Cox v Colin Guest
[2015] VCC 1270
•16 September 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-10-04240
| Irene Cox | Plaintiff |
| v | |
| Colin Guest & Co & Victorian WorkCover Authority | Defendant |
---
JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3, 4 & 5 June 2015 | |
DATE OF JUDGMENT: | 16 September 2015 | |
CASE MAY BE CITED AS: | Cox v Colin Guest & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1270 | |
REASONS FOR JUDGMENT
---
Subject: Serious Injury Application
Catchwords: Pain and suffering and pecuniary loss damages; aggravation injuries; work related back injury; the nature of the injury; unrelated conditions; the extent of any residual earning capacity for suitable employment; the calculation of the without injury earnings figure.
Legislation Cited: Accident Compensation Act 1985;
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 [33];Jatayilake v Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Acir v Frosster Pty Ltd [2009] VSC 454; The Herald & Weekly Times Limited & Anor v Jessup [2014] VSCA 292;
Judgment: Leave Granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Nightingale | Arnold Thomas & Becker |
| For the Defendant | Mr D.Curtain Q.C. | Wisewould Mahoney |
with Mr P. Hamilton
HER HONOUR:
Introduction
1 The plaintiff, Irene Cox, sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to institute common law proceedings for pain and suffering and pecuniary loss damages. She initially alleged aggravation injuries to separate body functions, her spine and left lower limb arising out of or in the course of her employment as a full-time process worker with car parts manufacturer, Colin Guest & Co (the employer). The plaintiff’s application was, nonetheless, conducted on the basis that left lower limb symptoms were likely due to work-related injury to the L4/5 disc and aggravation of spondylosis in the lower back on 11 February 2008 (the back injury).
2 That the plaintiff suffered compensable back injury was not an issue in this application. I was told her claim dated 9 April 2008 was accepted and, following redundancy in February 2009, weekly payments of compensation were paid until 1 July 2011.[1] Evidently, an Impairment Benefits claim made on 21 March 2009 was also accepted.
[1] Exhibit P3
3 Under paragraph (a) of the definition of “serious injury”,[2] the plaintiff was required to prove: "permanent serious impairment or loss of a body function", on the balance of probabilities.
[2] Section 134AB(37)
4 "Permanent" refers to impairment: "likely to last for the foreseeable future".[3]
[3]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 [33]
5 Section 134AB(38)(c) of the Act provides that pain and suffering and loss of earning capacity consequences of the injury, when judged by comparison with other cases in the range of possible impairments or loss of a body function, must be fairly described as being more than "significant" or "marked", and as being at least "very considerable".
6 The plaintiff was also required to discharge the burden imposed by section 134AB(38)(e) which arises pursuant to (e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
7 The plaintiff was further required to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[4]
[4] Sections 134AB(38)(19)(b) and (38)(g)
8 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, she had a capacity for any employment which, if exercised, would result in her earning more than 60% of pre-injury earnings as determined in accordance with section 134AB(38)(f).
9 Section 5(1) of the Act defines "suitable employment" such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
10 If the plaintiff satisfied the loss of earning capacity requirements under section 134AB of the Act, she was entitled to leave to institute proceedings for both her pecuniary loss and pain and suffering damages, without further determination of the pain and suffering component of the application.
11 In assessing the consequences of the impairment or loss of function of the plaintiff's spine as a result of the injury, psychological or psychiatric consequences of the injury were disregarded.
The dispute
12 The plaintiff’s credit was not challenged. She presented as a straightforward witness. Despite the likely impact of time on her ability to recall earlier events, the plaintiff impressed as a credible witness, who appeared to do her best to accurately respond to questioning.
13 The dispute focussed on the following issues:
· the nature and the extent of the injury suffered and whether, as between competing expert opinions, the Court should prefer the opinions of the defendant’s experts, particularly orthopaedic surgeon, Mr Dooley and occupational physician, Dr Baynes. They concluded the injury involved aggravation of pre-existing degenerative disease of the lower spine without evidence of radiculopathy. On the other hand, the plaintiff’s expert, orthopaedic surgeon, Mr Schofield concluded the back injury had led to lumbar disc prolapse at the L4/5 level and radiculopathy affecting the left leg. Occupational physician, Dr Middleton concluded the plaintiff was suffering from discogenic pain with a significant component of neuropathic pain. He attributed the plaintiff’s condition to aggravation of asymptomatic age-related degenerative disease and derangement of the L4/5 disc. The latter involved disc protrusion at the L4/5 level as well as lumbar instability and irritation of the left L5 nerve root;
· disentanglement of the consequences of unrelated conditions, particularly those consequences relating to work-related left shoulder injury suffered in 2006 (the shoulder injury). The plaintiff conceded she continued to be troubled by symptoms from the shoulder injury. The defendant submitted she had not adduced evidence of the present state of this condition and its impact on her; and
· the plaintiff’s residual earning capacity (if any) for suitable employment. The specialists were unanimous in saying that the plaintiff was no longer fit to perform her pre-injury work. The defendant submitted the plaintiff had a light work back, whereas the plaintiff submitted she had no effective residual capacity for employment by reason of the back injury.
14 The plaintiff's calculation of her without injuries earnings figure (as determined in accordance with section 134AB(38)(f)), namely the sum that most fairly reflected her earning capacity had injury not occurred, was challenged. I will explain my approach to the economic loss claim and the calculation of the without injury earnings figure shortly.
15 As my discussion of the evidence shows in due course, I was satisfied that the plaintiff had established her entitlement to leave.
The evidence
16 Subject to some minor corrections, the plaintiff attested to the accuracy of three affidavits sworn on 12 May 2010, 24 September 2013 and 11 May 2015. She was cross-examined. Two of her medico-legal specialists, Mr Schofield and Dr Middleton, were cross-examined at length.
17 Both parties tendered extracts from their respective Court Books.
18 The materials tendered by the plaintiff comprised multiple reports from treating doctors; health professionals and medico-legal specialists; copies of radiological reports; a report from Evidex dated 1 June 2015 containing information about pay rates for various occupations, and a document summarising the plaintiff’s earnings from personal exertion for the years ending 30 June 2005 to 30 June 2011 inclusive.[5]
[5] Exhibit P5, Plaintiff's Court Book (PCB)
19 In addition to the documents extracted from the Court Book the plaintiff tendered a copy of the resume of Dr Middleton; a further short report dated 3 June 2015 from Evidex; copies of the Employer Injury Claim Report and the Worker’s Injury Claim Form both dated 9 April 2008; and the report of a further MRI of the plaintiff’s lumbar spine obtained on 27 March 2015 at the request of Mr Schofield.[6]
[6] Exhibits P1, P2, P3 and P4 respectively
20 The material tendered by the defendant from its Court Book comprised an affidavit sworn on 14 September 2010 by a director of the employee company, Andrew Guest; multiple medico-legal reports; copies of job advertisements and job descriptions sent to three of the defendant’s medico-legal experts; two Vocational Assessment Reports from Ayres Management Services dated 17 May 2012 and 7 August 2013 respectively; and a Workplace Physical Demands Report prepared by an employment placement consultant from The Recovre Group.[7]
[7] Exhibit D1, Defendant's Court Book (DCB)
21 Additional documents tendered by the defendant comprised a bundle of documents extracted from the clinical records of Dr Ly for the period 8 February 2013 to 19 September 2014; a chronology document; comparable wage records for two employees for the period 1 July 2007 to 30 June 2010; the defendant’s loss of earnings calculation document; Payroll Advice documents for the plaintiff for the period 1 July 2008 to 30 June 2009; and a Pay Rate Advice document for the period 1 July 2010 to 30 June 2011.[8]
[8] Exhibit D2 to, D3, D4, D5, D6 and D7 respectively
Background matters and unrelated conditions
22 The plaintiff is 51 years of age. Her education ceased at age 14 ½ when the plaintiff assumed the care of four younger siblings after their mother became ill.
