Closter v Victorian WorkCover Authority
[2024] VCC 507
•1 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04808
| MAXINE CLOSTER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2024 | |
DATE OF JUDGMENT: | 1 May 2024 | |
CASE MAY BE CITED AS: | Closter v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 507 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Richter v Driscoll (2016) 51 VR 95; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted to seek loss of earning capacity and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F A L Ryan SC with Ms G Angelowitsch | Slater & Gordon |
| For the Defendant | Mr C A Miles | Wisewould Mahoney |
HER HONOUR:
Introduction
1Ms Maxine Closter, the plaintiff, is a fifty-two-year-old former retail assistant. She claims that on 21 May 2020, she suffered an injury to her lumbar spine in the course of her work with Petstock Pty Ltd (“the employer”).
2Ms Closter applies for leave to bring a common law proceeding seeking pain and suffering and loss of earning capacity damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). Her claim is that she has a “serious injury” of her lumbar spine.
3To succeed in her application for leave to claim pain and suffering damages, Ms Closter must establish that the permanent impairment consequences of her compensable lumbar spine injury are “serious”, that is, that they can be fairly described as being more than significant or marked, and as being at least very considerable.
4To succeed in her application for leave to claim loss of earning capacity damages, Ms Closter must establish that she is permanently unable to earn at least 60 per cent of her “without injury” earnings in suitable employment by reason of the impairment consequences of her lumbar spine injury. She must also establish that the loss of earning capacity consequence of the lumbar spine injury is “serious”.
5At the start of the hearing, the defendant, the Victorian WorkCover Authority (“the VWA”), conceded that Ms Closter satisfied the threshold to seek pain and suffering damages.[1]
[1]Transcript (“T”) 14-15
6During closing submissions, counsel for the VWA submitted that he had not, or had not intended, to concede the issue of pain and suffering, but rather, submitted that the VWA did not contest that issue.[2]
[2]T64-71
7Senior Counsel for the plaintiff submitted that it was too late for the VWA to withdraw its concession but acknowledged that the matter was able to proceed if the concession was taken as withdrawn.
8I have proceeded on the basis that the VWA withdrew its concession.
9The VWA made no submissions in respect of Ms Closter’s claim for leave to seek pain and suffering damages.
10The VWA did not challenge Ms Closter’s credibility or reliability.
11As to the claim for leave to seek loss of earning capacity damages, the VWA submitted:
(a) Ms Closter had recovered from her compensable physical lumbar spine injury and had a capacity for full-time suitable employment; and/or
(b) Ms Closter had not established she was permanently unable to earn at least 60 per cent of her “without injury” earnings (agreed at $602 per week).[3]
[3] T14
12The issues for determination are:
(a) What permanent impairment consequences are due to the compensable lumbar spine injury?
(b) Is Ms Closter permanently unable to earn at least $602 per week because of the impairment consequences of the compensable lumbar spine injury?
(c) Is the loss of earning capacity consequence of Ms Closter’s compensable lumbar spine injury “serious”?
(d) Are the permanent impairment consequences of the compensable lumbar spine injury “serious”?
13For the reasons that follow, Ms Closter is granted leave to commence proceedings claiming pecuniary loss damages. Such leave also entitles Ms Closter to claim pain and suffering damages.
Background
14The following, I believe, are non-controversial matters. As far as any were contested, these represent my findings unless otherwise stated.
15Ms Closter was educated at Footscray Secondary School and completed Year 11. She worked as a pharmacy retail manager for about 23 years.
16Ms Closter experienced two episodes of low-back pain prior to the incident: in 2013 and 2017. These resolved quickly.
17In 2016, Ms Closter started working for the employer as second-in-charge of its Bacchus Marsh store on a full-time basis.
18In 2019, Ms Closter concurrently began a cake baking business. She reduced her hours of work for the employer to 26 hours per week to give herself time to build up her cake baking business from a studio kitchen she had built at her home. Ms Closter intended to grow that business and hoped it would eventually provide her with full-time work.
19On 21 May 2020, Ms Closter injured her lower back when she was required to move a cage of chickens in the course of her work for the employer. This was the incident in which Ms Closter suffered the lumbar spine injury which was the subject of this application.
