 Dr Yong thought the additional roles of production clerk and real estate representative suggested by Recovre, which involved minimal manual handling, would be suitable for the plaintiff.
134 Given the period of time out of the workforce and the recent date of surgery, Dr Yong thought the plaintiff would have a capacity to perform tasks for reduced working hours. His initial recommendation would be to work four-hour shifts three days a week. This could initially increase back to half of the working week over two to three months, and the plaintiff would then need re-assessment to determine the rate of introduction of working hours.
135 Dr Yong concluded, with respect to occupational rehabilitation, the plaintiff would benefit from support to assist her down a redeployment pathway. He noted that subsequent to her last review, she had successfully obtained voluntary work at a childcare centre and she was also undertaking further English. This would allow her to build on her skills to allow her to return to the workforce.
The Defendant’s vocational evidence
136 Robyn Willett and Janette Ash (“the vocational assessors”) provided a vocational report on behalf of Recovre in January 2017, before the second operation.
137 In was reported that on interview, the plaintiff demonstrated a good level of English language skills, albeit with a strong Chinese accent. She reported she was not confident speaking English over the phone. She said she professed proficient English reading skills and computer skills involving Word, Excel, email and internet functions, having recently completed Office Skills Level 2. She reported she used the Chinese language on the smartphone and iPad, but could use English sites.
138 The vocational assessors referred to Dr Mirhom’s report of March 2016 in which he expressed the view that the plaintiff was not fit for pre-injury duties but could be retrained for light duty jobs such as desk jobs, simple computer jobs with flexibility to sit and stand as comfortable, with part-time hours, 20 hours a week, being suitable.[44]
[44]This opinion pre-dates the second operation
139 They noted also that the medical opinions generally supported the notion that on retraining, the following restrictions apply: no lifting more than 5 kilograms, no prolonged standing or sitting, and no bending, twisting, reaching, pushing or pulling.
140 Based on the plaintiff’s education, work history, transferable skills, and based on the opinions that she retained a capacity for suitable employment, the following jobs were identified as suitable for her to consider: hand packer ($841 to $938 gross per week), stock clerk ($1,042 to $1,176 gross per week), receptionist entry-level roles ($850 to $825 gross per week) and library assistant ($943 per week).
141 Worksite assessments were conducted of the hand packer, stock credit clerk and receptionist roles.
142 Recovre provided a supplementary vocational assessment report on 9 March 2018, following interview of the plaintiff. On this occasion, after the second operation, the vocational assessors were provided with the full range of medical reports from both the plaintiff’s treaters and medico-legal examiners.
143 The vocational assessors noted that the plaintiff demonstrated quite proficient English speaking skills, and rarely deferred to the interpreter.
144 On this occasion, in addition to the earlier suggested job options, Recovre also recommended the roles of production clerk which had a salary of $50,000 to $60,000 per annum depending on experience and real estate representative, with an approximate salary of $1,150 to $1,039 gross per week.
145 The vocational assessors carried out a worksite assessment of a machine-operated packer role at a premises in Braeside, and a production clerk in Dandenong South.
146 The wage rates for the jobs suggested by Recovre in its most recent report were as follows – real estate representative, $1,150 gross per week (Job Outlook and Job Markets $1,039 per week); machine operator/packer, a salary between $18.70 and $22.00 per hour, depending on experience, and production clerk, $50,000 to $60,000, depending on experience.
147 Recovre provided a further report on 16 April 2018 following a request from the defendant’s solicitors. Robyn Willett, having searched on SEEK, thought the job of property consultant, Chinese speaker, would be suitable for the plaintiff.
148 An advertisement for that position set out it would involve uncapped commissions, OTE earnings capability exceeding $100,000, a genuine supportive corporate culture and flexible working hours.
149 Counsel for the defendant relied on the following hourly rates for the suggested jobs - credit stock clerk $28.95, receptionist $22.37, production clerk $25.30 to $30.36, real estate representative $27.36 and library assistant $24.73.
Other documentation
150 The plaintiff completed a document, “About my impairment” report, which was received by the Conciliation Service on 6 July 2015. That report set out in some detail the plaintiff’s analysis of correspondence sent to her by Allianz dated 24 June 2015 in relation to her s98 claim.
