Corona v Victorian WorkCover Authority
[2022] VCC 1212
•3 August 2022
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00534
| MELISA CLARA CORONA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 26 July 2022 | |
DATE OF JUDGMENT: | 3 August 2022 | |
CASE MAY BE CITED AS: | Corona v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1212 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY
Catchwords: Pain and Suffering conceded by defendant – whether loss of earnings
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013;
Cases Cited:Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292;
Judgment: Application for pain and suffering and loss of earnings granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr A Saunders | Gordon Legal |
| For the Defendant | Mr S Smith QC with Ms J Clark | Wisewould Mahony |
HIS HONOUR:
Introduction
1The plaintiff is a 53-year-old former aged care worker. Born and raised in Geelong, she is a single parent of two teenage children. She seeks a certificate for pain and suffering and loss of earning capacity pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”) for leave to bring common law proceedings for pain and suffering and loss of earning capacity in respect of a serious long-term impairment to her upper right limb incurred throughout the course of her employment and as a result of an incident of heavy lifting on 18 December 2017 when working with for employer at Brentwood Aged Care.
2The plaintiff’s application relied on paragraphs (a) and (c) of the definition of “serious injury” contained in s 5(1) of the WIRCA. The part of the body said to be impaired for the purposes of paragraph (a) is the spine, and in particular, the cervical spine. The particulars of injury relied on comprised:
“Spine including;
L4/5 disc bulge and facet joint hypertrophy;
Severe stenosis of the right subarticular recess and;Impingement of the traversing L5 nerve root.”[1]
[1] Particulars of Injury dated 18 May 2021, Plaintiff’s Court Book (‘PCB’) 8.
3For the purposes of paragraph (c) the particulars of injury relied on comprised:
“Disturbed sleep; and or
Anxiety and depression”[2][2] Particulars of Injury dated 18 May 2021, PCB 8.
The narrowed application
4At the commencement of the hearing the defendant conceded that the plaintiff meets the test for leave to pursue a common law claim in relation to the pain and suffering consequences of her injury. However, the defendant disputes the plaintiff’s claim that she has suffered a loss of earning capacity that meets the relevant test.
The evidence
5The plaintiff relies on the following evidence:
(i)Affidavit of Melisa Corona sworn 10 September 2020,[3] Further Affidavit of Melisa Corona sworn 19 July 2022,[4] and Affidavit of Melissa Corona sworn 26 July 2022.[5]
(ii)MRI Lumbar spine dated 24 August 2018,[6] CT lumbar spine dated 24 January 2018,[7] Whole Body Scan dated 2 November 2016,[8] and Operation Record dated 4 July 2019.[9]
(iii)Reports of Dr Hargreaves dated 2 December 2019[10] and 1 April 2021.[11]
(iv)Reports of Mr Nicholas Hall dated 26 September 2018,[12] Mr Nicholas Hall to Gallagher Bassett 26 September 2018[13] and Mr Nicholas Hall dated 23 August 2019.[14]
(v)Reports of Dr Slesenger report dated 1 September 2021[15] and dated 20 May 2022.[16]
(vi)Belmont Bulk Billing Clinical Records.[17]
(vii)Taxation Summary.[18]
(viii)Various Payslips dated 18 March 2022 – 24 June 2022.[19]
(ix)Certificates of Capacity dated 26 May 2022.[20]
(x)MRI Lumbar Spine dated 25 January 2018.[21]
[3] Exhibit P1, PCB 10-15.
[4] Exhibit P1, PCB 16-34.
[5] Exhibit P1, Plaintiff Supplementary Court Book (‘PSCB’) 166-168.
[6] Exhibit P2, PCB 53.
[7] Exhibit P2, PCB 54.
[8] Exhibit P2, PCB 55.
[9] Exhibit P2, PCB 56-57.
[10] Exhibit P3, PCB 67-82.
[11] Exhibit P3, PCB 83-85.
[12] Exhibit P4, PCB 58-59.
[13] Exhibit P4, PCB 60.
[14] Exhibit P4, Defendant Supplementary Court Book (‘DSCB’) 79.
[15] Exhibit P5, PCB 102-113.
[16] Exhibit P5, PCB 114-126.
[17] Exhibit P6, PCB 127-164.
[18] Exhibit P7, PCB 165.
[19] Exhibit P8, PSCB 169-185.
[20] Exhibit P9, PSCB 186-187.
[21] Exhibit P10, PSCB 188.
6The defendant relies on the following evidence:
(i)Report of Dr Simone Ryan dated 23 October 2019.[22]
(ii)Report of Associate Professor Anthony Buzzard dated 30 January 2020.[23]
(iii)Reports of Dr Michael Baynes dated 8 June 2021[24] and 26 August 2021.[25]
(iv)Report of Dr Catherine Bones dated 23 June 2022.[26]
(v)Nabenet Suitable Employment Report dated 20 July 2021.[27]
(vi)Nabenet Vocational Employment Report dated 29 August 2019[28]
(vii)Defendant’s summary of pay slips.[29]
[22] Exhibit D1, Defendant Court Book (‘DCB’) 27-35.
[23] Exhibit D2, DCB 36-43.
[24] Exhibit D3, DCB 44-48.
[25] Exhibit D3, DCB 49-53.
[26] Exhibit D4, DCB 54-64.
[27] Exhibit D5, DCB 65-77.
[28] Exhibit D6, DSCB 80-94.
[29] Exhibit D7.
7In determining the application I have read and considered the material relied upon by the parties together with the transcript of the proceeding and the addresses of counsel. Insofar as the medical material is concerned, I intend to refer only to such parts of the records or reports relied on by the parties that has proved of assistance to me in the resolution of the plaintiff’s claim for a loss of earning capacity.
The plaintiff
8The plaintiff left school after Year 11 and worked in dry cleaning stores for around 10 years. Later she worked in disability support with various employers. She worked as a Personal Care Attendant in Darwin for a period of time and ran a baking business from her home when she moved back to Victoria in 2010.
9She commenced employment in around February 2017 at the Brentwood Agreed Care facility. In her 10 September 2020 affidavit, she says she worked five days a week, by taking on two days each week beyond her permanent three-day roster. Her duties involved providing general personal care to residents, including toileting, showering and dressing.
Injury
10The plaintiff was injured at work on 18 December 2017 when a resident had slid down their bed over the course of the night and was too low in her bed for her to be fed breakfast. The plaintiff says that when she tried to use a slide sheet to move the resident up to the head of the bed, she suffered pain in her lower back. She says that with the assistance of a co-worker the bed was raised to suit the co-worker’s height, but that the co-worker was shorter than the plaintiff, and therefore the plaintiff needed to bend at her knees to manoeuvre the resident and the slide sheet. The plaintiff says that she continued working that day but that she found that after a few days she developed pain down her right leg and into her foot. She says she also experienced numbness in her right foot and right sided ‘foot drop’. Despite these symptoms, she continued to try to do her normal work.