23 From 1978 until the birth of her daughter in 1987, the plaintiff held various unskilled positions working in a supermarket, a grocery shop or in factories. After nearly 10 years, the plaintiff returned to the workforce, initially as a casual employee and later working full-time in a plant nursery. The plaintiff left this employment and on 17 July 2006 she commenced full-time process work with the employer.
24 As part of her job the plaintiff said she was required to place components assembled by machine into plastic crates. She was required to lift full crates off a roller and place these onto a pallet at floor level.
25 Apart from, in the plaintiff’s words: “a few niggles”, she denied she experienced back pain on a regular basis before 2008.[9] As far as I could tell, this assertion was not contradicted by other evidence.
[9] TN 16 and 17
26 On 12 December 2006 the plaintiff suffered the shoulder injury. This injury was treated with physiotherapy. The plaintiff was placed on light duties. She resumed normal duties following the Christmas break. Save for periods off work or on light duties due to the recurrence of pain, the plaintiff persisted with her normal duties until she suffered the back injury.
27 The reports submitted and the records kept by the treating physiotherapist, Ms McCarthy, recorded complaint and treatment in respect to the shoulder injury commencing some years before the back injury until after the plaintiff was made redundant in February 2009.[10]
[10] PCB 31-34 and 52-53
28 As mentioned, following the redundancy the plaintiff received weekly payments of compensation in respect to the back injury until 1 July 2011.
29 On 4 July 2011 orthopaedic surgeon, Mr Moran performed an excisional arthroscopy of the left AC joint. As I understood the evidence, the plaintiff received weekly payments of compensation in respect to the shoulder injury between July 2011 and late 2013. I was told, a serious injury application made for the shoulder injury was resolved on the basis of pain and suffering consequences only.
30 Importantly, despite any ongoing problems due to the shoulder injury, when she suffered the back injury the plaintiff had been working a full-time day shift between 7:40 am and 4:30 pm and performing normal duties.
31 Obviously, the claim made in respect to a separate body function, the left shoulder, raised issues about the consequences attributable to either condition and particularly whether and the extent to which impairment of the shoulder injury restricted the plaintiff’s capacity for suitable alternative employment. Under cross-examination the plaintiff agreed the shoulder injury still caused problems by restricting her capacity to lift and to work. However, the restrictions on her capacity to work due to impairment of the shoulder were not, the plaintiff said, as extensive as those consequent on the back injury. The medical evidence did not controvert this contention.
32 Various medical reports as well as Dr Middleton’s oral evidence helped place in context the impact on the plaintiff’s employment capacity due to the shoulder injury.
33 An overview of the medical evidence shows that most of the restrictions imposed by doctors were likely attributable to the back injury alone (the restrictions on bending/twisting and on prolonged standing or sitting to name a few). Other restrictions, such as the requirement the plaintiff avoid above shoulder height reaching, were likely referrable to the shoulder injury, although both the back injury and the shoulder injury likely contributed to the restriction on lifting. However, where they have addressed this issue, doctors have indicated improvement in the shoulder injury since surgery.
34 For instance, in 2013, the defendant’s occupational physician, Dr Barberis, noted significant improvement in the plaintiff’s shoulder condition following surgery. She relevantly considered the plaintiff’s capacity to perform alternative duties with respect to either the back injury or the shoulder injury. With respect to the shoulder injury, whilst there were restrictions on above shoulder height reaching; repetitive activity lifting greater than 5 kg with the left arm, Dr Barberis indicated the plaintiff was probably physically fit to perform the duties of a Sales Clerk, Retail Sales Assistant, Roster Clerk and Reservations Clerk on a full-time basis.
35 At hearing, Dr Middleton said there was incapacity for work by reason of the shoulder injury. However, allowing for reported improvement since surgery and the virtually normal range of movement demonstrated during clinical examination on 16 April 2015, he concluded the shoulder injury was now a lot better.
36 In these circumstances, I was satisfied the plaintiff had established on the evidence both the present state of the shoulder injury and, for the purpose of assessing her loss of earning capacity consequence in due course, the likely impact of the shoulder injury on her physical capacity for suitable employment.
37 Without being able to recall the details of this, the plaintiff agreed that in 2007 left knee pain and stiffness had been investigated and treated. The plaintiff, however, distinguished this pain from the leg pain experienced by her following the back injury. The latter, she said, involved pain running down the left leg, which stopped above the knee.[11]
[11] TN 18
38 The plaintiff has been treated for depression for some years now.
39 In late 2009 treating general practitioner, Dr Naidoo, referred the plaintiff to psychologist, Ms Storme for cognitive behavioural therapy sessions. Ms Storme’s report dated 20 June 2011 recorded that, during the 2 months over which therapy was undertaken the plaintiff’s complaints had focussed on the deleterious effect of back pain and left leg symptoms (“(s)he insisted her entire left side had become numb and she was unable to feel her left foot”[12]), on her capacity to work and perform domestic activities, on her overall independence and on her relationships.
[12] PCB 96
40 Both the plaintiff’s evidence and later reports submitted by Dr Naidoo, further recorded that the anti-depressant medication, Lovan, was prescribed in the treatment of depression from August 2010.
41 The affidavit sworn on 24 September 2013 was made in support of the now resolved application for leave to institute common law proceedings in respect to the shoulder injury. In this affidavit, the plaintiff expressed her belief, firstly, that she had largely recovered from depression developed following the back injury and the shoulder injury (I understood the latter to reference the deterioration of the shoulder condition particularly pre-surgery) and, secondly, that she had ceased taking the anti-depressant medication prescribed within 13 months due to its side-effects.
42 Whilst, as claimed, the plaintiff’s mental state probably had improved by September 2013, as at the date of hearing the evidence indicated the plaintiff still suffered from depression. In this regard, cross-examination and re-examination established the plaintiff was currently taking another antidepressant medication, Escitalopram, in the treatment of symptoms of depression and menopause and, in May 2015, she had been exempted by Centrelink from looking from jobs apparently due to both physical injury and depression.[13]
[13] TN 47-49 and 53
43 The plaintiff, nonetheless, insisted that virtually constant low back pain with frequent radiation of pain into the left buttock and leg was the major problem. Whereas, at times, her mental state had prevented job hunting, according to the plaintiff, physical impairment of her lower back had had a far greater impact on her capacity to work and engage in other activities. Examples of the latter involved an inability to lift and bend to work in the garden or to pick up nieces and nephews in the plaintiff’s words: “for a cuddle”.[14]
[14] TN 53
44 As my summary of the evidence shows in due course, in the final analysis, the plaintiff satisfied me that there existed a substantial organic basis for particularly the loss of earning capacity consequence on which the plaintiff relied due to chronic low back pain and left leg symptoms.[15]
[15] See Jatayilakev Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201, [19]; Fokas v Staff Australia Pty Ltd [2013] VSCA 230, [5]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
The circumstances in which the back injury occurred and treatment received prior to redundancy
45 On 11 February 2008, as the plaintiff bent to place a full crate (estimated to weigh between 20 and 25 kilograms) onto a pallet, she felt very strong pain in her lower back. Under cross-examination the plaintiff agreed that, apart from pain into her low back, she had not suffered referred pain at that point in time.[16]
[16] TN 19
46 The back injury was reported, a heat pack was applied and the plaintiff took anti-inflammatory medication, Nurofen. She had not been able to work a full shift and left about two hours before her usual finishing time.
