Clayton v Kraft Foods Limited
[2011] VCC 1225
•22 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04827
| KERRIE ANNA CLAYTON | Plaintiff |
| v | |
| KRAFT FOODS LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 25 and 26 July 2011 |
| DATE OF JUDGMENT: | 22 August 2011 |
| CASE MAY BE CITED AS: | Clayton v Kraft Foods Limited |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1225 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – pain and suffering and loss of earning – injury to the back – application granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Monti with | Nevin Lenne & Gross |
| Mr Pierorazio | ||
| For the Defendant | Mr Middleton SC with | Wisewould Mahony |
| Ms Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 22 May 2006.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the back.
6 The plaintiff relied upon three affidavits, sworn 8 June 2010, 11 January and 15 June 2011. The plaintiff and Mr Peter Blombery were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant 22 May 2006.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (ibid) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d)
under s.134AB(38)(c) of the Act: an impairment or loss of body function, in this case, the pain and suffering, or the loss of earnings consequences shall not be held to be serious unless the consequences, when judged by comparison with other cases, are:
“fairly described as being more than significant or marked, and as
being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[5]
[4] [2009] VSCA 181
[5] at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that there is an issue as to whether the plaintiff has suffered an organic condition and falls within subparagraph (a) of the definition of serious injury or whether her condition is a non organic condition and falls within subparagraph (c), namely permanent severe mental or permanent severe behaviour disturbance or disorder. She does not rely upon subparagraph (c). Further, Counsel submitted that if the injury falls within (a), the consequences to the plaintiff do not meet the test for pain and suffering, in that they can not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range. Finally, she does not satisfy the statutory requirements for loss of earning capacity in that the medical evidence suggests the plaintiff can return to employment.
The Plaintiff’s Evidence
15 In her affidavits sworn on 8 June 2010, 11 January 2011 and 15 June 2011 the plaintiff deposed that:
• She was employed by the defendant as a process worker. •
On 22 May 2006 she injured her back as a result of heavy and repetitive lifting and bending while at work. The injury resulted in pain in the base of her feet, upper legs and lumbar spine.
•
She consulted Dr Drenen, general practitioner, the next day and received pain killers and a referral to a physiotherapist. She continues to see Dr Drenen and take pain medication.
•
She attempted to return to work on two occasions, but was unsuccessful. Her employment with the defendant was terminated on 19 February 2009. She attempted to work as a veterinary assistant but was unable to manage some of the tasks required.
•
She continues to suffer back pain every day, which is worse in the mornings and in winter. The pain radiates into her shoulder blades and neck and down into her feet. The pain increases if she sits, stands or walks for too long or undertakes heavy work. She suffers from headaches and has become depressed. She has difficulty sleeping at night and worries about her finances. She has gained weight, which she can not lose because of difficulty walking.
•
She is restricted in her social, domestic and recreational activities. She has difficulty cooking, washing and cleaning. She finds it difficult to garden, do the grocery shopping and drive long distances. She does not see her children as often as she would like and can not pick up her grandchildren. She is restricted in her hobbies of patchwork quilting and ten pin bowling.
The Plaintiff’s Evidence in Cross-Examination
16 The plaintiff was cross-examined and gave the following pertinent evidence:
•
She would love to return to work as when working she feels as though she is contributing to the lifestyle of everybody. By not working she considers she is not contributing.
•
She worked 38 hours per week plus between four to eight hours overtime every couple of weeks.
• The population of Nathalia is 1500. •
She agreed that she had seen the following doctors on one occasion: Mr S Ring and Mr Todhunter. She also saw Mr Chew, an orthopaedic surgeon, in about 2007 on a couple of occasions. He suggested that she attend the rehabilitation program.
•
She said she derived great satisfaction from quilting but is restricted in what she can now do because she can’t bend and cut out because she is required to lean on the table applying pressure and using a rotary cutter.
17 In re-examination, the plaintiff said:
•
She could not work at the veterinary clinic due to the level of pain she suffered.
•
She takes between four to eight Panadeine Forte per day to ease the pain. She said the chronic pain in the back is always present. She attended a pain management clinic in Bendigo from Wednesday to Friday, staying overnight, for a period of ten weeks.