11The plaintiff says she attended the onsite physiotherapist, who provided her with treatment at work, but it did not help reduce her pain levels. Due to ongoing pain, her GP, Dr Yoong, prescribed Panadeine Forte and she was referred for a CT scan of her lumbar spine on 22 January 2018. The CT scan revealed a mild to moderate central and right paracentral disc bulge at L4/5 contacting and impinging the traversing right L5 nerve root.
Post Injury
12The plaintiff said she suffered an acute worsening of back pain while unloading groceries from her car on 23 January 2018. She was transported by ambulance to Geelong Hospital and the next day was transferred to the Alfred Hospital. An MRI revealed a right paracentral disc protrusion at L4/5 with compression of the right traversing L5 nerve root. She underwent a nerve root injection on 30 January 2018, but it did not assist her in relieving the pain in her back and leg. She had a second nerve root injection on 15 May 2018, but neither did this lead to any improvement in her symptoms.
The return to work
13The plaintiff stopped work initially on 23 January 2018. A few weeks later on 20 March 2018 she returned to work on modified duties. She performed administrative work and light laundry work. Under cross-examination by Mr Smith the plaintiff agreed she told a Medical Panel that she returned to work three days a week, five hours per day and subsequently increased her hours performing administrative work and answering enquiries and working in the laundry.[30] She agreed that she built up to 25 hours a week working in a training type role and also by doing some administrative receptionist work.[31] She agreed with Mr Smith that during the period of her return to work, she took a week off work in response to what she described as an attempt by a manager to have her return to showering duties that had aggravated her symptoms significantly.[32] She underwent an MRI of her lumbar spine on 23 August 2018. It revealed an L4/5 disc bulge and facet joint hypertrophy; severe stenosis of the right subarticular recess; and impingement of the traversing L5 nerve root. The pain in the plaintiff’s back was persisting and she was suffering pain radiating into her right leg and numbness in her right leg and foot.
[30] T44, L20-26.
[31] T46, L28-30.
[32] T46, L15-18.
14The plaintiff was referred to Mr Nicholas Hall, neurosurgeon. Surgery was recommended. The plaintiff continued to work light duties until the surgery was performed on 4 July 2019, by way of a right L4/5 laminotomy, microdiscectomy and rhizolysis.
15The plaintiff said she tried to return to work after surgery, but ultimately ceased employment on 30 September 2019 as she was unable to return to personal care attendant duties with her employer.
Foundational principles
16Where there the claim is 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 [33].
[33] WIRCA, s 325(2)(f).
Plaintiff’s earning
17At the commencement of the hearing both parties sought to supplement their Court Books. Neither party objected to the other’s application and, therefore, the further material was accepted for filing in Court.
18Of the respective addition material it is the contents of a further affidavit deposed to by the plaintiff that is most important. It sought to correct some assertions about the plaintiff’s working week made in her first affidavit with the result that it opens up for consideration what the parties described as a “Jessop” point, this being a shorthand form expression intended to refer to the decision of the Court of Appeal in Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop[34] about which I will need to return in detail later.
[34] Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 (‘Jessop’).
19To appreciate the changes made by the plaintiff’s third affidavit, it is appropriate to commence with paragraph 26 of her first affidavit in which she deposed that at the time of her injury in December 2017, she was earning at a rate around $24.422 gross per hour as a result of working “about full-time hours each week”.[35] This would therefore equate to approximately $928.36 per week.
[35] Exhibit P1, PCB 14.
20In her third affidavit sworn 26 July 2022 and filed in Court as part of the plaintiff’s supplementary Court Book, the plaintiff said her reference to her working “about full-time hours” in paragraph 26 of her first affidavit is wrong. She deposed that in fact she was rostered to work three days per week (Monday, Tuesday and Wednesday) on top of which she often worked additional shifts on Thursday and Friday. The plaintiff said that on Monday, she worked four hours, and on Tuesday and Wednesday she worked seven and a quarter hours. The additional shift on Thursdays or Fridays varied such that sometimes she worked four hours and sometimes she worked seven and a quarter hours.
21Furthermore, and also in her third affidavit, the plaintiff deposed that as a result of having again looked at her payslips, she realised that she did not work additional shifts as often as she had thought but that she did perform as much overtime as was offered because she needed to work as many hours as possible from financial necessity. Moreover, she deposed that for a short period prior to the December 2017 injury, and in April and May 2017, she worked a second job, again as a personal care attendant and did about five shifts of which some were of eight hours, and others of six hours, but later resigned from this work for reasons irrelevant to the determination of this application.
The plaintiff’s evidence in chief
22In her first affidavit sworn on 10 September 2020, and so made when the plaintiff was not working, she described suffering constant pain in her lower back that was on average around 5 out of 10 in intensity but varied and when at its worst (around two or three days each week), it can be as high as 9 out of 10 in severity. The pain radiated into her right leg, and she was suffering numbness in her right leg and foot.
23The plaintiff said that at this time she was taking Panamax medication, and Targin. She was receiving physiotherapy around once a month. She had a home-based exercise program prescribed by her physiotherapist, and was doing Pilates and strengthening exercises for her back and foot. She was occasionally attending hydrotherapy classes when her pain was at its worst.
24The plaintiff deposed that the pain in her back, leg and ankle was aggravated by sitting or standing for prolonged periods. She said she was limited to around 20 minutes or half an hour of sitting or standing and after 45 minutes or so of driving found she needed to stop due to increased pain.
25In her first affidavit the plaintiff explained that she had enrolled in a Certificate 4 in Mental Health. In her second affidavit sworn on 19 July 2022, she said she had completed the Certificate and, in February 2022, she obtained employment as a mental health support worker. At the date of the hearing of this application the plaintiff remained employed in this job.
26The plaintiff deposed in her second affidavit sworn on 19 July 2022 that she continued to see her GP, Dr Hargreaves, as well as other doctors at a bulk billing clinic on a regular basis. She was still attending Pilates classes weekly and undertaking her home exercises.
27In that same affidavit the plaintiff said her medication consisted of Tramadol, Codapane Forte and Panadol Rapid. She said her back pain, at rest, was relatively mild, but almost any activity makes her condition worse.
The hours worked
28At paragraph 9 of her second affidavit of 19 July 2022 the plaintiff deposed that when she commenced employment in March 2022 she worked 18 hour fortnights, undertaking shifts of up to four hours, and sometimes working seven days per fortnight, and on occasions, more. However, she said that she struggled and quickly found that she was in more pain, more often, and fatigued, and that this level of work was not sustainable. She deposed that as a result, and “after discussing matters with her doctors”[36], she decided to reduce her work hours, which she was able to do by relinquishing a leaving her responsible for the care of two clients. She deposed at paragraph 12 of this affidavit that since March 2022, she was working “up to 14 hours per fortnight”[37], consisting of two hours on Monday, three hours on Wednesday and four hours every other Saturday and that sometimes the shifts are shorter, depending on the client’s needs.
[36] Exhibit P1, PCB 18.
[37] Exhibit P1, PCB 18.