151 In that correspondence, the plaintiff was advised that liability was accepted for lumbar spine and surgical scarring, but rejected for the thoracic spine, radiculopathy of the right leg, scoliosis and psychiatric condition.
152 The plaintiff was advised liability had been rejected in relation to the claimed radiculopathy of the right leg as this was not a discrete injury and was considered to be a consequence of the accepted back injury. On this point, the author noted the legal definition of an injury from Linfox Transport (Aust) Pty Ltd v Toohey.[45]
[45][2004] VSCA 233
153 In an eight‑page typed document, the plaintiff provided a very detailed analysis of medical and legal matters in response to the matters raised in that correspondence.
Overview
154 Pain and suffering having been conceded, obviously the only issue for determination is whether the plaintiff has suffered the requisite loss of earning capacity.
155 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
156 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
157 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
158 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
159 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
160 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[46]
[46]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
161 After some discussion about whether the earnings of co-worker, Laraine Rooff, were comparable to the plaintiffs[47] and whether the plaintiff’s earnings before she ceased work should be based on 28 or 35 hours per week,[48] the parties agreed the appropriate “without injury” earnings figure was based on the plaintiff’s taxable income of $36,641 in the 2012 financial year, $704 gross per week, 60 per cent of which is $422.40.[49]
[47]T64-65
[48]T84; Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292
[49]T86
162 As counsel for the defendant conceded, no medical practitioner considers the plaintiff has the capacity to work more than 20 hours a week in suitable employment, but noted the plaintiff would have been had been prepared to try 21 hours a week in the candle selling job.[50]
[50]T59
163 The plaintiff’s evidence that despite two operations, she continues to suffer from unremitting lower back pain radiating down her leg, requiring ongoing medication, albeit not of a significant nature now, was not challenged.
164 There is no suggestion that the plaintiff’s condition will improve, and her most recent treating surgeon, Mr D’Urso, has advised her that there may be a need for further surgery in the future to remove the “hardwear”.
Credit
165 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[51]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[51](2010) 31 VR 1 at paragraph [12]
166 There was no real attack on the plaintiff’s credit in this case; however, it was submitted one of the major issues was the plaintiff’s reliability insofar as she reports her capacity to understand and communicate in English and that she had understated that capacity.[52]
[52]T55
167 However, I found the plaintiff to be a credible witness, who made a genuine attempt to answer questions truthfully, and in English when she was able. At times, she clearly misunderstood the question, as her answer indicated, and in my view, there was no attempt to mislead or evade.[53]
[53]T58
168 No doctor thought the plaintiff was exaggerating her condition. She had difficulty at times with prolonged sitting in the witness box and needed to stand or lean against the side of the witness box for support.[54]
[54]T76
169 Whilst there was surveillance undertaken of the plaintiff, no film was shown during the hearing.
170 Ms Turner, the plaintiff’s English teacher, who supported the plaintiff’s description of her difficulties with English conversation, was not cross-examined.
Employment capacity
171 It was submitted on the defendant’s behalf that a number of the jobs suggested by Recovre were suitable for the plaintiff – credit stock clerk, receptionist, production clerk, real estate representative and library assistant, and that working in those roles, she would not suffer the requisite loss of earning capacity, being able to earn in excess of $422.78 per week working 20 hours per week.
172 Whilst the role of property consultant which was recently suggested by Recovre, attracting a salary of $100,000 was not strongly relied upon, it was relied on in the context of a general submission about the type of work the plaintiff could obtain.[55]
[55]T71
173 Counsel for the defendant submitted Recovre’s assessments, which included actual worksite assessments, were a pretty good base to found the proposition that the plaintiff has a capacity to undertake suitable employment.[56]
[56]T63
174 The main thrust of the defendant’s case was that the plaintiff has English language skills such as would enable her to work in the suggested jobs. In summary, it was submitted when one considered the totality of the evidence, the plaintiff had a demonstrated greater capacity to understand English, to read English, and to respond in English, and therefore she has not suffered the requisite loss.