20The following day, Ms Closter attended Dr Peta Antonello, osteopath, for treatment.
21On 23 May 2020, Ms Closter attended her general practitioner (“GP”), Dr Ravin Sadhai, who prescribed anti-inflammatory medication, and advised rest.
22Ms Closter was absent from work due to her lower back injury for several days. Thereafter, she returned to work performing modified duties. This continued until November 2020 when Ms Closter ceased work due to her lower back injury. She has not returned to work for the employer since.
23On and off during 2021 and 2022, Ms Closter supervised, and occasionally gave assistance to, her niece to make and decorate cakes in Ms Closter’s kitchen studio. Ms Closter also explored the option of making cookies in her baking business on the basis that it would involve less heavy lifting. Ms Closter said all these activities exacerbated her lumbar and left leg pain.
24Ms Closter said that she has been unable to continue her baking business in any capacity due to her lower back injury.
25Several scans have been undertaken of Ms Closter’s lumbar spine which, in summary, reportedly revealed the presence of degenerative change.
26Ms Closter was referred to Mr Girish Nair, neurosurgeon, on two occasions. He recommended conservative treatment.
27Treatment has included CT-guided steroid injections, intramuscular injections, physiotherapy, care from a pain management specialist, and prescription medication.
28In December 2023, Ms Closter experienced a significant deterioration in her lower back pain when she leant over to put on her socks. Consequently, she had two attendances at the Emergency Department of Ballarat Base Hospital.
29Currently, Ms Closter takes Palexia, gabapentin, Celebrex, pantoprazole, Valium, Panadeine, and Movicol for her lumbar spine condition and its consequences.
30She lives with her husband in Bacchus Marsh.
What permanent impairment consequences are due to the compensable lumbar spine injury?
31Senior Counsel for Ms Closter submitted that Ms Closter’s compensable injury is an aggravation of pre-existing degenerative change in the lumbar spine. As a consequence, Ms Closter suffers constant but fluctuating pain in her lower back and left leg. Senior Counsel submitted that the medical opinions overwhelmingly supported that finding.
32Counsel for the VWA submitted that Ms Closter’s compensable lumbar spine injury had resolved. That submission was founded upon the opinion of Dr Majid Rahgozar, occupational physician, who examined Ms Closter three times at the request of the VWA.
33Ms Closter claimed that the ongoing impairment consequences of her lumbar spine injury were ongoing low-back pain and left leg pain and restriction. Her pain was prone to frequent, significant flare-ups. Ms Closter said that she was limited in her ability to sit, stand, walk, bend, twist and lift. Her sleep was significantly impacted. She found that her pain and medications adversely affected her ability to concentrate, and she struggled to retain information.
34In addition to her own affidavits, Ms Closter relied upon an affidavit sworn by her daughter on 12 March 2024, which broadly corroborated Ms Closter’s account of her impairment consequences. The VWA did not seek to cross-examine her.
35This is a convenient point to consider the medical evidence tendered by the parties relevant to Ms Closter’s lumbar spine condition.
Treating doctors
Dr Ravin Sadhai, general practitioner
36Ms Closter tendered three reports from Dr Sadhai.
37In his first report dated 28 March 2022, Dr Sadhai noted that Ms Closter sustained a disc injury in the incident at work in May 2020 culminating in left-sided sciatic symptoms. He outlined the treatment provided for that condition.
38In his second report dated 20 April 2022, Dr Sadhai gave a detailed account of Ms Closter’s treatment. He opined that she had been unable to return to work despite multiple interventions. He said that the plaintiff’s lumbar spine condition had stabilised, she had no present capacity for suitable employment, and a guarded prognosis. He said Ms Closter required ongoing medication, osteopathy, and pain specialist’s assistance for her lower back condition. He was “uncertain” as to her future capacity for suitable employment and indicated that he would be guided by the assessment of her pain specialist.
39Dr Sadhai’s third report dated 7 March 2024 briefly stated that Ms Closter’s diagnosis and condition had not changed. She continued to suffer from chronic lower back pain and sciatica, requiring a multidisciplinary approach. He said her prognosis was “unknown”.