•
She employs a cleaning lady to perform vacuuming, cleaning the bathroom, toilet, laundry and mopping the floors.
Investigations
18 On 6 June 2006, a CT scan of the lumbar spine was performed and was within normal limits.
19 On 14 July 2006, a standard imaging sequence including continuous block with angled lumbar spine T-1 disc imaging showed no significant
20 On 16 October 2006, x-rays of the pelvis and left hip showed no bony joint and no abnormality was identified. An x-ray of the lumbar spine was normal. A bone scan of the lumbar spine and pelvis showed no abnormality. On 30 October 2006 an MRI scan of the lumbar spine revealed no evidence of central or lateral canal stenosis or focal lumbar disc protrusion.
The Plaintiff’s Medical Evidence
21 In a report dated February 2010, Dr J W Drenen, general practitioner, said that the plaintiff presented on 23 May 2006 complaining of left-sided lower back pain after repeatedly lifting boxes of cheese at her work. He diagnosed a soft tissue injury or muscle tear. He said the pain failed to improve and “it became clear the pain nature had changed and she now had a persistent pain syndrome”. She developed a depressed mood in December 2006 which has fluctuated and for which she has received treatment. She participated in a pain management program in Bendigo in December 2007/January 2008.
22 In June 2011, Dr Drenen said initially the plaintiff was diagnosed with a soft tissue injury of her lower back. The pain changed in intensity and nature, merging into a chronic pain syndrome of her back and she subsequently developed a significant mood disorder of depression. It was his view that her social, domestic and recreational activities had been restricted very significantly in the distance she can ambulate and the duration of any activities undertaken was limited. He said her incapacity was likely to continue for the foreseeable future. He considered that the plaintiff was restricted in activities of prolonged sitting, standing, walking, driving and/or stooping and repetitive bending and/or twisting, which would limit her employment opportunities, such incapacity will continue for the foreseeable future. He said lifting is precluded for any significant weight in employment and non-employment situations.
23 He said the plaintiff was rendered incapacitated for her pre-injury employment and that she was unsuited for any employment, given her capacity for any tasks would be limited to less than one hour per day. He considered that the plaintiff had an incapacity for employment which was likely to continue for the foreseeable future.
24 In respect to future treatment, he expected to continue the present treatment of analgesia to reduce pain levels and anti-depressant medication to help maintain mood, which would also assist with improving her pain level. It was his view the plaintiff will have chronic pain for the rest of her life. He said her depression symptoms fluctuated and he anticipated that she would cease medication for this in the future.
25 Dr David Murphy, consultant physician in rehabilitation medicine, saw the plaintiff at the request of her general practitioner on a number of occasions in December 2006, December 2007, January 2009 and July 2009. Dr Murphy diagnosed a chronic soft tissue pain syndrome with secondary depression. He accepted the injury was work-related. On examination he noted diffuse tenderness indicative of pain syndrome with central sensitisation such as fibromyalgia. He noted that the plaintiff attended a multidisciplinary pain program at the Bendigo Healthcare Group. He imposed physical limitations upon her in relation to lifting; she should not lift more than five kilograms, nor should she undertake any repetitive lifting, bending or twisting. He thought it was unlikely that she would be able to work more than fifteen hours per week.
26 Mr G Brazenor, neurosurgeon, saw the plaintiff in August 2006 at the request of her general practitioner. It was his view that the plaintiff had sustained at most “a minor low back strain” in the work injury of 22 May 2006. He recommended that her work duties be permanently restricted insofar as she should not be asked to repetitively bend at the waist, or lifting objects in excess of fifteen kilograms.
27 The deputy chief medical officer of Bendigo Health confirmed that the plaintiff had been referred by Dr David Murphy to the hospital for an initial pain assessment with a view to being admitted to a pain management program. After assessment it was recommended that the plaintiff was a suitable candidate for the cognitive behavioural pain management program.