47 The next day the plaintiff resumed her normal duties in the face of what she said was ongoing and worsening back pain, which she had tried to control with the anti-inflammatory medication, Nurofen Plus, consumed at the rate of 8 tablets daily.
48 The plaintiff first attended a doctor for treatment of lower back pain on 31 March 2008, nearly 7 weeks after the back injury. An appointment was made with Dr Fairweather after the plaintiff approached her supervisor in tears and reported she needed to see a doctor for back pain.
49 Dr Fairweather treated the plaintiff between 31 March 2008 and 19 January 2009.[17] He reported the plaintiff had not been able to recall a specific date of injury. Rather, the doctor said his patient had reported the slow onset of lower back pain whilst packing car parts at work.
[17] PCB 85-86
50 The plaintiff agreed that she had attended a Dr Sadauskas for treatment of unrelated conditions in the interval between 11 February 2008 and her attendance on Dr Fairweather, without notifying the this doctor of any back complaint. For instance, on 3 March 2008 the plaintiff attended Dr Sadauskas complaining of general abdominal pain, on 4 March 2008 she attended this general practitioner’s clinic for a blood pressure test and on 20 and 28 March 2008 she attended the same doctor in the treatment of a work-related left elbow injury suffered on 12 March 2008.
51 For the reasons summarised below, notwithstanding Dr Fairweather’s record of the first consultation, I have preferred the plaintiff’s evidence that:
i. the back injury occurred on 11 February 2008;
ii. before seeing Dr Fairweather she had attempted to control back pain with large daily doses of Nurofen and had persisted with work, despite back pain.
52 Firstly, having heard or read the evidence, the impression I formed was that, before and since the back injury, the plaintiff had been stoic in her approach to work and life.
53 Secondly, during re-examination the plaintiff was taken to a document from a register of incidents apparently signed by her and her supervisor, Sharon Butcher. This document recorded the injury on 11 February 2008 and the circumstances in which it was said to have occurred.[18]
[18] TN 51
54 Thirdly, the Employer Injury Claim Report dated 9 April 2008 further corroborated the plaintiff’s claim that, on 11 February 2008, she reported low back injury and the circumstances in which it had occurred to the supervisor.
55 Lastly, where the reports made to other health professionals dealt with the circumstances giving rise to the back injury, as a general rule, the account recorded was consistent with the onset of back pain in circumstances similar to those described in both the Claim Form and the Employer Injury Claim Report.[19]
[19] See for example the reports of Dr Gassin and Mr Kierce, PCB 91 and DCB 5 respectively.
56 Dr Fairweather said he arranged plain x-rays and CT scans on 31 March 2008 and 3 September 2008 respectively and referred the plaintiff for physiotherapy.
57 On 3 September 2008 the radiologist appeared to distinguish between the findings noted at different levels of the plaintiff’s spine when he reported that the CT scans had shown: “no significant disc bulge” at the L4/5 level and: “no visible disc bulge” at the L5/S1 level. The radiologist, nonetheless, reported evidence of minor facet joint degeneration at both levels (“(m)inor degenerative changes within the facet joints at the L4/5 and L5/S1 levels. No neurological impingement or other abnormality is identified”[20]).
[20] PCB 190
58 After 31 March 2008 the plaintiff was placed on modified duties. In his only report dated 28 May 2009, Dr Fairweather diagnosed lower back strain caused or aggravated by the plaintiff’s work duties.
59 The evidence of physiotherapist, Ms McCarthy, who had treated the back injury from 4 April 2008, helped me accept as plausible the plaintiff’s evidence that, firstly, she had used pain killing medication prescribed by Dr Fairweather to control pain and, secondly, she had persisted with modified duties, despite some of these activities aggravating lower back pain.
60 Under cross-examination, the plaintiff agreed with the proposition that the physiotherapist had anticipated a return to normal work duties in May 2008. Nevertheless, as the Physiotherapy Management Plan showed, the physiotherapist’s prediction had only been an estimate proffered on the first day of treatment on 3 April 2008.[21]
[21] PCB 39-40
61 A clinical note kept by the physiotherapist, to which the plaintiff was taken under cross-examination, apparently recorded a report of injury to the plaintiff’s leg after kicking a foot pedal at work in May 2008.[22] The plaintiff contested the accuracy of this note. Rather, she attributed the attendance in May 2008 to the onset of numbness in her left leg when depressing the pedal with her left foot.
[22] TN 25-26
62 I have accepted the plaintiff’s account in this regard, because it accorded with the content of a letter written by the physiotherapist to the employer less than 4 months after the back injury, on 2 June 2008. In this letter the physiotherapist invited discussion of ways in which to solve the plaintiff’s complaint that working on a certain machine aggravated back pain.[23] According to the letter, prolonged standing on the plaintiff’s left leg and use of her right foot to manoeuvre the pedal worsened her pain.
[23] PCB 41
63 In summary then, the physiotherapist reported her patient was suffering from discogenic lumbar spine pain aggravated by some of her work activities. The plaintiff had continued to report problems tolerating various work activities involving bending, lifting loaded crates, twisting or involving sustained positions of flexion and, on 17 September 2008, she had complained of back pain after pushing open a door a day earlier.
64 During 2008 the plaintiff presented for medical assessment of and treatment for other unrelated conditions: a left knee problem in April/May 2008; a sensory nerve problem affecting the plaintiff’s elbow in May 2008; a carpel tunnel condition affecting her left wrist in May 2008; a hernia problem in August 2008; and a diagnosis of diabetes in November 2008. Based on my understanding of the evidence, none of these conditions incapacitated the plaintiff for work prior to redundancy.
65 The plaintiff appeared to believe that she tried without being able to sustain her normal duties before the redundancy in February 2009. I could not verify this claim. Rather, based on the records made, particularly the Physiotherapy Review documents, I concluded the plaintiff had likely remained on modified duties for the period between April 2008 and the redundancy. Further, by reason of the back injury, as claimed, the plaintiff had likely struggled to perform these duties and had likely modified her domestic and recreational activities to accommodate her back condition. [24]
[24] PCB 42-45 and 89
66 Whilst acknowledging improvement in her back condition after she ceased work-related activities involving repetitive bending, heavy lifting or standing at a bench, the plaintiff, nonetheless, asserted that activities involving heavy lifting, repetitive bending or prolonged standing in her domestic environment had continued to cause flare-ups in pain.[25]
[25] TN 30
Treatment subsequent to redundancy and earlier assessments of fitness for work
67 The plaintiff said she changed her general practitioner because she had been dissatisfied with Dr Fairweather’s management of her condition.