Third affidavit
29In her third affidavit, dated 26 July 2022 the plaintiff said she was mistaken when she deposed she had reduced her hours in her current job as a mental health worker in March 2022 and in fact this did occur until June 2022. She said that prior to reducing her hours in June she tried taking additional medication to see if she could keep working greater hours. She says she attended her GP in late April 2022 who prescribed Tramadol and Codapane Forte but that even with this medication, she considered that an 18 hour fortnight (the hours referred to by the plaintiff in her 19 July 2022 affidavit that she was working in the job when she commenced employment) was unsustainable.
30Otherwise, and in addition to the reduced hours that the plaintiff says commenced in June this year, she deposed that she also undertakes some volunteer work at a community centre from time to time but only when she is up to it and not, for example, each week.
31The plaintiff deposed that she believes a 14 hour working fortnight is her maximum capacity in her employment. She maintained this under cross-examination.
32The plaintiff deposed that she is paid $31.48 per hour on weekdays, and $44.16 per hour on Saturdays plus a travel allowance of $36 hour.
Cross-Examination
33The plaintiff agreed that in the fortnight ending 24 June 2022 she worked 19.78 hours.
34The plaintiff agreed that she last saw Dr Hargreaves on 26 May 2022. Prior to this she consulted him on 9 September 2021 and on 6 September 2019. The plaintiff said she “usually saw” Dr Crowe at the same clinic.
35The plaintiff said she has not looked into a pain management program although she said she’s “been told by lots of people to do pain management, doctors.”[38]
[38] T33, L8-10.
36The plaintiff did not dispute she told the Medical Panel on 11 April 2019 that in her employment with the defendant that she was working 5 hours a day 4 days a week and doing additional work.
37The plaintiff was not in receipt of prescribed medication for back pain between October 2019 and February of 2021.
38The plaintiff said it did not seem correct for Dr Bothroyd to have recorded of his examination of her on 2 October 2019 that she had 95 per cent range of movement in her back and was pain-free.
39The plaintiff agreed that most of her complaints to doctors after 5 February 2021, related to the condition of her wrist from an unrelated matter. Other than the Corona virus the plaintiff was unable to explain an absence of attendance by her or complaint to doctors about worsening back pain. She said the practice performed telehealth consultations.
40When it was put to the plaintiff that there is an absence of record between October 2019 and February 2021 of complaint of back pain and an absence of having been prescribed Panadeine Forte from October 2019 to February 2021, despite the plaintiff having said that her back pain had worsened in 2020, she said she did eventually attend on doctors although, as Mr Smith put to the plaintiff, her resumed attendance on 5 February of 2021 for a complaint back pain to Dr Morris, occurred very shortly after she had been notified that her serious injury application was rejected.
Discussion of the medical evidence
Mr Hall
41Mr Hall, neurosurgeon in a report dated 26 September 2018 and, therefore, provided prior to the surgery he would perform on the plaintiff, wrote that:
“Melisa's MRI demonstrates right sided severe lateral recess stenosis from a combination of disc prolapse and facet hypertrophy. There is no left sided symptomatology and no canal stenosis.”[39]
[39] Exhibit P4, PCB 59.
42Mr Hall observed that given the plaintiff had failed with a trial of conservative management, had a significant neurological deficit with a fairly profound foot drop and was experiencing ongoing pain despite two nerve root injections, the only sensible recourse would be surgical decompression.
Treating practitioners
43The plaintiff said that she sees Dr Crowe regularly and that Dr Crowe would be best placed among the practitioners at the clinic she attends to comment on her. Unfortunately there is not a report from Dr Crowe or any of the other doctors she has seen at the clinic although there are two reports from Dr Hargreaves.
Dr Hargreaves
44Dr Hargreaves provided reports to the plaintiff’s solicitors dated 2 December 2019 and 1 April 2021. Both of them predate the plaintiff commencing her current employment in March 2022. Dr Hargreaves diagnosed a prolapse of the L4/5 lumbar disc with subsequent imaging having demonstrated an L4/5 lumbar disc prolapse impinging the exiting L5 nerve root on the right hand side. In his report dated 2 December 2019, Dr Hargreaves wrote that:
“After a good result and recovery from the spinal surgery, Ms Corona has minimal treatment requirements currently, having been able to cease analgesic medications.
She will probably need access to intermittent physiotherapy on an indefinite, if infrequent basis, and may at times have short lived requirement for simple analgesic medication.
She would also benefit from access to a gym with a view to longer term maintenance core strengthening exercises.”[40]
[40] Exhibit P3, PCB 68.
45Dr Hargreaves thought the plaintiff’s prognosis to be very good to excellent provided she takes care with use/movement of her back.
46Of the plaintiff’s capacity to perform pre-injury duties, Dr Hargreaves said that she should not currently or ever return to her full pre-injury duties which had included requirements for direct hands-on patient care with need to lift and support clients. I pause here and note that Mr Smith conceded that the plaintiff could not return to her pre-injury duties and a return to such formed no part of the defendant’s case.
47However, Dr Hargreaves also said that the plaintiff retained partial capacity for lighter duties that do not require repetitive bending/twisting, lifting, or working bent over. He said he considered partial capacity was also the case for any current and future capacity to engage in general employment.
48In his second report dated 1 April 2021, Dr Hargreaves said that the plaintiff may regain partial capacity for lighter duties that do not require repetitive bending/twisting, lifting, or working bent over. Given that in his 2 December 2020 report Dr Hargreaves said that the plaintiff retained partial capacity for lighter duties that do not require repetitive bending/twisting, lifting, or working bent over and that he considered this partial capacity to apply to her current and future capacity to engage in general employment, it is difficult then to reconcile this with his opinion expressed in his second report that “from a practical level” the plaintiff will never regain employment as a consequence of the injury suffered and that she has no current or future capacity for employment.
Dr Slesenger
49Dr Slesenger provided two medico-legal reports on behalf of the plaintiff dated 1 September 2021[41] and 20 May 2022. In his September 2021 report Dr Slesenger said that the plaintiff should adhere to the following restrictions into the foreseeable future:
· “No push, pull, carry or lift over 5 kg.
· No repetitive bending or twisting.
· No prolonged static postures.
· No exposure to whole body vibration.
· Limited walking.
· Avoid climbing up and down stairs.
· Avoid walking over uneven ground.”[42]
[41] Wrongly dated in the Court Book index as 1 September 2022.
[42] Exhibit P5, PCB 111.
50Dr Slesenger did not think the plaintiff could return to her pre-injury role, however, he was optimistic that the plaintiff could return to work performing alternative duties working 4 hours a day, 2 days a week, increasing up to 3 days per week. This would equate to anywhere between a minimum of 16 hours to a maximum of 24 hours a fortnight. In assessing the plaintiff’s degree of functionality and tolerance Dr Slesenger said he took into consideration the plaintiff’s symptoms, functional limitations, past employment history, computer skills, qualifications, driving limitations, day-time fatigue and the variable and unpredictable nature of her symptoms.
51In his 20 May 2022 report Dr Slesenger said the plaintiff told him she had not experienced improvement in symptoms since his last evaluation and, on the whole, her symptoms had deteriorated.