Mr Girish Nair, neurosurgeon
40Ms Closter tendered a report from Mr Nair dated 18 November 2020 relating to his examination of her on that day.
41Ms Closter was referred back to Mr Nair in October 2022, but no subsequent report was in evidence from him.
42Mr Nair was of the view that Ms Closter’s lower back symptoms were:[4]
“… a combination of degenerative changes and musculoskeletal causes which would respond to a good plan of conservative treatment. She has radicular pain symptoms but in the absence of any neurological deficit and no severe impingement noted on the MRI, she does not need a surgical intervention. … .”
[4]Plaintiff’s Amended Court Book (“PCB”) 53
43Mr Nair recommended continuing conservative management and discouraged any activity which would put excessive strain on Ms Closter’s back.
44Ms Closter said, and I accept, that when she saw Mr Nair again in about October 2022, he gave her the same advice as previously.
Dr Megan Eddy, pain specialist physician
45Ms Closter tendered four reports from Dr Eddy, whom she first consulted in September 2020.
46Between September 2020 and July 2023, Ms Closter consulted Dr Eddy on about thirteen occasions. She was referred back to Dr Eddy following the significant flare up in December 2023, and has consulted her on two further occasions since then, most recently on 25 March 2024.
47In April 2021, Dr Eddy reported that Ms Closter’s lumbar spine condition had sufficiently improved to suggest a capacity for modified duties from a physical perspective.
48She re-stated that opinion in November 2022, noting that the suitable employment options proposed in a transferable skills analysis provided to her were:[5]
“… all suitable on a part time basis depending on the exact job description (eg customer service representative is very broad). My understanding is currently building up her cake decorating business.”
(sic)
[5]PCB 59
49Dr Eddy discharged Ms Closter from her care in July 2023. At that stage, she noted:[6]
“… overall symptoms stable ongoing LBP intermittent leg symptoms, intermittent flares … Largely self-managing with regular exercise, gabapentin. Flares responding to hands on treatment and Palexia intermittently. … .”
[6]PCB 65
50When seen again on 31 January 2024, Dr Eddy noted the severe flare of pain that occurred in December 2023, necessitating emergency department presentations. She was told that Ms Closter’s pain had improved since but had not settled back to baseline and she was experiencing more frequent severe flares.
51When reviewed on 25 March 2024, Ms Closter reported her pain had nearly returned to “baseline”. Dr Eddy opined that Ms Closter continued to suffer from:[7]
“… persistent nociplastic chronic low back pain with intermittent referral to legs. Discogenic in origin originally …
… Maxine’s pain will persist indefinitely, it has never resolved, and overall her injury is stable.”
[7]PCB 65
52Dr Eddy was of the view that Ms Closter would need to take gabapentin indefinitely, as well as medications such as tapentadol and celecoxib for pain flares, have intermittent manual therapy, and specialist pain physician assistance.
53As to Ms Closter’s capacity for suitable employment, Dr Eddy opined:[8]
“… very limited if any. I have not made specific assessment of her capacity as I am not an occupational physician, but note that Maxine has no capacity for any role with a manual component, and she was not able to manage a cake decorating business within her home. … her physical limitations include limited sitting tolerance which impacts on ability to access work due to her rural residence.”
[8]PCB 66
Dr Peta Antonello, osteopath
54Ms Closter tendered two reports from Dr Antonello, her treating osteopath, dated 10 July 2020 and 19 October 2021. Dr Antonello noted the volatility of Ms Closter’s condition.
Medico-legal reports
Dr Hazem Akil, neurosurgeon
55Ms Closter tendered a report from Dr Akil dated 4 January 2024 relating to an examination the same day.
56Dr Akil noted that Ms Closter reported constant pain across both sides of the lumbosacral region. The pain was of variable intensity, worse on bending. Ms Closter’s pain was associated with radiation towards her left leg, down to the calf, and associated with paraesthesia.
57Dr Akil opined that Ms Closter’s pattern of pain was compatible with an aggravation of lumbar spondylosis. Her prognosis was guarded and there was unlikely to be any improvement in the foreseeable future.