68 I could not ascertain from the multiple reports tendered the date from which general practitioner, Dr Naidoo, commenced treating the plaintiff’s back injury at the Beach Street Family Medicine clinic. I proceeded on the basis that it was likely shortly before the plaintiff’s consultation with musculoskeletal physician, Dr Gassin on 25 March 2009 on referral from Dr Naidoo.[26]
[26] PCB 91-93
69 Having considered the content of Dr Gassin’s only report, I formed the view that any misapprehension that the plaintiff had continued performing her normal work duties until 3 April 2009 had not lessened the reliability of this report to the plaintiff’s solicitors. The salient features of the report dated 16 April 2009 are summarised in point form below:
· the plaintiff reported intermittent throbbing pain throughout her lumbar region more severe on the left. When severe, the pain radiated down the left leg to the knee;
· pain was brought on and aggravated by most activities. This caused difficulty with prolonged walking, with house work and in performing activities the plaintiff previously enjoyed, such as gardening and walking her dog;
· pain was partially relieved by physiotherapy. At the time, the plaintiff was taking Panadeine Forte for pain;
· the plaintiff reported pain prevented her from resuming work;
· Dr Gassin found a decreased range of lumbar extension and flexion. Testing of the plaintiff’s hips caused complaint of left groin pain. The plaintiff further complained of tenderness to palpitation at the levels L4 to S1, which was more severe on the left side;
· as far as I could tell Dr Gassin did not review the radiology. Rather, based on the clinical findings and the results of the CT scan obtained on 3 September 2008, Dr Gassin concluded that one or more of the plaintiff’s low lumbar discs or the facet joints were causing low back pain. He recommended the plaintiff persist with core strengthening exercises under the supervision of a physiotherapist, presumably pending confirmation that the WorkCover insurer would fund bilateral L3 to L5 medial branch blocks and/or radiofrequency neurotomy of lumbar facet joints. As we now know funding was not forthcoming and the investigations contemplated by Dr Gassin were never pursued;
· in April 2009, Dr Gassin considered the plaintiff unfit to return to her pre-injury employment. Pending full investigation and treatment, he offered a guarded prognosis.
70 At this juncture it is convenient to mention the evidence of orthopaedic surgeon, Mr Kierce. He first examined the plaintiff at the request of the insurer on 19 May 2009. On this occasion, the plaintiff indicated central low back pain with radiation out to both buttocks and down the outer aspect of the left thigh. Notably, Mr Kierce assessed the plaintiff as a: “highly motivated” individual, who had not exhibited abnormal pain behaviour during the examination.
71 Mr Kierce diagnosed work-related aggravation of pre-existing lumbar spondylosis, one consequence of which was that he too considered the plaintiff unfit for her pre-injury employment. Notably, Mr Kierce’s diagnosis was also based on a review of both the plain x-ray film and the CT images. His interpretation of the latter images was that they: “showed slight bulging of the lumbosacral disc with minor facet joint degeneration at that level.”[27]
[27] DCB 11
72 In correspondence dated 19 October 2009, Mr Kierce recommended liability for the investigative procedures outlined in Dr Gassin’s report be declined. Evidently, Mr Kierce had already concluded the plaintiff’s pain was discogenic in origin; that is to say, pain was caused by degenerative arthritis (the slightly bulging disc seen by him on the scans) at the L5/S1 level. In his opinion, facet joint injections were unlikely to offer the plaintiff significant relief. I will discuss the radiology, as well as Mr Kierce’s evidence in more detail shortly.
73 Accordingly, in early 2009 two specialists had concluded the pain reported by the plaintiff was likely discogenic in its origin.
74 In the first of eight reports submitted by Dr Naidoo to the plaintiff’s solicitors between 4 May 2009 and 17 March 2015, the general practitioner noted a history of the onset of lower back pain in association with a heavy lifting incident at work.[28]
[28] PCB 54-55
75 I understood from the report made, Dr Naidoo had initially believed that the plaintiff’s back pain was predominantly visceral somatic pain (pain emanating from tissue in the spine such as muscles, ligaments, bones or joints) with a small element of radicular pain. In short, the general practitioner had not found convincing evidence of nerve root irritation or compression. At the time, Dr Naidoo assessed the plaintiff fit for employment, subject to restrictions on repetitive bending, on lifting more than five kilograms and on twisting.
76 As the later reports, submitted either to the insurer or the plaintiff’s solicitors during 2010, 2011, 2012, 2013 and 2015, have shown, the doctor’s understanding of the nature of the injury and underlying lower back pathology altered at or around the time he received the results of the MRI investigation ordered by him in August 2009.[29]
[29] PCB 59-84
77 Evidently, by August 2009 the plaintiff’s presenting symptoms warranted further investigation. The radiologist’s report of the MRI investigation on 19 August 2009 indicated, among other things, that Dr Naidoo had directed investigation of potential left L4/5 nerve root compression. On that occasion, the radiologist reported a normal L5/S1 disc and evidence of mild degenerative change of the L4/5 facet joints. However, of particular significance in this case, was the radiological findings reported at the L4/5 level – mild desiccation and a left posterior annular disc bulge at the L4/5 disc without evidence of focal disc protrusion or neurocompressive lesion.[30]
[30] PCB 191
78 Thereafter, the treating general practitioner reported in the following terms:
· the plaintiff was suffering from work-related chronic lower back pain and left shoulder pain. Her prognoses were guarded;
· without differentiating between back and shoulder conditions, the plaintiff was permanently incapacitated for her pre-injury duties;
· in view of the lack of improvement in the plaintiff’s condition, he did not envisage any future capacity to perform her pre-injury duties.