28 Dr Peter Blombery, physician (vascular disease) and pain specialist, saw the plaintiff at the request of her general practitioner in November and December 2009, and April 2010. He saw her in May 2011 for the purpose of a medico- legal examination. It was his initial view that the plaintiff had sustained injuries to the facet joints between the vertebrae and other areas which were not evident on the scans. In cross-examination he agreed that that view was speculation but in re-examination he said that 60 to 70 percent of facet joint injuries would not be disclosed on radiological examination and that the majority of people who have back pain will often have normal MRI or CT scans. He said it was his conclusion, based on his consultation, that there was a component of a non-specific pain syndrome present where there was sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli became interpreted by the cerebral cortex as being painful. He said the plaintiff did not have features of Complex Regional Pain Syndrome Type 1. It was his view that the plaintiff had ongoing features of a non-specific pain syndrome affecting her back and legs in the nature of fibromyalgia with sensitisation of pain pathways as outlined above.
29 He considered her prognosis was extremely poor and did not expect significant change in the level of her disability in the foreseeable future. He said her management would consist of analgesic, anti-depressant and anti- convulsant drugs, physiotherapy, behavioural therapy, occupational therapy, as well as other techniques such as TENS and acupuncture.
30 He accepted that her injury would restrict her social, domestic and
31 It was his opinion that the plaintiff had a form of chronic pain syndrome but it had an organic basis because of sensitisation of pain nerve pathways. He noted it was not a psychological disorder.
32 Mr Stephen Leitl, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor in April 2010 and May 2011. He diagnosed a chronic pain syndrome following a lumbar spine soft tissue injury as a result of her workplace duties in May 2006. He noted that the plaintiff cooperated fully with the examination and he considered there was no significant functional overlay and said the current chronic pain syndrome was a genuine expression of the pain she suffered which affected her significantly in that she was unable to return to employment and is restricted in her recreational activities.
33 He considered her incapacity would continue for the foreseeable future. It was his view that the chronic pain syndrome rendered her incapable of pre- injury employment and, given her work history of physical work, he considered she had no capacity for any employment. He considered she was incapable of suitable employment and he considered her current incapacity for work was likely to continue for the foreseeable future.
34 It was his view that her current treatment was appropriate and reasonable and that there was no other treatment that would improve her condition. It was his view that her prognosis remained guarded in view of the fact that it was five years since the onset of her condition, and that there was unlikely to be improvement in the foreseeable future.
35 Mr David Brownbill, neurosurgeon, examined the plaintiff at the request of her solicitors in June 2011. Mr Brownbill said that on examination she showed restriction of cervical and thoracic lumbar spinal movements. He noted there was no objective neurological abnormality of the cranial nerves or the peripheral nervous system in the upper or lower limbs and that there was no sign of radiculopathy or myelopathy. He noted radiological investigations showed no abnormality.
36 It was his view that the plaintiff suffered soft tissue damage to the structure about the lumbar spine in the work activities of May 2006. He accepted that history and examination findings indicated that the plaintiff had developed a chronic pain syndrome which was generalised. From a neurosurgical point of view, there was no precise anatomical basis for such ongoing symptoms, but he accepted that a full assessment of her symptoms lay within the province of a pain specialist.
37 Given that the plaintiff had symptoms for five years, Mr Brownbill thought it likely that they would continue indefinitely. From a neurosurgical point of view, he said she should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
The Defendant’s Medical Evidence
38 The plaintiff was medically examined by Mr Peter Isbister, orthopaedic surgeon, in June 2006 at the request of the defendant. In relation to the CT scan of 5 June 2006, Mr Isbister said:
“There is, however, no comment made on the state of the posterior facet joint. I have found her to be tender over these joints, particularly at L5- S1 level.”
39 It was his opinion that the plaintiff had suffered a musculoligamentous back strain, in all probability stressing the posterior facet joints of the lower lumbar spine. He accepted that the injury occurred in the course of her work and that her employment was a substantial contributing factor to her back injury. He thought she was fit for light duties; namely, tasks of a clerical nature commencing on four hours daily for five days per week. He accepted that her current incapacity was employment-related and he did not foresee any impairment to recovery. He said her condition had not stabilised. He recommended further treatment of physiotherapy, possibly hydrotherapy, to maintain the mobility of her lumbar joints and strengthen her lumbar musculature.