58Dr Akil opined that, because of her physical lower back injury, Ms Closter was unable to perform a range of physical activities including prolonged sitting, walking, standing, bending, lifting, twisting and stooping.
59As to work capacity, Dr Akil was of the view that:[9]
“She is in constant pain, and she is currently also on strong analgesia that includes a neuromodulator (gabapentin) as well as tapentadol. In my opinion, she is unable to return to her pre-injury duties doing the same work.
In theory, she can do a desk-based job where she can alternate between sitting and standing. This obviously should take into consideration the fact that she is on gabapentin and tapentadol, which might affect her ability to take decisions, and the job should be considerate to this. Obviously, the presence of persistent pain can interfere with her ability also to focus on duties in any employment.”
[9]PCB 81-82
Dr Dominic Yong, occupational physician
60Ms Closter tendered a report from Dr Yong dated 15 January 2024, relating to an examination the same day.
61Dr Yong noted that Ms Closter complained of constant pain in her lower back, which could sometimes radiate up to her neck, and down her left leg. She experienced numbness in her left leg into her third to fifth toes, and pins and needles.
62On examination, Dr Yong noted that Ms Closter walked with a slow gait. There was tenderness to palpation in the lower back and a reduced range of motion. There was reduced sensation to light touch over her left leg laterally. Power was reduced for left knee and hip movements. Axial load testing was negative.
63Dr Yong’s diagnosis was that Ms Closter had a discal injury with persisting dysfunction in her lower back with radicular symptoms. He opined that by reason of that physical injury, Ms Closter should avoid a range of activities including repeated bending and twisting of the back, lifting more than 5 kilograms on a repeated basis, and she ought to vary her posture regularly between sitting, standing, and walking. Dr Yong noted that Ms Closter’s symptoms were unpredictable in nature.
64Dr Yong noted that because of Ms Closter’s functional restrictions, she was not capable of performing suitable employment, and that incapacity was likely to continue for the foreseeable future.
Dr Clayton Thomas, rehabilitation and pain physician
65The VWA tendered two reports from Dr Thomas dated 22 September 2022 and 11 January 2023. Dr Thomas examined Ms Closter on 19 September 2022.
66In his first report, Dr Thomas found the following on examination:[10]
“She was a very cooperative earnest woman. She had a mildly antalgic gait.
In the standing position, she had an active trigger point on the left which radiated pain down to the back of the left hamstring.
Lumbosacral were about 40% of normal. Extension was more comfortable than flexion.
[10] Defendant’s Amended Court Book (“DCB”) 59
Neurologically, reflexes were brisk and symmetrical. There was no wasting on formal measurement. There was sensory loss left lower limb nonspecifically.
There was mild weakness of the left lower limb compared to the right lower limb. Straight leg raising was mildly reduced on the left both seated and lying. Straight leg raising was better seated than lying.”
67Dr Thomas was of the view that Ms Closter likely sustained an injury to her lower lumbar spine in the incident, and it may well have been an injury to one of the lower disc levels. He opined that the injury had “transformed into a chronic pain syndrome with radicular type pain into the left lower limb but no hard evidence of radiculopathy”.[11] In context, I understood the reference to a Chronic Pain Syndrome to be a reference to an organic condition. The VWA acknowledged this was so.[12]
[11] DCB 59
[12]T66
68Dr Thomas opined that Ms Closter was unfit for her pre-injury duties and hours. He identified that a problem with her condition was that it fluctuated frequently, which made it difficult to set specific guidelines as to her capacity for suitable employment. Dr Thomas set out a range of restrictions, including no bending below the waist or above chest height, a 5-kilogram lifting limit between waist and chest height, and an ability to alternate posture between sitting and standing.
69Within the various limitations he recommended, Dr Thomas was of the view that Ms Closter’s work capacity was 15 hours, being 5 hours per day on three non-consecutive days a week. Dr Thomas noted that given the restrictions he identified, Ms Closter was precluded from returning to suitable employment. He said: “This is due to the fluctuating nature of her condition and therefore inability to perform work in a sustained reliable manner.”[13]
[13] DCB 60
70Dr Thomas was asked to comment upon five proposed employment options. He said (in answer to question 7) that the roles of cake maker/decorator and retail manager assistant were not suitable. Dr Thomas described the roles of customer service representative, administration assistant and medical receptionist as “reasonable within the limitations I have placed on her”.[14]
[14] DCB 60
71Dr Thomas provided his second report after being provided with further documents, including the report of Dr Eddy dated 3 November 2022. He did not re-examine Ms Closter.