52Dr Slesenger said the plaintiff told him that she had successfully completed a Certificate IV in Mental Health in February 2022 and had obtained her current employment with “Support Pathways” as a Mental Health Support Worker, supporting clients within the community, assisting them with community access (e.g. shopping and appointments). She said it was a role she enjoyed but she was struggling with one of her clients.
53The plaintiff told Dr Slesenger that she was working between 2 and 4 hours per day, 3 or 4 days per week, usually commencing work at 9 am. She said she was working 18 hours per fortnight but planned to reduce this to 14 hours per fortnight.
54It is worth noting that the plaintiff’s expressed intention recounted by Mr Slesenger on 12 May 2022 reflects the same intention the plaintiff said she had discussed with her doctors in April 2022.
55As part of the request for a second report, Dr Slesenger was asked if he thought the plaintiff’s injury had stabilised. He explained that this was a difficult question to answer. He noted that in the interval since his first evaluation, there was evidence of an improvement in the plaintiff’s presentation and, in particular, he noted significantly improved clinical examination findings but he also referred to the plaintiff’s account of deteriorating symptoms she had attributed to her work arrangements. Overall, Dr Slesenger thought that that the plaintiff was in the early phases of establishing an appropriate return to work plan and that she is likely to see some changes in her symptoms as she returns to the workplace and that it may be some time before she established a pattern of work that suits the combination of her pain, her requirements of medication as well as her fatigue.
56Dr Slesenger noted that the plaintiff had not attended a pain specialist and he thought this was something from which she may benefit in addressing her pain control which he thought was suboptimal. He also noted that she the plaintiff had recently introduced Panadol into her pain management.
57Dr Slesenger said that the plaintiff’s current employment in the aged care sector involves tasks that “lie within her capacity limits. She could work in an administrative/customer support role or work as a Contact Centre Operator.”[43] He thought she should adhere to the recommended physical restrictions but that she be limited to working 3 days per week working 2 to 3 hours. Accordingly, he recommended a minimum working capacity of 12 hours a fortnight or a maximum capacity of 18 hours a fortnight. He anticipated that these restrictions would likely to continue into the foreseeable future and that the plaintiff’s prognosis was guarded given the degenerative nature of her underlying condition, her limited response to treatment to date and her psychological comorbidity. Taking the evidence as a whole, whilst he recognised that there are opportunities for further treatment (namely, a review under the care of a pain specialist), he considered that the plaintiff had approached a position of maximum medical improvement.
[43] Exhibit P5, PCB 125.
Dr Simone Ryan, consultant occupational physician
58Dr Ryan provided a report dated 23 October 2019 at the request of the defendant. In the context of the date of her report, it is another report that was obtained after the plaintiff ceased her return to work with her previous employer but prior to her commencing her present employment.
59In her report, Dr Ryan noted that the plaintiff is a:
“50-year-old former personal care assistant who, in the course of her work on 18 December 2017, sustained a work-related lower back lumbosacral spine disc injury at level 4/5 which was requiring to proceed to surgery. She has had good outcome from the surgery undertaken on 4 July 2019. She continues to rehabilitate through her current physiotherapist and clinical Pilates program. She is extremely motivated and actively seeking new sustainable employment. Regarding her work, it is my opinion that Ms Corona is best to avoid repetitive heavy lifting. She indicated that her personal care assistant role in her aged care facility did have some heavier type of clients and certainly this is also my understanding of this type of role as an occupational physician. Moving forward, it would be best for Ms Corona's long-term sustainability of her lower back that she undertake much lighter work. This could include recreational work in an aged care facility, lifestyle work, light laundry work although I would indicate she would not be suitable for full-time laundry work due to the heavy repetitive nature of the same. She could also undertake some administrative work.”[44]
[44] Exhibit D1, DCB 30.
60As to the plaintiff’s capacity for work, Dr Ryan reported that the plaintiff is “fit for usual hours of work. She is best not to return to pre-injury duties due to the heavy, repetitive and vulnerable nature of the type of work as a personal care assistant in an aged care facility. For the long-term sustainability of her back, she is best to undertake much lighter work.”[45]
[45] Exhibit D1, DCB 32.
61When asked when the plaintiff’s capacity for work should be reviewed, Dr Ryan said that the plaintiff will “soon successfully apply for suitable employment acknowledging the restrictions that have been placed on her at the moment and given her motivation to work it is reassuring that she has an occupational rehabilitation provider assisting her in job seeking. I therefore do not believe that she will require further review regarding work capacity.”[46]
[46] Exhibit D1, DCB 33.
62Dr Ryan reported that the plaintiff should do her best to avoid full-time laundry work, but that she could undertake some light laundry work in a task rotation of a health care or similar facility.
Associate Professor Anthony Buzzard
63Associate Professor Buzzard examined the plaintiff on behalf of the defendant and provided a report dated on 30 January 2020. He recorded that a “Medical Panel found that the plaintiff suffered from an aggravation of L4/5 disc injury with right sided LS radiculopathy materially contributed to by the claimed injury of 18 December 2017. She has had subsequent surgery for her back which has not been completely successful on the grounds that she still has evidence of persisting right sided radiculopathy. I don't think that that is likely to change in the future. The weakness is not such as to require her to wear a toe-up splint.”[47]
[47] Exhibit D2, DCB 40.
64As to the plaintiff’s working capacity, Associate Professor Buzzard said that “it is reasonable to accept that she does have "a light work back" and ought not to be carrying out work involving heavy lifting. In other words she shouldn't be carry out the work of a PCA. She could carry out work without involving lifting of greater than about 10kg if such work could be found for her.”[48]
[48] Exhibit D2, DCB 40.
Dr Michael Baynes
65Dr Baynes is an occupational physician and at the request of the defendant’s solicitors provided two independent medical reports dated 8 June 2021 and 26 August 202. He reported on the occupational history of the plaintiff and said that:
“She has been undertaking a mental health course since August 2020 which she will complete the study component by next week and then she has to undergo 80hr of placement which she has organised although COVID-19 has put the start date of this in doubt. She advises the placement will involve supporting clients and their social needs. She advises that she has reasonable computer skills and has undergone Zero and Excel course training. She has had to use a computer for studying her mental health course a lot of which has been online and over Zoom.”[49]
[49] Exhibit D3, DCB 46.
66His examination revealed “flexion to 80° with slight discomfort, extension 30° with pain, right lateral flexion 30° and left lateral flexion 20° with pain over the right side of the back. Rotation was normal. Ms Corona advises some difficulty walking on her toes but unable to walk on her right heel. She was able to do a half squat. She reported numbness in the dorsum of the foot and over the shin below the knee, the same area where she had pain. She reports tenderness to palpation over the right side of the lower back.”[50]
[50] Exhibit D3, DCB 46.
67In his report dated 8 June 2021, Dr Baynes expressed the opinion that the plaintiff is fit for alternative duties of a sedentary nature with no lifting greater than 5-6kg and no lifting from below knee height or above shoulder height. He reported that the plaintiff “would not be fit for full-time hours but would be fit to work on a part-time basis usually working around 25 hours a week particularly working on alternate days. With work hardening, I believe she would ultimately be able to increase her hours.”[51]
[51] Exhibit D3, DCB 52.