79 Under cross-examination the plaintiff was taken to various medical records. The plaintiff’s responses to this cross-examination and during re-examination helped establish the following matters:[31]
[31] TN 36-56
· as recorded, on 15 May 2009, she had demonstrated 75% of the full range of movement of her back;
· other than on 11 June 2009 when she complained of back pain, the seven or eight attendances at the clinic between 1 June 2009 and 7 August 2009 were for treatment of unrelated injuries;
· on 19 August 2009 she complained of episodes of incontinence and some numbness in her leg when her back was really sore, although she had not experienced that symptom recently;
· on 19 August 2009 she underwent MRI investigation of her lower back, which had reported a disc bulge;
· three further attendances between 29 September 2009 and 13 October 2009 had not involved the back injury;
· an attendance on 26 October 2009 involved a complaint of numbness in the left leg and pain in the left shoulder, neck and left elbow;
· an attendance on 27 October 2009 had not involved complaint about the back injury;
· Dr Naidoo had referred her to psychologist, Ms Storme. When first seen on 23 November 2009 among other things, the plaintiff had reported bulging discs; back pain after moving around; and had “whinged” to the psychologist about the insurer. By way of explanation the plaintiff said she had not been able to return to her heavy pre-injury duties. In response to an invitation from the Ayres Management Services’ vocational officer to write down details of lighter duties she would like to perform the plaintiff had, she said, expressed interest in participating in beautician and computer courses. The plaintiff indicated she had been frustrated by the insurer’s refusal to fund the former evidently because this was deemed a career change;
· she had advised the vocational officer she had not wanted to be pushed into a job she hated, namely process work. The plaintiff told the Court she had been dissatisfied with the résumé prepared on her behalf. The latter apparently referenced skills the plaintiff did not have, such as computer skills and other skills for employment as a receptionist, in clerical jobs and possibly as a clerk of courts;
· the psychologist had been advised she was bored and frustrated and angry about the WorkCover system;
· on various dates between 24 November 2009 and 8 December 2009 she attended the clinic and underwent radiological investigations for unrelated injuries;
· as noted by Dr Naidoo in a letter of referral to the physiotherapist dated 3 February 2010, she had found (and at the date of hearing still found) both the shoulder injury and the back injury caused difficulty in cleaning the bath, making the bed and vacuuming. However, the shoulder injury had caused difficulty in hanging up the washing whereas the back injury had caused difficulty in gardening for more than 20 minutes. The referral to Ms McCarthy in February 2010 had been for treatment of the shoulder injury;
· in March 2010 she had a cortisone injection into her left shoulder;
· on 16 April 2010 she complained of back pain and sharp pain in the left leg with numbness in her toes after sitting for a long period. This had been the first attendance on her GP for treatment of the back injury in many months;
· in July 2010 MRI investigation revealed left shoulder subacromial bursitis and other structural issues;
· in August 2010 she commenced taking anti-depressant medication;
· in September 2010 the plaintiff complained that both her shoulder and back were playing up. There had been a plan to increase the dosage of the medication, Lyrica originally prescribed by Dr Naidoo;
· in the period between January 2011 and July 2011 she underwent further investigation of the shoulder injury. In July 2011 orthopaedic surgeon, Mr Moran performed an arthroplasty of the acromioclavicular joint. He informed the plaintiff the chronic shoulder girdle pain involved elements of referred upper back and neck pain;
· in September 2011 Mr Schofield ordered MRI investigation of her lumbar spine. The plaintiff had understood this revealed minimal bulging of the L4/5 disc;
· in February 2013 she commenced seeing Dr Ly. The plaintiff said the change of doctors had been influenced by the distance required to travel to Dr Naidoo’s surgery and by this doctor’s tardiness in providing reports to her solicitor;
· after surgery, she continued to suffer shoulder pain and disability. In April 2013 the plaintiff complained of low back and shoulder pain;
· on 24 June 2013 she complained of back pain after leaning over a towel rail. The plaintiff had been referred for physiotherapy;
· in about August 2013 she commenced working for The Splashback Company (Splashback). During this period the plaintiff attended her doctor complaining about some urge incontinence;
· in October 2013 she attended the Beach Street Family Medicine clinic and complained of right shoulder pain. The plaintiff underwent radiological investigation on 7 October 2013;
· on 31 October 2013 the plaintiff attended Dr Ly and complained of neck pain since injuring her shoulder. On the same day she underwent x-ray investigation of her cervical spine;
· having complained of stress incontinence for a year, on 14 February 2014, the plaintiff was referred to a specialist;
· on 18 March 2014 she attended complaining of tenderness in her right AC joint;
· on 21 May 2014 she complained to Dr Ly of left sciatica, that is pain travelling down her left leg from her back;
· from June 2014 she ceased attending the Beach Street Family Medicine clinic. Her records were transferred to Dr Ly’s practice;
· on 3 June 2014 she presented to the Outlook Drive Medical Centre with a frozen left shoulder. Further surgery in about September 2014 had not resolved all of the left shoulder problems;
· the next consultation in relation to the back injury was in March 2015 when Mr Schofield examined the plaintiff and referred her for repeat MRI investigation (based on the report made the consultation was probably in May 2015, after the repeat MRI investigation in March 2015);
· on 26 April 2015 she attended the West Gippsland Hospital Emergency Department for treatment of severe back pain after lifting a tray of kitty litter the day before. I note that in her final affidavit the plaintiff said this lifting incident had caused severe pain radiating into her left leg with muscle spasm. The report from the Hospital, among other things, attributed the event to a reportedly long standing disc bulge at the L4/5 level. After some hours the plaintiff was sent home with Endone and Valium and advised to follow-up with her general practitioner if required;[32]
· in addition to pain killing medication, the plaintiff continued to exercise. The plaintiff performed daily back exercises to the best of her ability. These were learnt either from a sports clinic or her physiotherapist. She used an exercise bike three times weekly and she tried to go for a walk, sometimes for as little as 20 minutes.
[32] PCB 171-172
80 Dr Ly’s reports were written in the latter part of 2014.[33] They indicated a likely confusion by the doctor in his understanding of the histories for the back injury and the shoulder injury.
[33] PCB 99-102d
81 Dr Ly repeated the findings reported following the MRI scans on 13 September 2011 as his diagnosis of injury. Among other things, he noted ongoing complaint of intermittent back pain radiating down the plaintiff’s left leg. In December 2014 Dr Ly indicated a capacity for light duties but cautioned against returning to any employment that might trigger back pain.
Expert interpretation of the radiology and diagnoses
82 Mr Schofield ordered the additional radiology obtained after the first MRI investigation in August 2009. He ordered horizontal and weight bearing X-ray film of the lumbar spine on 16 August 2011; MRI of the lumbar spine on 13 September 2011; MultiPositional MRI of the lumbo-sacral spine on 14 November 2011; and MRI of the lumbar spine on 27 March 2015. The results were as follows:
· the plain x-rays of the lumbar spine were obtained on the same date as the first of Mr Schofield’s examinations. The results were not tendered. However, when Mr Schofield reviewed the erect functional views, he noted evidence of plate osteophyte formation at the L/5 level but no evidence of instability or significant compression at L4/5;
· according to the radiologist, the further MRI imaging obtained on 13 September 2011 indicated: “(m)inimal left lateral foraminal L4/5 disc prominence, no neural contact or compromise. No neural compressive focus identified, or canal – foraminal compromise”;[34]
· in keeping with the report received, the Multipositional MRI scan of the lumbo-sacral spine obtained on 14 November 2011, less than 2 months after the repeat supine MRI, revealed a minimal posterior diffuse disc bulge at the L4/5 level causing minimal canal and mild bilateral recess stenosis, just contacting both the L5 descending nerve roots without demonstrating displacement or nerve root oedema.[35]
· after comparison had been made with the September 2011 MRI images, the repeat supine MRI obtained on 27 March 2015, reported no significant change at this level: “There is mild broadbased left foraminal disc protrusion, although this does not contact any exiting nerve root….No central or neuroforaminal stenosis”.[36]
[34] PCB 156
[35] PCB 193-194
[36] Exhibit P4
83 Based on these results, the defendant’s submission that the scans, whether upright or supine had not revealed radiological evidence of more than minimal changes and certainly not evidence of frank rupture or impingement, was correct. However, as my discussion of the expert evidence below shows, where this was known to them, the reported result of any radiological investigation was only part of the evidence on which the experts based their diagnoses.
Mr Schofield
84 Mr Schofield is an 80 year old orthopaedic surgeon with many years’ practical experience as a surgeon prior to his retirement four years ago and with many year’s experience as a medico-legal expert in personal injury cases. At times during cross-examination he presented as defensive and, at other times, he struggled to reprise the information and opinions contained in reports submitted in this application. Indeed, Mr Schofield appeared surprised to learn from reading the report at hearing that the plaintiff was seated either in a neutral or dynamic pose but not standing, when the upright MRI scans ordered by him were obtained in November 2011.
85 Lengthy cross-examination certainly exposed some inaccuracies particularly around Mr Schofield’s discussion of the radiological material but did not challenge the clinical findings made or, in my view, entirely undermining his evidence. My discussion of his evidence in the paragraphs that follow helps explain my conclusions in this regard.