72Dr Thomas said:[15]
“Noting the report from Dr Megan Eddy who is supportive of her return to suitable employment, I believe that the comments that I made relating to the answers in question 7 of my report remain pertinent.
Under the circumstances it is reasonable to indicate that she has capacity for suitable employment albeit with restrictions.”
[15]DCB 63
73I pause to observe that Dr Thomas’ opinions were provided prior to the flare up Ms Closter experienced in December 2023. Dr Eddy’s opinion regarding Ms Closter’s work capacity, upon which Dr Thomas placed reliance, is no longer the same.
Professor Peter Teddy, neurosurgeon
74The VWA tendered a report from Professor Teddy dated 26 July 2023. Professor Teddy examined Ms Closter that day.
75Professor Teddy noted Ms Closter was a pleasant, direct historian. He found no muscle wasting. He noted the sensory blunting that Ms Closter complained of in her upper limbs was non-dermatomal. Straight leg raising was reduced to 75 degrees on the left, and there was somewhat variable sensory blunting in the left L5 and S1 dermatomes.
76Professor Teddy diagnosed:[16]
“… back pain most probably as a result of aggravation of a relatively mild/modest lumbar spondylosis, with degenerative changes noted on MRI mainly at the L4/5 and L5/S1 levels. There is a degree of facet arthropathy at each of these levels. … there appeared to be a definite symptomatic relationship with her incident as reported on 21 May 2020. She also reported leg pain that may have been attributable to a degree of irritation of either the L5 or S1 nerve roots at the L5/S1 level but she currently has no convincing evidence of significant radiculopathy, other than slight blunting of sensation in the left L5 and S1 dermatomes. There may have been some contribution to this from a nerve root block at the L5/S1 level in November 2020. She exhibits some elements of a chronic pain syndrome and has been diagnosed as having an adjustment disorder with mixed anxiety and depression … .”
[16]DCB 82-83
77Professor Teddy said Ms Closter’s “presentation and examination findings [were] largely consistent with the radiological appearances as reported”.[17] He detected the presence of a functional component or psychological reaction but believed this to be of “modest degree”. He elaborated as follows:[18]
“Ms Closter does exhibit some elements of a chronic pain syndrome. In her particular case, although she had some pre-existing psychological issues and was somewhat tearful when describing her inability to play with her grandchildren, I think that the diagnosed adjustment disorder, on the balance of probabilities, is a result of her chronic pain rather than being a major initiating factor. From a purely physical neurological point of view, she does, however, have very little in the way of neurological deficit and, as such, should be capable or working in a sedentary capacity, avoiding the working activities documented in the reports of her pain management advisors.
…
[17] DCB 83
[18]DCB 83
I suspect that Ms Closter will be subject to continuing low back pain and probably continuing pain of a neuropathic nature in the left lower limb to varying degrees of severity and frequency for the foreseeable future. ... .”
Dr Majid Rahgozar, occupational physician
78The VWA tendered four reports from Dr Rahgozar dated 30 June 2023, 19 July 2023, 22 January 2024 and 4 March 2024. Dr Rahgozar examined Ms Closter on 29 June 2023, 18 January 2024 and 1 March 2024.