68Dr Baynes thought that suitable work for the plaintiff includes “mental health and social work areas once she has completed her studies. She would also be fit to work as a disability support worker but not where she is requited to undertake direct patient care or manual handling. She would also be fit to work in administration and retail where there is ability to rotate postures. Supply of a sit/stand desk, particularly in terms of office administration, work would be appropriate.”[52]
[52] Exhibit D3, DCB 48.
69Dr Baynes thought that the plaintiff is fit to work in either an office or community centre environment and would also be fit to work in a retail environment with restrictions.
70In his report dated 26 August 2021, Dr Baynes said he had been supplied with a Suitable Employment Report from Nabenet dated 20 July 2021.[53] He said he remained of the opinion that the plaintiff was capable of working in mental health or social work areas. He observed that at the date of his examination the plaintiff was undertaking a placement as part of her studies.
[53] Exhibit D5, DCB 65-77.
71Dr Baynes expressed the opinion that the plaintiff has the physical capacity to undertake the duties in the Nabenet Employment Report, however, she would not be able to undertake heavy lifting or continuous standing.
Dr Catherine Bones
72Dr Bones is an Occupational Physician who provided an independent medical report dated 23 June 2022 at the request of the defendant’s solicitors. She examined the plaintiff recently on 14 June 2022. She said that the plaintiff requires the following occupational restrictions:
“Avoidance of lifting from the floor or above shoulder height.
Caution with bending, squatting, stooping and twisting.
Avoidance of lifting in excess of 8 kg, waist height only.
Avoidance of repetitive or sustained bending, stooping, forward reaching and squatting.
Avoidance of sustained sitting with the ability to stand and move around every 30 to 40 minutes wherever possible.
Avoidance of sustained static standing.”[54]
[54] Exhibit D4, DCB 61.
73Dr Bones said the plaintiff should be able, in time, to undertake activities in line with the above restrictions up to five hours a day, four days per week, however, to achieve this degree of capacity may take further work hardening over the next eight or so months.
74Dr Bones considered that:
“Ms Corona has a current capacity to undertake the duties of a mental health support worker, and is currently working in this role, reduced hours.
Ms Corona has a current capacity to undertake the role of case manager, given that the physical requirements of that role appear to lie within the occupational restrictions outlined in my response to Question 3.
Ms Corona has a current capacity to undertake the role of aged care receptionist, given that the physical requirements of that role appear to lie within the occupational restrictions outlined in my response to Question 3.”[55]
[55] Exhibit D4, DCB 62.
75Dr Bones thought the role of retail assistant (ladies fashion) is less suitable for the plaintiff, given the requirement to move stock between the storeroom and the shop floor with weights likely to exceed 2 kg and a requirement for bending.
76Dr Bones said the plaintiff told her that she is finding her current hours of 7 hours a fortnight to be her maximum tolerance currently[56]. In the fortnight 11 June to 24 June 2022, the plaintiff’s pay slip identifies that she was paid for 15.52 hours of work and, therefore, greater than the 14 hours a fortnight she told Dr Bones amounted to her working capacity.
[56] Consistent with the evidence this must be intended to refer to 14 hours a fortnight not 7 hours a fortnight.
77Dr Bones thought that with time and adjustment to being back in the workforce, and adjusting to the work/family balance that the plaintiff’s capacity for increased hours will improve with work hardening.
78Dr Bones believed it to be more likely than not, that the plaintiff will be unlikely to return to full time hours, but she may, in time, increase to 12-15 hours/week (spread over 3 days) although this may take a further 6-8 months for this to be achieved.
Analysis and findings
79In the course of analysing a loss of earning capacity claim the plaintiff must show, and it is she who bears the onus in this regard, that she has suffered a permanent loss of earning capacity of at least 40 per cent after any reasonable rehabilitation and retraining.
The statutory prescription
80For the purposes of establishing a 40 per cent loss of earning capacity, the Court must compare:
(i)“the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at the date, whichever is the greater, and—
(ii)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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”[57]
[57] WIRCA, s 325(f).
81The first of these expressed imperatives represents the gross income which most fairly represents the plaintiff’s earning capacity had the injury not occurred.
82The second expressed imperative is whether the plaintiff’s current earning capacity is productive of a loss of 40 per cent or more when compared to her “without injury” earnings taking account of a capacity to earn from personal exertion.
83In Jessop, the Court of Appeal held that s 134AB (38)(f)(ii) of the Accident Compensation Act (expressed in no relevantly different terms than s 325 of the WIRCA) is intended to be read as follows:
“[T]he gross income (expressed at an annual rate) that the worker:
· was earning from personal exertion; or
· was capable of earning from personal exertion; or
· would have earned from personal exertion; or
· would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the injury, as most fairly reflects the worker’s earning capacity had the injury not occurred.”[58]
[58] Jessop [2014] VSCA 292 [42].
84The Court of Appeal went on to say:
“… It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”[59]
[59] Ibid [53].
85The Court noted that the actual hours worked, and the worker’s actual earnings will only be the best evidence under the first scenario, referred to as the “gross income” scenario, but that the actual hours worked and the worker’s actual earnings will not necessarily be the best evidence in relation to the other scenarios.[60]
[60] Ibid [55].
86The statute also requires that questions of rehabilitation and retraining must be considered in determining whether the 40 per cent loss has been established.[61]
[61] WIRCA, s 325(2)(g).
Counsel Addresses
87Mr Smith made the following submissions.
88First, Mr Smith submitted that I should be satisfied that the plaintiff has a capacity for full time hours performing work that makes provision for the restrictions that have been recognised as appropriate by medico legal specialists on behalf of the defendant and the plaintiff.
89Mr Smith submitted in the alternative to a finding of a full time hours capacity, that I could be satisfied that the plaintiff possesses a capacity for work much greater than 14 hours a fortnight in her current job or, in suitable employment and, if the plaintiff was assessed with a work capacity of say, 15 hours a week then she would not meet and discharge the statutory threshold for a loss of earnings claim on the defendant’s contention of the plaintiff’s without injury earnings in the relevant period.
90Mr Smith submitted that it was a strange, if not dubious state of affairs, that it was only on the eve of the hearing of the plaintiff’s serious injury application that she came to realise that her capacity for employment in her current employment was exhausted at 14 hours a fortnight. Mr Smith submitted that to the extent the plaintiff’s reporting to Dr Bones on 14 June 2022 that she was “finding her current hours of 7 hours a fortnight to be her current maximum tolerance”[62] and this could be treated as a realisation of a reduced capacity, then nonetheless, in the pay period that encompassed the date of the plaintiff’s examination with Dr Bones, and afterwards, the plaintiff worked more than 14 hours a fortnight. Mr Smith further contended that after April 2022, this being the date when the plaintiff said she first discussed a reduction in hours with her doctors the plaintiff worked 17.75 and 15.25 hours per fortnight and in the period 30 April to 13 May 2022, 16 hours and on 14 May to 27 May 2022 19.75 hours and not 14 hours. The plaintiff worked 12 hours in the fortnight 28 May 2022 to 10 June 2002 and although in the two subsequent fortnights she worked 15.25 and 15 hours respectively.