86 The defendant placed particular reliance on the reported results of the CT investigation obtained within seven months of the back injury. Despite the changes in the language used by the radiologist, senior counsel submitted these results should be understood to mean that in 2008 no bulge had been apparent to the radiologist at either level. I disagree.
87 Mr Schofield, who had not viewed the CT images, believed the language used by the radiologist in 2008 left open the possibility of a bulge or swelling at the L4/5 level but not, as the radiologist had stated, a significant one.[37]
[37] TN 71-73
88 The dispute at hearing about the proper interpretation of the CT scans arose in the context of much toing and froing during cross-examination about Mr Schofield’s initial diagnosis of an acute annular rupture of the L4/5 disc.
89 Mr Schofield saw the plaintiff for the first time on 16 August 2011. The plaintiff had reported back pain with referred left buttock pain radiating to the back of the knee (“These symptoms are there all the time” [38]), with a feeling that her left leg was slightly weak.
[38] PCB 144
90 Clinical examination had revealed a number of signs: low lumbar tenderness on the left of the midline; reduction in the range of spinal flexion; reduction in the range of and painful extension; left-sided pain on lateral flexion; straight leg raising to 90 degrees with pain on the left side and left buttock pain; and altered sensation over the outer left calf and thigh.
91 Having read his reports and heard his evidence, I concluded that, from the outset, Mr Schofield had not been satisfied the earlier radiology, including the MRI imaging from August 2009 (which had identified a left posterior annular bulge at the L4/5 level without evidence of focal disc protrusion or neurocompressive lesion) and the plain x-rays obtained by him on 16 August 2011, revealed the true extent of the underlying pathology likely responsible for the plaintiff’s back pain and left leg symptoms.
92 The diagnosis of acute rupture of the lower lumbar disc proffered in August 2011 was no doubt informed by all of these matters and by the history given of an acute onset of back pain and referred left leg pain. As we know from the earliest reports from treating doctors and from the plaintiff’s evidence, the onset of left leg pain probably occurred within months, not immediately. This evidence and the findings reported following the first of the supine MRI investigations in August 2009, lessened the likelihood of an acute tearing of the annulus as a result of the work-related incident in February 2008 but not the possibility of discal injury.
93 In any event, from the date he first examined the plaintiff in August 2011, Mr Schofield pursued a course of radiological investigation through which he expected to confirm his clinical assessment that discal injury, that is a prolapse affecting the left L5 nerve, was responsible for particularly the left leg symptoms.
94 As we know from the radiologist’s report and a later report written by Mr Schofield, the repeat MRI scan on 13 September 2011 confirmed pathology at the L4/5 level without providing radiological evidence of neural compression or canal or foraminal compromise.[39]
[39] PCB 148-149
95 Mr Schofield, nevertheless, and, as it turned out correctly, believed an upright scan would better demonstrate the effect of weight bearing (albeit on this occasion only while seated) on the injured disc.
96 In a letter dated 2 December 2011, Mr Schofield apparently accurately recounted the substance of the results of the upright scans as reported by the radiologist. Accordingly, it could not be said his analysis of the results of the scans had been compromised by any failure to appreciate (whether this was in December 2011 or at the date of hearing) that the plaintiff was seated, not standing, when the upright scans were obtained in November 2011.[40] Those parts of the letter containing details of the results of the scans and his analysis are extracted below:
[40] PCB 151-153
Upright MRI scan was done in Sydney on 14 November 2011 and the report of this is enclosed. Whereas the supine MRI scan one month prior to the upright MRI scan showed degeneration without prolapse localised to L4/5, the upright MRI scan did show evidence of a minimal posterior disc bulge at L2/3, a normal disc at L3/4 and a minimal posterior diffuse disc bulge causing minimal canal and mild bilateral recess stenosis at L4/5. The lumbosacral disc was considered to be normal.
The conclusion reached was that the most marked changes were confined to the L4/5 where there was lateral recess stenosis bilaterally just contacting both L5 nerve roots and a central bulge.
…
This upright MRI scan has noted the effect of weightbearing on a degenerative disc which was shown to be seen on plain x-ray and although it was reported as demonstrating degeneration on the supine MRI scan, the non-weightbearing position of the previous MRI scan failed to show any evidence of weakening of the posterior annulus.
The current upright MRI scan does show evidence of recess stenosis in both descending nerve roots.
The symptoms in her left buttock can therefore be explained on the current MRI scan as well as her symptoms of aggravation when sitting for standing and relief flexing her spine when lying in bed (sic).
97 Mr Schofield re-examined the plaintiff on 5 May 2015, some months after the repeat MRI imaging was obtained on 27 March 2015. On this occasion, he apparently read and, as the report shows, summarised information contained in a large number of reports submitted by treating doctors as well as the earliest of Mr Kierce’s reports.[41]
[41] PCB 157-170
98 In May 2015, the plaintiff apparently reported no significant improvement in her condition. Mr Schofield diagnosed chronic back pain and referred left leg pain due to work-related development of a posterior annular disc disruption causing a central disc prolapse. He predicted symptoms of pain, sciatica, loss of balance and weakness affecting the left leg would continue to impact all aspects of the plaintiff’s life. Mr Schofield indicated he could not rule out surgery in the future should the activities of daily living further weaken the annulus.
99 I will address the current expert assessments of the plaintiff’s capacity for employment separately in due course. For present purposes, I understood that Mr Schofield’s opinions had been formed having regard to the various matters summarised in the following dot points:
· there had been complaint of ongoing low back pain and referred left sciatic pain radiating to the left knee;
· the plaintiff’s symptoms were aggravated by any walking, especially descending stairs where (as confirmed by the results of his clinical examination noted below) there was likely weakness in the quadricep mechanism which caused the leg to give way;
· the plaintiff reported trouble balancing on her left leg such as when dressing and lifting her right leg and difficulty squatting due to stiffness and pain. This apparently impacted on her capacity to perform housework, shop, cook and dress;
· clinical examination revealed tenderness in the mid-line at the level of the lumbar sacral spine without evidence of buttock wasting; reduction in the plaintiff’s ability to bend forward to little more than 50% of the normal range; reduction in her ability to extend beyond 10 degrees; evidence of some wasting of the left calf and thigh with three centimetres in the left thigh and two centimetres in the left calf; restriction in straight leg raising on the left side to about 80 degrees, which reproduced buttock pain; on testing hypersensitivity on the outer aspect of the left leg, this was more acute above the knee than below and was consistent with L4 distribution; and reduction in the left ankle jerk. Mr Schofield’s evidence during re-examination helped emphasise the diagnostic role of the clinical findings and likely deterioration in the objective physical signs subsequent to his earlier examination.[42] Firstly, the wasting found was a new finding and, as the doctor said this indicated the left leg was not functioning as well as the right. Secondly, the reduced straight leg raising result for the left leg was a positive if not gross sign. Thirdly, the hypersensitivity found was anatomically consistent with a L4 and, more likely, a L5 distribution and, lastly, the reduction in the left ankle jerk was consistent with problems at the lumbosacral disc as well;
· the most recent MRI scans had confirmed pathology at the L4/5 level without revealing any significant change from the finding reported from the earlier supine MRI investigation in September 2011. The protrusion to the left side established by the most recent scan was, Mr Schofield said, consistent with the clinical signs of radiculopathy.