79On examination in June 2023, Dr Rahgozar noted Ms Closter’s range of motion of her lumbosacral spine was severely restricted in all planes: “This was associated by expression of pain upon simulated rotation of [the] spine and axial loading”.[19] He noted widespread tenderness to very fine touch along the spine “that appeared to be less upon distraction”.[20] There was tenderness to fine touch, particularly along the left leg. Neurological examination was regarded as normal apart from a generalised weakness and loss of sensation to pain in the left upper and left lower limb “without any myotomal, dermatomal or peripheral nerve pattern”.[21]
[19]DCB 88
[20]DCB 67
[21]DCB 67
80Dr Rahgozar opined that the clinical picture was rather complex. He noted the multilevel degenerative changes revealed by imaging which he said could have been aggravated at work. He noted that Ms Closter had experienced significant emotional stressors since her injury which he said, “are predictive of non-specific chronic pain”.[22] Dr Rahgozar was of the view that the usual expectation would be that the condition would slowly improve. He noted Ms Closter’s chronic pain had persisted “in the context of a number of psychosocial risk factors which are predictive of long-term pain and disability of non-specific nature”.[23] Those factors included that Ms Closter’s presentation had “elements that cannot be explained by a physical or a musculoskeletal pathology raising the possibility of [a] non-organic component to her presentation and illness behaviour” (emphasis added).[24]
[22]DCB 69
[23]DCB 69
[24]DCB 70
81Dr Rahgozar subsequently concluded that Ms Closter’s compensable lumbar spine injury had resolved and therefore, she had no significant disability or limitations “for activities of daily life, leisure and work in comparison to a woman of her age and constitution”.[25] He recommended attempts be made to cease Valium and reduce Ms Closter’s reliance on opioids, and hands-on treatment ought to cease in favour of a self-managed program.
[25]DCB 71
82Dr Rahgozar was subsequently provided with a Nabenet suitable employment report dated 12 July 2023 which identified the roles of cake decorator, retail manager, customer service representative, administration assistant and virtual medical receptionist. He opined that Ms Closter had the skills and capacity to work full time in each of those roles.
83Dr Rahgozar re-examined Ms Closter on 18 January 2024. Dr Rahgozar’s examination findings on this occasion were similar to his previous findings. Once again, his opinion was that the compensable physical injury had resolved. Ms Closter was therefore not physically incapacitated and could return to her pre-injury duties or other suitable work on a full-time basis.
84Dr Rahgozar examined Ms Closter again on 1 March 2024. His examination findings were like those he had made previously. He opined:[26]
“… chronic pain is a complex neurobiological phenomenon and while one cannot rule out the fact that Ms Closter is experiencing pain, but her presentation is very unlikely to have a physical or organic cause. Her pain has become persisting and complicated by a number of psychosocial risk factors that are predictive of long-term pain and disability of [a] non-specific nature. These are:
a. her concurrent mental health condition,
b. failure of her self-business,
c. ongoing non-evidence-based passive treatments such as massage and manipulation and traction therapies by her osteopath.
d. she has been using Palexia for [a] prolonged period of time at some stage in association with Valium which is predictive of non-specific pain.
e. There is involvement of lawyers and compensation matters which is an independent risk factor for chronic pain and disability.
f. Her presentation today has elements that cannot be explained by a physical or musculoskeletal pathology raising the possibility of [a] non-organic component to her presentation.
[26]DCB 97
My overall view is that her presentation from a physical and musculoskeletal health has not changed since prior to the flare-up of December 2023 although due to emotional distress she might have been taking more analgesics that also have sedative anti-anxiety effects.”
Conclusions
85I do not accept the opinion of Dr Rahgozar that the compensable lumbar spine condition has resolved.
86First, I prefer the diagnoses of the neurosurgeons, Dr Akil and Professor Teddy of a continuing aggravation of pre-existing degeneration to the diagnosis of an occupational physician.
87Second, Dr Rahgozar’s conclusion is against the weight of the medical evidence. Each of the treating practitioners, Mr Nair, Dr Eddy, Dr Sadhai and Dr Antonello were of the view that Ms Closter suffers from a continuing physical injury to her lumbar spine. Further, Dr Akil, Dr Yong, Dr Thomas and Professor Teddy also support the view that there is a substantial organic basis for Ms Closter’s continuing lumbar spine symptoms.
88Third, Dr Rahgozar does not sufficiently articulate the path of reasoning for his conclusion regarding physical recovery or as to how the flare up Ms Closter experienced in December 2023 factors into his overall conclusion.
89Counsel for the VWA submitted that even if I did not accept Dr Rahgozar’s opinion that Ms Closter had recovered from her compensable physical lumbar spine condition, I could accept his opinion as to her physical work capacity. I do not accept that submission, as Dr Rahgozar’s opinion about Ms Closter’s work capacity is heavily dependent on his diagnosis.