[62] Exhibit D4, DCB 63.
91Mr Smith next submitted that in December 2019, Dr Hargreaves reported that the plaintiff had benefited greatly from Mr Hall’s surgery and Dr Hargreaves offered her a good to excellent prognosis. Mr Smith submitted that the very different and less optimistic opinion expressed by Dr Hargreaves in April 2021 that the plaintiff lacked capacity to engage in any form of employment is not supported by evidence such as the receipt of treatment the plaintiff received in the period between the date of his two reports as a result of any deterioration in her condition but, in any event, the opinion proved wrong in light of the fact that the plaintiff subsequently commenced work in March 2022.
92Mr Smith referred to the reports of Dr Slesenger. In his report dated 1 September 2021, Dr Slesenger wrote that “taking into consideration her daytime fatigue, the variable and unpredictable nature of her symptoms and the recent increasing symptoms she noted whilst retraining, I recommend that she returns to work 4 hours a day, 2 days a week, increasing up to 3 days a week.”[63]
[63] Exhibit P5, PCB 112.
93Dr Slesenger’s second report of May 2022, by which stage the plaintiff had been in her current employment for a number of weeks, was less than emphatic in its assessment of the plaintiff’s working capacity. Dr Slesenger wrote that he anticipated “that she will struggle with a 4-hour shift and I recommend that she be limited to working 3 days a week, working 2-3 hours per shift”.[64] Based on this assessment, if the plaintiff’s maximum capacity is 3 days a week by 2 hours per shift, this equates to 12 hours a fortnight or, if it is assessed as 3 days a week by a 3 hour shift, this equates to 18 hours a fortnight.
[64] Exhibit P5, PCB 125.
94Mr Smith submitted that Dr Slesenger would have been aware that the plaintiff had exhibited a capacity to work up to 25 hours a week following her return to work with the defendant employer and that this level of work capacity had continued up to the time when Mr Hall performed surgery, following which the plaintiff agreed that she had experienced improvement and, as he put it[65], the plaintiff has exhibited a capacity to work up to 15-16 hours since commencing her current employment in March 2022. Therefore, Mr Smith submitted, Dr Slesenger’s recommendation in his May 2022 report of 12 hours a fortnight lacked a reasoned basis.
[65] T76, L22 – T77, L8.
95In addressing the income the plaintiff earned in the three years before injury and after injury, Mr Smith referred to the following amounts reflected in the table below:
FY
Income source (personal exertion and Workcover)
Total income from personal exertion and Workcover
2014
Business Income
Total
$3,339 (expense, $7,290)
-$3,951
2015
Business Income
Total
$2,624 (expenses, $2,612)
$12
2016
$0
$0
2017
Opeka Lodge Pty Ltd
Bupa Aged Care Services Pty Ltd
Total
$12,745
$932
$13,677
2018
Opeka Lodge Pty Ltd
Total
$35,877[66]
$35,877
2019
Opeka Lodge Pty Ltd
Total
$32,158
$32,158
2020
Opeka Lodge Pty Ltd
Total allowances including commissions, director’s fees, bonuses, tips or consultation fees
Total
$4,291[67]
$27,727
$32,018
2021
Brentwood Aged Care
Total
$16,890
$16,890
[66] The plaintiff stopped work on 23 January 2018 and returned on 20 March 2018 performing administrative work and light laundry duties. She then continued to work until her surgery on 4 July 2019.
[67] The plaintiff ceased work on 4 July 2019. She was in receipt of weekly payments of compensation until 30 January 2021.
96The figures earned by the plaintiff in the relevant period of course need to be compared with what the plaintiff is now capable of earning. In furtherance of his submissions, Mr Smith argued that the “but for injury earnings” figure for the purpose of calculation under s 325(2)(e) of the WIRCA which most fairly represents the plaintiff’s without injury earnings is approximately $38,082.66 gross per annum. Mr Smith identified that between 5 March 2017 and 3 February 2018, a period of approximately 48 weeks, the plaintiff earned $35,153.22. This would amount to $38,082.66 per annum and represent average weekly earnings throughout this period of $732.36 gross per week. Mr Smith submitted that this sum most fairly reflects the worker’s earning capacity had the injury not occurred because it is the plaintiff’s best earnings over the relevant period. Sixty percent of this gross annual sum amounts to $22,849.84 or $439.42 per week.
97Mr Smith anticipated that the plaintiff’s third affidavit was intended to support a contention that her reported income or gross receipts of taxable income earned in the period and relied on by the defendant is a lesser sum than her capacity to have earned income in the period and that the without injury figure should more fairly be in the sum of $935 gross a week as is represented by the highest payslip the plaintiff received during the period.
98Mr Smith submitted that the plaintiff is paid $31 and $44 an hour respectively and depending on when over the course of a week the work is performed in her current employment together with a travel allowance with the average hourly rate the plaintiff is paid being $36 per hour. These figures were not contested by the plaintiff.
99Mr Smith submitted that if the plaintiff is able to work say, 15 hours a week in her current job then this would equate to $540 per week and the plaintiff would fail in her claim for loss of earnings capacity based on the defendant’s argument of the without injury earnings.
100Mr Macnab submitted that the plaintiff’s without injury working capacity should be assessed to be in excess of 65 hours per fortnight.[68] He supported his submission by recourse to the plaintiff’s payslips in her pre-injury employment period commencing and from 5 March 2017. The first payslip is for 40 hours worked in a fortnight. He referred to the payslip for 11 June 2017 identifying 67.75 hours; and on 25 June 2017 pay for 64 hours. On 6 August 2017 the plaintiff was paid for 65.75 hours. On 3 September 2017 the plaintiff was paid for 65.5 hours. On 29 October 2017 the plaintiff was paid for 63.5 hours and on 24 December 2017 the plaintiff was paid for 65 hours work.
[68] T86, L4-11.
101Mr Macnab submitted that a work capacity of 65 hours a fortnight is “the starting point”[69] and that I should consider the plaintiff’s evidence in her third affidavit of the work she did in the course of the but for injury period and being “rostered on Monday, Tuesday, Wednesday, on top of which I often worked additional shifts Thursday and Friday. On Monday I worked four hours, and on Tuesday and Wednesday, seven and a quarter hours. The different additional shift varied - sometimes I did four hours sometimes I did seven and a quarter hours.”[70] As well the plaintiff deposed that she “did do as much overtime as I was offered; I wanted to work as many hours as possible - for financial reasons.”[71]
[69] T86, L23.
[70] Exhibit P1, PSCB 167.
[71] Exhibit P1, PSCB 167.