[42] TN 102-103
100 Under cross-examination, Mr Schofield effectively conceded he had been wrong when, in August 2011, he reported the CT scans had shown evidence of a posterior annular rupture of the L4/5 disc soon after the accident. He nonetheless, held fast to his opinion that the radiologist’s report obtained some months after the workplace incident had left open the possibility of there being evidence of swelling and to his opinion that the back injury had likely involved discal injury which was responsible for the symptoms and signs arising from the plaintiff’s back and affecting her left leg.
Mr Kierce
101 I have already mentioned the evidence of one of the defendant’s orthopaedic specialist’s, Mr Kierce. He had reviewed the CT scans when, in May 2009, he reported radiological evidence of a bulge at the L5/S1 level.
102 Mr Kierce re-examined the plaintiff for the last time on 4 February 2010.[43] He reviewed the MRI scans obtained in August 2009. This time, however, Mr Kierce essentially confirmed the reported findings of the radiologist when he advised the insurer the scans showed evidence of degeneration of the L4/5 disc, which was bulging to the left but not pressing on any nerves.[44]
[43] DCB 18-27
[44] DCB 24
103 In February 2010, Mr Kierce concluded the complaints of continuing back pain and limitation of back movements were related to the plaintiff having injured the L4/5 disc in the course of her work. He diagnosed lumbar spondylosis particularly affecting the L4/5 disc aggravated by the plaintiff’s occupation without any involvement of neurological structures. There was, he said, a retained capacity for suitable alternative employment as well as for the activities of daily living.
104 Both in 2009 and 2010 Mr Kierce clearly linked the discal pathology he saw in the radiology to the work-related incident two years earlier in February 2008. However, the results of his clinical examination on each of the occasions he examined the plaintiff had not also indicated neurological abnormalities.
Mr Billet
105 When orthopaedic surgeon, Mr Billet, examined the plaintiff on 9 November 2010 at the request of the defendant, among other things, he found symptoms indicative of neurological deficit due to a discal problem to the left side of the lumbar spine at the level of L4/L5. These involved decreased muscle power of the left extensor hallucis longus, decreased sensation in the left lateral thigh in response to light touch and a decreased left ankle jerk.[45]
[45] DCB 42-45
106 Relevantly, Mr Billet diagnosed work-related soft tissue injury to the lower lumbar region and aggravation of underlying pre-existing, constitutional, age-related degenerative changes. The injury had, he said, made the degenerative changes symptomatic and, of greater importance, the injury had led to a discal problem on the left side of the lumbar spine at L4/L5.[46] Unsurprisingly, the plaintiff relied on this evidence.
[46] DCB 44
107 Mr Billet considered the plaintiff fit to return to part-time work where the plaintiff could sit or stand at will and where there were restrictions on bending and on lifting weights up to 8 kg.
108 Mr Billet’s further report dated 16 June 2011 was confined to the issue of whether surgery was required for the shoulder injury.
109 The evidence summarised so far helped establish a number of matters. Firstly, it demonstrated how readily a radiologist and a surgeon might differ in their interpretation of the same scans and why radiological findings are not considered conclusive evidence of the nature and extent of underlying pathology. Secondly, despite the absence of radiological evidence of rupture of the annulus at the L4/5 level, Mr Schofield was probably correct when, at hearing, he said the radiologist had left open the possibility of a disc bulge or swelling. Lastly, clinical examination by two orthopaedic surgeons, in 2010 and in 2011 had noted symptoms affecting the plaintiff’s left lower limb indicative of a left-sided discal problem.
Dr Middleton
110 When occupational and rehabilitation consultant, Dr Middleton reported to the plaintiff’s solicitors he repeated the results of the x-ray film and the CT scans obtained in 2008, the MRI scans obtained in 2009, the upright scans obtained in 2011 (to the extent that these had been recorded by Mr Schofield’s letter dated 2 December 2011) and the results of the MRI scans obtained in 2015.
111 Dr Middleton is a qualified medical practitioner with 40 plus years’ experience in occupational medicine. He holds a Post Graduate Diploma in Occupational Health from Monash University and specialises in occupational and rehabilitation medicine, including pain management. He is an Accredited Medical Examiner and Assessor and a Professional Member of the Safety Institute. Dr Middleton told the Court he had been responsible for establishing a program at La Trobe University for the management of chronic pain.
112 When weighing the expert evidence on both sides, I was satisfied that by reason of Dr Middleton’s formal qualifications and long experience in the field of occupational medicine, he was very well-placed to give the evidence expressed in some detail in two lengthy reports.
113 Dr Middleton examined the plaintiff twice, on 21 November 2011 and 16 April 2015. On the first of these dates, Dr Middleton took a history of the onset of work-related lower back pain in association with the lifting of crates on 11 February 2008. The plaintiff complained of pain across the lower lumbar spine radiating into both buttocks, extending into the left leg and, according to the doctor, this covered the distribution of the lateral cutaneous nerve.
114 Clinical examination revealed the main area of tenderness at the L4/5 level, with some tenderness also at the L5/S1 level, numbness in the thigh in the area represented by the left lateral cutaneous nerve and reduction in the range of movement in the plaintiff’s lumbar spine.
115 At the time, Dr Middleton noted the reported results of the plain x-ray and CT scans of the lumbar spine obtained in 2008 as well as the reported results of the MRI imaging obtained in August 2009.
116 Dr Middleton diagnosed: “an acute straining of the lumbosacral spine, particularly at L4/5 and L5/S1 aggravating both the underlying degenerative facet joint disease at these two levels and the degenerative disc disease particularly at the L4/5 resulting in discogenic pain down the left leg (sic)”.[47] Dr Middleton opined that repetitive bending and lifting in the performance of the plaintiff’s work duties between the date of the back injury and redundancy had likely intermittently aggravated left leg pain.
[47] PCB 120
117 On 16 April 2015, the plaintiff described pain across the lumbar sacral region extending down the lateral aspect of the left thigh accompanied by a numb, ice-cold, burning sensation. The plaintiff apparently reported she had to take weight off her left leg when pain was severe and had difficulty descending stairs because this caused shooting pain up the left leg.
118 Clinical examination again revealed tenderness at the L4/5 and L5/S1 levels as well as across the anteriorsuperior iliac crest. Dr Middleton also found sensation dulled and irritable in the distribution of the left lateral cutaneous nerve, a negative sciatic stretch test, straight leg raising reduced on the left side and a moderate reduction in movements of the thoracolumbar spine.
119 In April 2015 Dr Middleton noted the results of the recent repeat supine MRI scan. As part of his analysis of multiple medical reports submitted by the treating health professionals up to and including December 2014, he also noted Mr Schofield’s discussion of the results of the upright MRI scan and the diagnosis contained in the surgeon’s December 2011 correspondence.