90On the basis of the medical evidence I prefer, I find that Ms Closter continues to suffer from impairment consequences caused by her compensable lumbar spine condition. There is a substantial organic basis for her impairment consequences.
Is Ms Closter permanently unable to earn at least $602 per week because of the impairment consequences of the compensable lumbar spine injury?
91I am required to take a “real world” approach to Ms Closter’s employment capacity. It requires more than a physical capacity to engage in a task or tasks.[27]
[27]Richter v Driscoll (2016) 51 VR 95 at paragraph [106]
92I find that Ms Closter possesses the intellectual skills or aptitude to undertake each of the suitable employment options outlined in the Nabenet report dated 12 July 2023, namely, cake decorator, retail manager, customer service representative, administration assistant and medical receptionist (virtual). I also find that each of those roles are available in Ms Closter’s area.
93Counsel for the VWA submitted, and it was not challenged, that Ms Closter would earn more than $602 gross per week if she worked the following hours in those roles:
· cake decorator – 27 hours per week
· retail manager – 22 hours per week
· customer service representative – 22 hours per week
· administration assistant – 18 hours per week
· medical receptionist (virtual) – 22 hours per week.
94I am satisfied that Ms Closter attempted to work in a modified capacity in her cake decorating business in 2021 and 2022. I accept her evidence that she could not continue to perform even that modified aspect of her business at home because of the pain and restriction caused by her compensable lumbar spine condition.
95I find that Ms Closter has been unable to work in any reliable or consistent manner since November 2020 by reason of the impairment consequences of her compensable lumbar spine injury.
96It was apparent to me, from her oral evidence, that Ms Closter:
(a) would like to work;
(b) recognises that she has, or has the capacity to obtain, the skills to perform a variety of light jobs;
(c) is willing to try to work, preferably from home, as soon as the symptoms of her lumbar spine condition permit.
97I am particularly assisted by the opinion of Dr Yong regarding Ms Closter’s work capacity, given his expertise in occupational medicine.[28] Unlike Dr Rahgozar, his opinion of continuing impairment due to the compensable lumbar spine injury accords with the other medical evidence I prefer. His opinion as to work capacity is also in line with the opinions of Dr Eddy and Dr Thomas.
[28]Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 at paragraph [96]
98In short, I find Ms Closter is unable to perform any role with a significant manual component. She has a limited sitting and standing tolerance. She is unable to undertake work that requires repeated bending, twisting and any significant lifting. Ms Closter has a theoretical capacity for sedentary or light work on a part-time basis. However, the unpredictable nature of Ms Closter’s pain and restrictions, and the effect of her medications upon her concentration, mean that she is unable to reliably undertake any suitable employment.
99I find that the roles of cake decorator and customer service representative involve manual handling tasks which are beyond Ms Closter’s physical restrictions.
100I am satisfied, on the basis of the medical evidence which I prefer, that Ms Closter has established that she is permanently unable to work in any reliable capacity in any suitable employment due to the unpredictable nature of her pain and restrictions.
101However, if, contrary to that finding, she was able to work as a retail manager, administration assistant or medical receptionist in the foreseeable future, Ms Closter is restricted to working a maximum of five hours a day on three non-consecutive days a week, that is 15 hours per week. Such restricted hours result in Ms Closter being unable to earn at least 60 per cent of her “without injury” earnings by reason of her compensable lumbar spine condition.
Is the loss of earning capacity consequence of Ms Closter’s compensable lumbar spine injury “serious”?
102Ms Closter’s inability to undertake suitable employment into the foreseeable future by reason of the impairment consequences of her compensable lumbar spine condition is a serious earning capacity consequence. Ms Closter therefore satisfies the narrative test.
103Given that Ms Closter has satisfied the statutory threshold to claim loss of earning capacity damages with respect to the impairment consequences of her lumbar spine injury, she is also entitled to claim pain and suffering damages with respect to that injury.[29]
[29]Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]
Conclusion
104Ms Closter has leave to issue common law proceedings claiming both pain and suffering and loss of earning capacity damages.
105I will hear the parties on the issue of costs.
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