40 The plaintiff was medically examined by Mr Daryl Nye, neurosurgeon, at the request of the defendant in August 2006 and January 2007. It was Mr Nye’s view that the plaintiff suffered a soft tissue injury in a work situation in May 2006. The condition had not responded to conservative treatment. He thought that her condition had shown a tendency to improve with time; however, accepted the plaintiff was currently incapacitated for all forms of employment. He considered her condition had not stabilised and recommended medication.
41 In January 2007, he noted on examination there was a suggestion of some spasm in paraspinal musculature on the left side in the lumbar region. He suspected a development of a chronic pain syndrome and suggested that there may be psychological factors which were relevant. He supported the plaintiff’s entry into a pain management rehabilitation program and expressed interest in the outcome of a psychiatrist’s examination. He accepted the plaintiff was incapacitated for employment and noted that impediments to recovery are foreseen if there is a suspected psychological factor. He said under ordinary circumstances he would not expect a permanent incapacity having regard to the nature of the original injury.
42 In a report dated March 2007 responding to comments made by the defendant, he said clinical examination and radiological investigation did not identify any physical disorder that would preclude re-engagement in employment. He suggested that re-entry into a work situation should be proposed with a graduated resumption, initially undertaking light duties. In March 2007 he said an organic cause for the plaintiff’s symptoms could not be identified. He considered it reasonable that the plaintiff re-engage in employment on a graduated basis.
43 In January 2007 Dr Dush Shan, psychiatrist, examined the plaintiff at the request of the defendant. It was his view that the plaintiff presented as a straightforward individual who did not engage in any illness behaviour or make any emotional statements. He said she did not present with evidence of clinical depression or anxiety. Dr Shan could find no evidence of psychological injury or illness to which employment or the injury was a contributing factor. From a psychiatric viewpoint, he said she had the capacity for pre-injury employment or full time employment.
44 In February 2008, Mr Keith Elsner, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitor. It was his view that there was nothing on current clinical examination to suggest the plaintiff was deriving symptoms specifically from the L5-S1 to L2-3 level. It was his opinion she had suffered a soft tissue injury to the lower back with referred symptoms into the lower extremities. It was his view that her employment with Kraft Foods Limited (“Kraft”) was a significant contributing factor to her injury, but the injury had now resolved.
45 In December 2008, Dr Amanda Sillcock, consultant occupational physician, medically examined the plaintiff at the request of the defendant’s insurer. It was her view the plaintiff was suffering from chronic low back pain with no symptoms or sign of neural compression. She believed there was some exaggeration as to the extent of the plaintiff’s symptoms. She accepted the
46 She noted that the plaintiff had a low level of education and had always performed manual work and had no experience or qualifications for less demanding jobs that may be suited to her physically.
47 She could not identify factors which contributed to or perpetuated her condition and capacity to work. It was her opinion that the plaintiff could resume as a process worker on a full time basis, on a graduated return to work program; however, given the plaintiff had been off work for a couple of years she thought it would be unlikely that this would be achieved. She recommended that the plaintiff return to work on a rehabilitation program. She imposed restrictions of no lifting in excess of seven kilograms, no standing or sitting for more than thirty minutes at a time. She suggested the plaintiff work three hours per day, three days per week, graduating to increased hours.
48 In June 2010, Mr Clive Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. On examination, he noted the plaintiff had widespread tenderness of her lumbar and thoracic spine; that she demonstrated a normal slump test with contradictory physical signs; that there were no abnormal neurological signs. He did not believe her current condition was related to her employment. He said there was ongoing back ache, widely radiating neck pain, headaches and some depression.
49 He considered she was probably unsuited to employment which required active use. He said lifting should be limited to less then ten kilograms and that she could not lift repeatedly. He noted that her domestic and social activities had been curtailed. He said she could not return to her pre-injury employment. He said she had a light work capacity, but noted that due to her current residence, alternative employment would not be easy to find.
50 He accepted that she probably aggravated her back and possibly had degenerative change, but her current condition was not related to employment.