102Mr Macnab furthermore relied on the plaintiff deposing in her third affidavit that in April and May 2017 she worked a second job as a personal care attendant over various hours in shifts during that period. Although the plaintiff lacked a payslip for this work in April and May 2017, Mr McNab submitted the fact of the work reinforces the plaintiff’s evidence that she wanted to be employed for as many hours as she could.
103Accordingly, Mr Macnab submitted that the state of the evidence permitted the Court to consider not only what the plaintiff earned in the relevant period but what her earning capacity was that most fairly reflects her earning capacity in accordance with the Jessop analysis and that in this case the plaintiff’s capacity is not most fairly reflected by the plaintiff’s gross income.
104Mr Macnab submitted that the plaintiff’s earning “capacity” is best and most fairly reflected when on 24 December 2017, she was paid $1,814.16 for a fortnight’s work. This would amount to approximately $47,168.16 per annum, sixty percent of which is $1,088.496 per fortnight or $544.24 gross per week.
105Mr Macnab next submitted that in comparing the plaintiff’s after injury earnings, this is best identified by the pay period 25 June 2022 to 8 July 2022 that disclosed a fortnightly receipt of income in the sum of $665.32 for 15 hours work, or $332.66 gross per week. If this submission is accepted it would result in the plaintiff having discharged her burden and satisfied the statutory test for a loss of earnings.
106Mr Macnab submitted that in determining the plaintiff’s after injury earning capacity I should assess the plaintiff favourably in light of her efforts to equip herself educationally for work in her preferred sector and by reason of her aptitude in having studied and trained to obtain her Certificate and having worked through her placement requirement and then securing her employment. He submitted these are favourable traits that belie the defendant’s insinuation that the plaintiff’s expressed decision to reduce her maximum work to 14 hours per fortnight was a ruse to facilitate a favourable finding on her pecuniary loss claim or that her recent medical attendances with back pain was a result of the insure having rejected her serious injury application. Mr Macnab described the plaintiff as a stoic.
107Mr Macnab submitted that the clinical record of the plaintiff’s attendances on treating GPs are that in April and May 2022 she was in need of and was prescribed pain relief that is consistent with the performance of the greater hours she had worked since the commencement with her employer in March 2022 and of its deleterious effects on her back. Mr McNab observed that on 28 April 2022, Dr Morris recorded the plaintiff with “increasing pain since started work started working casual on 9/3/22, for “Support Pathways” and was prescribed Tramadol 50mg 1-2 every 4 hours”[72] as needed.
[72] Exhibit P6, PCB 163-164.
108On 26 May 2022 the plaintiff attended on Dr Hargreaves and was prescribed Tramal slow release with Panadeine Forte for breakthrough for pain management and he issued the most recent certificate of capacity that the plaintiff “can work 2-3 three non consecutive days – up to 2-3 hours per day, depending on fatigue and pain levels.”[73]
[73] Exhibit P9, PCB 186.
Findings
109The plaintiff having obtained the concession by the defendant that she has suffered a serious injury by way of pain and suffering, in order to obtain leave in relation to loss of earning capacity, she must also establish that – -
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more, and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently.[74]
[74] WIRCA, s 325(2)(e).
110The measurement of loss of earning capacity requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
But for injury earnings
111As I have already said, in order to determine the figure for comparison purposes under s 325(2)(e) and (f) of the WIRCA, the plaintiff’s earnings must be considered. Under s 325(3)(f) without injury earnings are calculated by reference to the part of the period within three years before and after the injury as most fairly reflect the plaintiff’s earning capacity had the injury not occurred.
112If I apply the first scenario of “gross income” referred to in Jessop then between
5 March 2017 and 3 February 2018, a period of approximately 48 weeks the plaintiff earned $35,153.22 or, on average, $732.36 per week. This equates to $38,082.72 as an annual gross sum, sixty percent of which is $22,849.63 per annum and $439.42 gross per week.113It seems to me that the application of the first scenario, is not the best approach in the plaintiff’s case as I am satisfied it would lead to a potentially unfair result for her by not reflecting her but for injury earnings capacity and that the better course is the application of the second scenario which is arrived at by assessing what the plaintiff was capable of earning from personal exertion in the three years before the injury and the three years after the injury if the injury had not occurred.
114I accept Mr McNab’s submission that the plaintiff through a combination of her work ethic and by dint of financial necessity exhibited a determined approach to work and her advancement though study and training and this is exhibited by her account of her working the days she did as well as additional work.
115The plaintiff’s payslips in her but for injury employment period commencing from
5 March 2017 identify the provision of a first payslip of 40 hours worked in a fortnight. The payslip for 11 June 2017 identifies 67.75 hours; and on 25 June 2017 work of some 64 hours. On 6 August 2017 the plaintiff was paid for 65.75 hours. On 3 September 2017 the plaintiff was paid for 65.5 hours. On 29 October 2017 the plaintiff was paid for 63.5 hours and on 24 December 2017 the plaintiff was paid for 65 hours work. I am satisfied that the plaintiff’s capacity to work at least 65 hours a fortnight was not an aberration but occurred sufficiently enough to establish a proved capacity to work such hours when available to her.116On the analysis advanced on behalf of the plaintiff her annual income earning capacity withing the but for injury period would amount to approximately $47,168.16 per annum or $1,814.16 for a fortnight’s work sixty percent of which is $1,088.50 per fortnight or $544.25 gross per week.
117For the reasons expressed I accept Mr McNab’s submissions.
118In the plaintiff’s current employment encompassing 5 March 2022 to 8 July 2022[75] she has worked the following hours and been paid the following amounts:
[75] Exhibit D7, table below.
Pay period Hours worked Amount paid 5 March 2022 – 18 March 2022
(PCB 169)13.25 $639.34 19 March 2022 – 1 April 2022
(PCB 171)18.75 $644.06 2 April 2022 – 15 April 2022
(PCB 173)17.75 $612.58 16 April 2022 – 29 April 2022
(PCB 175)15.25 $889.16 30 April 2022 – 13 May 2022
(PCB 177)16 $642.17 14 May 2022 – 27 May 2022
(PCB 179)19.75 $848.42 28 May 2022 – 10 June 2022
(PCB 181)12 $538.45 11 June 2022 – 24 June 2022
(PCB 183)15.25 $782.75 25 June 2022 – 8 July 2022
(PCB 185)15 $665.32 119If I am satisfied and accept the plaintiff’s evidence that her capacity is 14 hours a fortnight and that this is a permanent state of affairs then she will succeed on whichever of the plaintiff’s or defendant’s methodology for assessing but for injury earnings. The outcome is adverse to the plaintiff if, for example, the plaintiff has a capacity say for 15 or more hours a week.
120After having considered all of the evidence I am satisfied that the plaintiff’s present capacity is limited to 14 hours a fortnight and that this is permanent in the sense that it is likely to prevail for the foreseeable future. Before explaining why I have arrived at this finding, I recognise that there is the anomaly between the plaintiff’s accounts of the date that she reduced her hours to 14 per fortnight and that in her most recent fortnight she worked 15 hours and not 14. That she did so is inconsistent with the plaintiff’s earlier affidavit evidence of when she reduced her hours and it is also wrong when considered against the timing of the report given to Dr Bones putting aside the plainly wrong reference in this report to the plaintiff having a working capacity of 7 hours a fortnight. However, that the assertion on the material is wrong of the maximum working hours to date, the difference between 14 and, say, 15 hours a fortnight, is immaterial to the outcome and the recognition that it is, suggests to me that it is more likely the plaintiff was mistaken as opposed to it being a deliberate understatement of capacity for her benefit.