175 It was submitted the plaintiff is obviously an intelligent tertiary-educated woman, and there are a number of examples of her capacity not only to understand but to comprehend and respond in English, which is greater than doctors such as Dr Middleton have been led to understand. Further, the plaintiff has successfully completed a number of courses in the English language.[57]
[57]T55
176 In this regard, reliance was placed heavily on the plaintiff’s ability to complete documents in her own hand, such as the Claim for Compensation and the impairment benefit form.
177 Further, emphasis was placed on the impairment assessment document completed by the plaintiff. She had researched it, prepared it and completed it. It was submitted her research skills were quite extensive to be able to prepare this comprehensive letter, and it indicated a level of comprehension of English with both complex legal and medical issues.[58]
[58]T57
178 Counsel for the defendant also relied on the 88 per cent result on literacy skills test in the Flexi Personnel test, and submitted that that vocational assessor ignored the results of the tests in concluding the plaintiff was incapacitated or unsuitable for the jobs suggested.[59]
[59]T60
179 Further, Dr Middleton’s opinion was criticised on the basis of his focus on the plaintiff’s English language problem, and also his comments about the plaintiff’s difficulties travelling to the suggested jobs.[60]
[60]T73; T74
180 Further, it was submitted it was significant there was no one from the employer who said the plaintiff could not understand instructions or had difficulties with her job.[61]
[61]T62
181 Counsel for the defendant conceded it was a “conundrum” why the plaintiff with her strong English skills and previous work experience in China continued to work in a very low paying factory job whilst in Australia.[62]
[62]T61
182 Counsel for the plaintiff submitted the starting point in this case is to see what the plaintiff has done in the past, prior to the incident in which she was injured.
183 Whilst the plaintiff obtained tertiary skills in China and worked in libraries and research before coming to Australia in 2003, with these skills and some English, she has never pursued employment in those fields since leaving China.
184 It is clear when the plaintiff came to New Zealand she did not get an administrative or sales job or anything to do with library qualifications. Her only work was a part-time waitress for a short time wheeling a trolley in a yum cha restaurant.
185 When the plaintiff came to Australia to see if she “could better herself,” she ended up being a picker and packer for ten years until injuring her lower back in 2012. Counsel for the plaintiff submitted that is “… quite a long period of time being out of doing the type of vocations that are being thrown around now that she evidently could walk into because she can write a letter or write a document in English”.[63]
[63]T76
186 Further, counsel for the plaintiff submitted the defendant “loved to gloss over” the plaintiff’s physical problem, as a result of which every single doctor has found she has extreme limitations. All have accepted the plaintiff’s complaints of pain, and no one has said she is exaggerating. There was no attack on her credit. She has unrelenting back pain which goes down her legs and is very incapacitating, preventing her from a lot of activities.[64]
[64]T76
187 Counsel for the plaintiff submitted that whilst the plaintiff can do some things in English, she has to keep referring to dictionaries and has to think about how and where the words go, and it was clear from her evidence that she made some mistakes in that regard.[65]
[65]T79
188 It was submitted the impairment document does not translate into the plaintiff being able to hold down a sedentary clerical or administrative type job.[66] Further, heavy reliance was placed on the plaintiff’s poor results in the various tests carried out by Flexi Personnel.
[66]T77
189 While the plaintiff could communicate in English, it was quite clear she has not only got an accent, but choosing the right words is a problem for her. Leaving that aside, she has limited computer skills, as Flexi’s testing indicated.[67] Her typing rate was slow.[68]
[67]T78
[68]T78
190 Further, counsel for the plaintiff relied on what was submitted was a detailed analysis by Dr Middleton.[69] In general, it was submitted, on the basis of medical opinion, the plaintiff was “a long way off getting her foot on the rung of getting a job”.[70]
[69]T80
[70]T81
191 In my view, whilst the plaintiff has on occasion demonstrated some strengths in English, particularly the completion of the impairment letter, those skills do not translate into a capacity for suitable employment of more than a few hours of work a day given her significant physical restrictions.