51 Dr Kevin J Fraser, rheumatologist, examined the plaintiff at the request of the defendant’s solicitor in July 2011. He did not consider she had an ongoing injury of a physical nature. He said her symptoms of pain extending from the soles of the feet up to the interscapular region and more recently to her neck, were atypical; that any putative soft tissue strain as a result of bending and lifting in the course of her work would have long since resolved. It was his view that her symptoms were due to non-organic factors. He thought she was fit for her pre-injury duties or for any other work for which she was suited including call centre worker, enquiry clerk, mail sorter, switchboard operator, ticket sales person, telemarketer, sewing machinist and product quality controller.
Video Surveillance
52 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index to the Defendant’s Court Book. If there was film taken of the plaintiff, I can only conclude that it did not assist the defendant.
Credit of the Plaintiff
53 The plaintiff answered all questions put to her in a direct and frank manner.
54 The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw. Only one doctor suggested that she might have been exaggerating, Dr Sillcock. Other doctors accepted her as genuine and in fact Mr Leitl said there was no significant functional overlay. Dr Dush Shan described her as a straight forward individual who did not engage in any illness behaviour or make any emotional statements.
55 The plaintiff gave evidence that she would love to be able to work. According to her affidavits, she had been in continuous work performing manual work including process work, cleaning and gardening. The plaintiff gave evidence that she had returned to work with the defendant but ceased work because of the pain she was suffering. The evidence was that the defendant terminated her on the 19th day of February 2009. The plaintiff gave evidence of attempting further work as an assistant to a vet, but found the work onerous and ceased work because of the pain she suffered. All in all, I accepted the plaintiff as genuine.
56 The plaintiff made concessions, and I accept that she is a witness of truth.
57 Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
58 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course of, her employment with the defendant. All of the medical witnesses accepted that she had been injured at work. The majority of the medical witnesses accepted her current injury was work-related.
59 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[9]
[9] S.134AB(38)(h)
60 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37)), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[10]
[10] (ibid) at paragraph [70]
61 All of the medical practitioners accepted that the plaintiff was injured at work and that the injury amounted to at least a soft tissue injury. All agreed that the investigations were essentially normal and that neurological examination of the plaintiff’s upper and lower limbs was normal. Some doctors accepted she had a soft tissue injury or musculoskeletal injury, probably involving the facet joints in the back. Counsel for the plaintiff submitted that this is a case of a chronic injury causing chronic long term symptoms.
62 Counsel for the defendant submitted that the plaintiff’s injury fell within the first category of compensable low back injury articulated as a “simple musculoligamentous strain” by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd[11] and of which he said that “continuance of physical symptoms over a seven year period would be at least improbable”. I note that Ashley JA qualified himself by talking “in general terms” and “being at least improbable” but not impossible. I accept that this is a case of chronic injury causing long term symptoms and that the plaintiff has suffered such symptoms for five years. Further, some doctors, including treaters, accepted that there was a probable involvement of the facet joints. Accordingly, I do not accept that the plaintiff’s injury is a simple musculoligamentous strain as described by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd.
[11] [2008] VSCA 167 at [143]
63 Further, counsel for the defendant referred to West v Pacific-Rim Printing Pty Ltd.[12] The medical evidence in that case was different to the evidence in this case. In this case, the plaintiff’s psychological or depressive state is quite minimal. She has not been referred to a psychiatrist or psychologist. She has been prescribed antidepressant medication from time to time. The plaintiff is receiving ongoing pain relief, Panadeine Forte, on a regular basis and her doctors, including medico-legal, have accepted that she has an organic complaint as distinct from a psychological basis.13 14
[12] [2003] VSCA 68
64 I accept that I must distinguish between pain and suffering consequences that are organic from those that are psychological in nature.
65 The doctors disagreed on whether the injury is organic or non organic. None of the medical reports indicate that the plaintiff has a serious emotional problem. There was no report of a psychiatrist or psychologist which suggested that the plaintiff’s symptoms are non-organic. A couple of medico legal doctors raised the issue as to whether the plaintiff is suffering an emotional problem. The defendant had the plaintiff medically examined by a psychiatrist, Dr Dush Shan, in January 2007. He concluded that there is no evidence of clinical depression or anxiety. He could find no evidence of a psychological injury or illness, and from a psychiatric viewpoint he said she has the capacity for pre-injury employment or full time employment.