121It is also appropriate to express that I am satisfied that the plaintiff has proved that she does not presently possess and will not have a capacity for full time hours and that this situation is permanent and neither am I satisfied that a capacity for a return to full time hours in her job or in suitable employment will be likely able to be achieved through a progressive work hardening. That this state of affairs might be achieved is really an outlier on the medical evidence such as Dr Baynes, for example, who thought the plaintiff has a capacity for a 25 hour work week with a progressive increase to full time hours and Dr Ryan who wrote that the plaintiff was fit for “usual hours of work”.[76] Furthermore, these estimates are wholly inconsistent with the revealed evidence of the plaintiff’s working capacity since March 2022, and it is one that I reject.
[76] Exhibit D1, DCB 32.
122I do not think a lot is gained by a review of the hours of work undertaken by the plaintiff in the period of her current job and referred to in the table extracted above. For example, it shows that in the April 2022 period when the plaintiff said she discussed with her doctors the need to reduce the hours she had been working because 18 hours a fortnight was unsustainable, her hours were reduced but then increased and peaked at 19.75 hours in the last pay period for May 2022. In the fortnight ending 10 June 2022 they reduced to 12 hours but in the fortnight that followed they increased to 15 hours. Whilst this is not a reduction by then to 14 hours a fortnight it is a far cry from 20 or 25 hours a week.
123I have also assessed the plaintiff’s account against the very favourable opinion
I formed of her work ethic that she has exhibited throughout the management of her work injury and including on her return to work so soon after her injury. I accept that she revealed a capacity to work up to 25 hours a week but also that after surgery she did not believe she would have been able to maintain that suite of hours because of pain and fatigue.124I have considered the report of Dr Bones and I am satisfied that her account that with time and adjustment to being back in the workforce, and adjusting to the work/family balance the plaintiff’s capacity for increased hours will improve with work hardening. Although Dr Bones believed it to be more likely than not, that the plaintiff will be unlikely to return to full time hours, she thought that the plaintiff may, in time, increase to 12-15 hours per week (spread over 3 days) although this may take a further 6-8 months. Elsewhere in her report, Dr Bones projected the plaintiff obtaining up to 20 hours a week. On whichever number of these anticipated hours is adopted as a realistic scenario, and an explanation for the difference in them was not clear, Dr Bones thought the plaintiff’s increased capacity would not present for some months still. Against this optimistic projection of anticipated increased work capacity, is the fact that the plaintiff has not exceeded 19 hours a fortnight in her current job since she commenced and in the main has been working 15 hours a fortnight or less and, indeed over one fortnight, a mere 12 hours. This does not augur well for the necessary work hardening that will be required.
125I have also taken into account that on 26 May 2022 the plaintiff attended on Dr Hargreaves who prescribed Tramal slow release with Panadeine Forte for breakthrough for pain management and he issued the most recent certificate of capacity that the plaintiff “can work 2-3 three non consecutive days – up to 2-3 hours per day, depending on fatigue and pain levels.”[77] Despite the defendant’s questioning of the timing of this attendance coming so long after a period without medical attention, I do not treat the plaintiff’s recourse for pain remediation as suspicious and, although the capacity Dr Hargreaves expressed in his certificate is less than he earlier identified, that it is so expressed, is consistent with his patient’s account to him of pain and fatigue and of the necessary prescribing of pain relief.
[77] Exhibit P9, PCB 186.
126Even if I regarded the plaintiff as obtaining a beneficial effect in pain management or rehabilitation by the undertaking of a course such as appears to have been suggested to her, but which the plaintiff has not yet undertaken, I am not satisfied there is evidence to indicate a likely dramatic improvement to the maximum hours the plaintiff thus far has proved capable of working or to increase the 14 hour fortnightly maximum working capacity the plaintiff has attested to that she believes is her capacity to the extent necessary to defeat the claim for pecuniary loss.
127Ultimately I am satisfied that the plaintiff has suffered a permanent loss of earning capacity of 40 percent or more and I am satisfied in any event that such a state of affairs is permanent.
Nabenet Suitable Employment Reports
128Because of my primary findings it is unnecessary to say much about the suitability for employment in the other positions identified in the Nabenet reports. The plaintiff was not cross-examined about the jobs identified as suitable employment in the Nabenet Suitable Employment Reports dated 29 August 2019 and 20 July 2021.
I initially expressed reluctance to accept the report into evidence because as I pointed out to Mr Smith in the course of his final address, the probative value was diminished by the absence of any of the positions being put to the plaintiff. In my judgment, it will not be sufficient for a defendant to assert that on an assumption a plaintiff has the capacity for a certain number of hours in a current job they will have the same earning capacity in other suitable employment. I asked Mr Smith if the purpose of the Nabenet report was limited “only to the question of potential hours” to which he said, “No, Your Honour, it's identifying suitable employment and then there's the comment from the occupational physician endorsing various of the options included in the Nabenet report.”[78][78] T57, L14-17.
129Ultimately, I considered it was unfair to receive the reports into evidence in the broad when the plaintiff was not afforded an opportunity to give evidence of her assessment of her skills to undertake the proposed alternatives jobs as suitable employment. For example, she might conceivably have a greater or lesser working capacity and earning capacity in one or other of them than she presents with in her current employment. Ultimately, however, I admitted the reports on the basis that the two positions referred to by the defendant in final address are comparable to the plaintiff’s current employment and carries the same rate of pay as her current employment. Dr Bones reported that in her opinion the plaintiff has a current capacity to undertake the duties of a mental health support worker identified in the Nabenet Report dated 20 July 2021 and is currently working in this role but in reduced hours. The earlier Nabenet report included a position described as an Administrative Assistant in Aged Care and Mr Smith submitted it was comparable to the modified duties the plaintiff encountered and worked at on her return to work following her injury and achieving up to 25 hours a week.
130Overall, it seems to me that it is more helpful to assess suitability by reference to the work the plaintiff has done, has displayed an aptitude and interest in and, in this case, work that I am satisfied the plaintiff is performing to her maximum capacity.
131Of course in a serious injury application the exercise I am called on to engage in does not always carry with it the advantage I have in this case whereby the injured worker is in employment and, often enough, the exercise required to be undertaken in assessing with injury earning capacity comes to be decided on “the material”. In any event, and for the reasons expressed I am satisfied that it is plain enough that the plaintiff does not have a work capacity sufficient to exclude a loss of earning claim whether in her employment or in the suitable employment referred to in the reports.
132Given the plaintiff’s concession at the commencement of the hearing, I will grant the relief sought and grant a certificate for pain and suffering and loss of earning capacity.
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