192 Despite continuing English tuition, I accept the plaintiff has problems with conversational English, as Ms Turner confirmed, and was apparent when the plaintiff gave evidence. It is unlikely her English will significantly improve in the future. Her ability to complete forms or write a detailed letter over a week using a dictionary does not mean she can successfully interact with people, particularly in the workplace, let alone be the interface of a company as Ms Turner confirmed.[71]
[71]T57
193 The plaintiff’s previous work experience in Australia has been in a factory, not an office, and, in my view, she would clearly be unsuited to an administrative or clerical role despite her training and experience in China. An ability to communicate with co-workers in a factory, some of whom spoke her language, does not mean she would be able to cope in an office environment or work to any meaningful degree in the suggested roles of library assistant, real estate agent or receptionist.
194 Combined with the plaintiff’s English difficulties is her obvious significant physical disability which would preclude her engaging in any manual or repetitive work involving prolonged postures – having significant difficulty simply sitting in the witness box for extended periods.
195 I accept that during 2012, the plaintiff undertook a certificate in childcare because she was having problems standing up at work all day with the employer and she thought that childcare would offer a less physical alternative. However, as part of that course, she was required to undertake a one-month placement in a childcare facility. Her experience during that time showed her that she did not have the capacity to do that work because of her back pain, given the lifting and carrying of children and a wide range of other activities that were involved.
196 The plaintiff’s employment was terminated in 2014 as the employer was no longer able to provide her with suitable duties. She has not worked since leaving the employer to undergo the first operation.
197 Since that time, the plaintiff has undertaken a range of short courses, all in English, in particular a real estate course in early 2017.
198 Whilst the plaintiff considers she has a licence, having completed that course, I am not satisfied this is the case.[72] As she explained in re‑examination, the course went for one weekend, in a city real estate office. Thereafter, she and other course participants went to Tarneit or Point Cook, where they were collected by a company representative who showed them landmarks in that area. Course participants were required to recruit potential buyers for properties in that area, and organise for them to attend a seminar with a real estate agent engaged by the company in its city premises.
[72]T56
199 The plaintiff was not successful in obtaining one potential client. She did not make a sale. She was not paid any commission. This clearly was not a real estate agent’s licence as one would expect. Further, as the plaintiff explained, even in that short time, it became apparent she was not suited for that type of work.
200 In my view, the plaintiff would also be unsuited because of the walking and driving requirements of the job.
201 When recently commenting on the plaintiff’s capacity, Mr Hooper was under the misapprehension that she is employed on a formal basis as a childcare attendant at the Centre rather than helping out one morning to pay for her English lessons. On that basis, Mr Hooper thought she could work three to four hours each morning in this role.
202 However, I accept the plaintiff has difficulty even doing the light tasks she presently undertakes in this role one morning per week and would be unable to work further mornings because of her back pain. For these reasons, I do not believe she could work as a hand packer for more than a few hours day in the lightest of jobs.[73]
[73]Dr Yong did not consider this was suitable employment
203 Whilst Dr Jong considered the plaintiff had a capacity to return to work on a gradual basis, he thought the initial twelve hours per week “could” initially increase back to half the working week and then the hours be reassessed.
204 With appropriate vocational retraining and assistance, Mr D’Urso thought light part-time employment up to twenty hours a week “may” be possible in the future, best performed on intermittent days.
205 Dr Middleton thought at best the plaintiff could work up to twelve hours per week, divided between three to four hours per day.
206 Mr Kossmann agreed with Dr Mirhom that the plaintiff has no current work capacity.
207 In my view, due to her significant ongoing pain and restrictions as confirmed by Dr Mirhom, the plaintiff has a capacity to work in the range of fifteen hours per week, working alternate days in very light work, not requiring the use of significant conversational skills in English. The plaintiff would also be an unreliable employee given the severe unexpected flare ups of back pain she experiences
208 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
209 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment,[74] the plaintiff has satisfied the requirements of s134AB(38)(g).
[74]a view shared by Mr Hooper
210 In those circumstances, I am satisfied that she is unable to earn in excess of $422 per week and, accordingly, has suffered the requisite loss.
211 Further, I am satisfied this situation is likely to continue for the foreseeable future.
212 Accordingly, I grant leave to bring proceedings for loss of earning capacity.
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