66 Counsel for the defendant submitted that the preponderance of medical evidence is that it does not support an organic basis for the plaintiff’s symptoms.
67 The medical evidence tends to fall into two camps: the plaintiff’s treaters comprising Dr Drenen, Dr Murphy, and Mr Blombery, and the plaintiff’s medico-legal doctor Mr Leitl; and the defendant’s medical practitioners, all of whom saw her on one occasion, other than Mr Nye, who saw her twice.
68 The plaintiff’s general practitioner, Dr Drenen, described the plaintiff’s current condition as a chronic pain syndrome of her back. Dr Drenen had referred the plaintiff to Dr Murphy, a pain specialist, and Dr Blombery, a vascular disease and chronic pain specialist.[15] All specialists saw the plaintiff on a number of occasions over a number of years; Dr Blombery more recently than Dr Murphy. All accepted that the plaintiff’s symptoms are organically based and Dr Blombery in June 2011, said:
“It is my opinion that she does have a form of chronic pain syndrome but this has an organic basis because of sensitisation of pain nerve pathways. It is not a psychological disorder.”
[15] Transcript p 48
69 This is consistent with the view expressed by Dr Murphy. Those doctors provide ongoing treatment for pain relief in the form of analgesics on a regular basis.
70 I accept that because the general practitioner referred the plaintiff to Dr Murphy and Dr Blombery, both of whom were communicating with the general practitioner, I can infer that in expressing his views the general practitioner was adopting the specialists’ views that the plaintiff’s condition was organic. Further, in the general practitioner’s report he says the plaintiff will have chronic pain for the rest of her life and his aim is to help her live with the pain and function at the best level she can despite such ongoing discomfort. He makes reference to her symptoms of depression, which he says fluctuate but anticipates that she will soon cease medication in respect to that condition. There is no suggestion in his report that the depression is significantly affecting the plaintiff’s presentation. There was no referral by him of the plaintiff to a psychiatrist or psychologist. The evidence was that the plaintiff consults the general practitioner on a regular basis of once per month.
71 I am mindful of the fact that the plaintiff was seen by Mr Brazenor, orthopaedic surgeon, in August 2006 and although he thought she suffered a low back strain of a transitory nature, he accepted that she could no longer perform work which involved repeatedly bending and lifting objects in excess of 15 kilograms.
72 The plaintiff’s medico legal reports assist the plaintiff. Mr Leitl, orthopaedic surgeon, says the plaintiff has developed a chronic pain syndrome that has followed a soft tissue injury. He considers there is no significant functional overlay and that her current chronic pain syndrome is a genuine expression of the pain she suffers. Mr Brownbill, neurosurgeon, can not provide a “precise anatomical basis for such ongoing symptoms from a physical neurosurgical point of view” and accepts that a full assessment of her ongoing symptoms
73 In respect to the defendant’s medical reports, other than Mr Nye, all other doctors saw the plaintiff on one occasion. Mr Nye, a neurosurgeon, saw the plaintiff on two occasions in August 2006 and again in January 2007. Mr Nye notes that her condition has not responded to conservative treatment, but he believes the disorder is responsible for the significant symptoms and severity and that she is currently incapacitated for all forms of employment. He does not consider she is fit to resume work. On the plaintiff’s second visit he wondered whether the impediments to recovery were related to psychological factors.
74 In January 2007, Dr Dush Shan, psychiatrist, rejected any suggestion that the plaintiff was suffering depression or anxiety. The only current evidence of this nature is that of her general practitioner, who says that it fluctuates and anticipates she will cease medication for the condition.
75 In respect to the orthopaedic surgeon, Mr Elsner, whilst he accepts the plaintiff’s employment with Kraft was a significant contributing factor, he considers her injury has resolved. However, that report together with others was forwarded to a Medical Panel which rejected that view and assessed the plaintiff as having a five per cent whole person impairment in October 2008. The reports of Mr Isbister and Dr Sillcock are of limited assistance due to the timing of those reports.
76 I am aware that the plaintiff consulted Mr Todhunter on one occasion, Mr S Ring and Dr David Chew, orthopaedic surgeon. The plaintiff did not rely upon reports from those doctors, nor was there any explanation for the failure to do so. In those circumstances, I am entitled to assume that they would not have supported her case. However, taking all the evidence into account, I find that the plaintiff did suffer an injury of an organic nature to her back and that she has suffered chronic back pain as a result of that injury.
77 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 78 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[16] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[17] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[18]
[16] S.134AB(38)(b) and (c)
[17] S.134AB(38)(e), (f) and (g)
[18] Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
79 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
80 I shall consider the narrative test first. Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
…
(ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
81 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless … the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
82 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[19] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[19] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187, at [41]
83 The plaintiff has sustained an injury to her back. The consequences of that impairment are that she suffers chronic pain, she can no longer perform her pre-injury employment and her activities are restricted.
84 The plaintiff’s evidence is that she has always performed physical work. She left school at 15 and has worked in factories. She returned to work after looking after her children working as a gardener, cleaner, kitchen hand, waitress and with the defendant as a process worker. The plaintiff’s most up to date medical evidence, that of Dr Drenen, Mr Blombery and Mr Leitl, is that she is incapacitated for her pre injury employment and that she is restricted for employment for the foreseeable future in relation to activities which involve prolonged sitting, standing, walking, driving, repetitive bending and twisting. Given those restrictions and her age, education, skills, work experience and place of residence they thought this would be likely to continue for the foreseeable future. Mr Brownbill expressed no view as to her employment.
85 Of the defendant’s evidence, Dr Fraser is the only doctor to suggest the plaintiff is fit for pre injury duties without restrictions. He also lists a range of other jobs he thinks she could perform. Given the fact that the defendant’s other medical witnesses took a different view to Dr Fraser I do not place any reliance on his views. The other medical reports of the defendant are not current; however, the authors accept that the plaintiff can not return to pre injury employment and impose restrictions on her bending and lifting. The authors note the plaintiff’s low level of education, her work experience in manual work and her residence and accept that it would be difficult for her to obtain employment.
86 In view of the fact that the plaintiff’s employment experience had been as a worker in manual jobs and the importance she placed upon work, I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
87 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
88 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 – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 89 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”. 90 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
91 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff 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.
92 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 plaintiff’s earning capacity.
93 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) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[20]
[20] (ibid) at paragraph [70]
94 In terms of timing, the comparison between “without injury earnings” and “after injury earnings” is not necessarily consistent. The “after injury earnings” are calculated as at the date of trial (s.134AB(38)(e)), whilst the “without injury earnings” are calculated by reference to the six-year period specified in s.134AB(38)(f). So if the hearing to determine the question of serious injury takes place more than three years after the date of injury, it would not necessarily be an equivalent or parallel comparison: see Acir v Frosster Pty Ltd.[21]
[21] [2009] VSC 454 at [157]
95 The plaintiff’s current earnings from personal exertion are nil.
96 I accept that the injuries suffered have destroyed the plaintiff’s capacity to engage in suitable employment for the foreseeable future. Accordingly, no question of comparable earnings arises pursuant to s134AB38(e) and (f). given the nature of the plaintiff’s injuries and incapacity I am not of the view that s134AB38(g) operates to her detriment. The plaintiff was not offered rehabilitation and retraining. She attempted to return to work which was unsuccessful. She was not offered a return to work program at the defendant’s premises. Her employment was terminated in February 2009. She attempted to return to work as a vet’s assistant, working one day per week between the hours of 10am and 2pm for a period of approximately two months. She was unable to manage the work and the job ceased. I am not of the view that it is any way a failure to engage in rehabilitation or retraining, or a lack of motivation on the part of the plaintiff, that contributes to or is responsible for her being out of the workforce.
97 I accept that the consequences of the injury are permanent within the relevant section, that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
98 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
99 Accordingly, I am satisfied that the plaintiff has established that she has met the requirements of paragraph (f).
100 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
Findings
101 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendant seeking damages for pain and suffering and loss of earning capacity as a result of her employment with the defendant.
102 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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[2003] VSCA 67 at [10]
Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46, Jayatilake at [143] and [144]
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