120 On this occasion, Dr Middleton opined the incident on 11 February 2008 had aggravated: “a previously asymptomatic age-related degenerative lumbar spine disease resulting in derangement of the L4/5 disc resulting in disc protrusion at that level, lumbar instability and irritation of the left L5 nerve root with discogenic pain with a significant neuropathic component to that pain which persists (sic).”[48]
[48] PCB 138
121 The suggestion by the doctor that the injury had led to lumbar instability and referred leg pain was challenged at hearing. In summary, the evidence given by Dr Middleton on this issue was to the following effect:
· he agreed with the general proposition that nerve pain or altered sensation was caused by nerve damage/inflammation or narrowing of the foraminae causing contact with the nerve;
· in concluding there was evidence of lumbar instability, he relied on the reports of pain, the clinical findings and the results of the upright MRI scan, the latter showing contact with the nerve exiting the foraminae;
· he agreed the results of the MRI scan obtained on 27 March 2015 had not shown any significant changes from the results obtained on 13 September 2011 and the only derangement evident from this scan was minimal. However, as I understood the doctor’s evidence, in accepting the radiologist’s most recent finding in the repeat supine scan he had not thereby resiled from his reported opinion that the plaintiff suffered from both mechanical and neuropathic pain. The results of the supine MRI scans obtained before and since the upright scan were similar but differed from the results of upright scan. The latter had demonstrated the effects of weight bearing by showing that the posterior diffuse disc bulge at the L4/5 level created canal (minimal) and bilateral recess stenosis (mild) and was just contacting the descending nerve roots. The plaintiff had continued to report pain, which the doctor believed was neuropathic in origin and derived from instability at the L4/5 level and irritation of the left L5 nerve root in the treatment of which she was prescribed a medication typically used in the treatment of neuropathic pain, Lyrica.
122 When taken to various aspects of the evidence of the defendant’s doctors, which is summarised shortly, Dr Middleton relevantly indicated as follows:[49]
[49] TN 125-130
· he appeared to agree with parts of Dr Baynes’ opinion in 2011 (which were repeated in Dr Baynes’ final report in 2015) where he indicated the plaintiff was suffering from chronic intermittent discogenic lower back pain without objective evidence of radiculopathy. Dr Middleton, nonetheless, held to his opinion that the plaintiff was suffering from lower back pain as well as pain down her leg;
· whilst in September 2011 Dr Baynes had noted: “some evidence of abnormal illness behaviour with positive Waddell’s signs although Ms Cox did present in a straight forward manner”,[50] Dr Middleton, who agreed he had not applied this test, nonetheless, confirmed he had not seen evidence of the plaintiff behaving in a pain oriented manner;
[50] DCB 86
· agreed that the plaintiff was suffering from naturally occurring mild degenerative disc disease of the lower lumbar spine but disagreed with Mr Dooley’s evidence where he had indicated the plaintiff’s intermittent low back pain was consistent with symptomatic degenerative disc disease – “I would suggest that I would only agree that her asymptomatic back condition has been made symptomatic by the injury”;[51]
[51] TN 128
· reiterated his evidence to the effect that the plaintiff’s discal injury had led to lumbar instability which had not settled down, despite the absence of radiological evidence of gross deformity of the injured disc;
· confirmed the account given to him had been similar to that recorded by Mr Dooley. The plaintiff had complained of good and bad days, the latter involving significant low back pain associated with piercing and stabbing type lower left limb pain and she had complained that prolonged standing aggravated back pain;
· disagreed with Mr Dooley’s evidence where the latter had indicated that the constancy and intensity of the plaintiff’s ongoing pain and her described disability were greater than he expected to see given the plaintiff’s organic condition.
123 It is convenient to deal with the defendant’s additional specialist evidence in chronological order.
124 As far as I could tell, none of the other specialists reporting to the defendant since February 2010 specifically on the back injury (orthopaedic surgeon Mr Dooley and occupational physicians, Dr Baynes and Dr Wyatt), commented on the results of the CT scans. Unsurprisingly, they focussed on the latest of the MRI imaging available to them. In Dr Wyatt’s case, this had not included consideration of the results of the upright scans.
Mr Dooley
125 I note that in August 2010, Mr Dooley stated his understanding of the results of the MRI scans obtained in August 2009 when he indicated that these showed evidence of degenerative disc disease at the L4/5 and L5/S1 levels but not evidence of disc prolapse or nerve root entrapment.
126 Mr Dooley examined the plaintiff on 12 August 2010, 7 November 2011 and, finally, on 17 February 2015.[52] The plaintiff consistently complained of intermittent low back pain and, according to the earliest of Mr Dooley’s reports also complained of intermittent numbness in the left leg. In his final report Mr Dooley said the plaintiff described intermittent significant low back pain associated with a piercing and stabbing type left lower limb pain.
[52] DCB 28-39
127 Clinically, on each occasion, the plaintiff presented with symptoms the doctor described as: mild tenderness of the lower lumbar spine; some reduction in flexion and rotation; straight leg raising to 80 degrees on both sides and with power, tone and sensation intact. Notably, in November 2011 and again in February 2015 Mr Dooley reported objective clinical signs consistent with a discal problem, namely symmetrical reduction in the plaintiff’s ankle reflexes.
128 In March 2015 Mr Dooley reported on the results of the MRI scans obtained in September and November 2011.[53] Mr Dooley said the September 2011 scans indicated mild degeneration at the L4/5 level without evidence of major disc prolapse or nerve root entrapment, whereas the upright scans obtained in November 2011 had reported mild multilevel degeneration with no evidence of major disc prolapse or of nerve root entrapment.
[53] DCB 38
129 I found the report submitted by Mr Dooley of less assistance because it failed to comment on any variance between the supine and upright scans.
130 As mentioned earlier, Mr Dooley’s evidence was that, having suffered a work-related aggravation of naturally occurring degenerative disc disease of the lumbar spine, the plaintiff current symptoms were consistent with symptomatic degenerative disc disease of the lower spine. He considered the constancy and the intensity of pain and disability described by the plaintiff as disproportionate to the organic condition.
131 Having considered the recent evidence of the orthopaedic specialists, my impression was that, when formulating his diagnosis, Mr Schofield had placed greater importance on the plaintiff’s complaints, the clinical signs and the results of the upright scan than Mr Dooley.
132 In my view, to prefer Mr Dooley’s understanding of the nature of injury suffered would require acceptance of this proposition that non-organic factors, not discal injury, more readily explained the level and constancy of pain as well as the extent of the disability reported. Further, it would require the Court to afford little or no weight to, firstly, the variance between the results of the supine scans and the upright scans where the latter indicated likely contact with the descending L5 nerve root and, secondly, various clinical signs suggestive of nerve root involvement with which, from time to time, the plaintiff had presented to other specialists.
Dr Baynes
133 I have already mentioned in passing some aspects of this occupational physician’s evidence. He examined the plaintiff twice at the request of the defendant’s solicitors, on 6 September 2011 and on 19 March 2015. When he re-examined the plaintiff on 19 March 2015, Dr Baynes had access to a selection of reports from treating and medico-legal doctors, reports prepared by Ayres Management Services in 2012 and 2013 as well as the radiological evidence other than the results of the repeat MRI scan obtained by Mr Schofield on 27 March 2015.[54]
[54] DCB 90
134 Apart from commenting in his first report on the results of the MRI scan obtained in August 2009 and the results of the x-rays obtained by Mr Schofield in August 2011, Dr Baynes did not discuss the later radiological evidence.
135 In March 2015 the plaintiff apparently reported no real change in her condition. She continued to have intermittent lower back pain with pain radiating down into the left buttock and down the lateral aspect of the left leg. She assessed her pain levels at around 5/10 on better days and 9/10 on the bad days. As mentioned, the plaintiff had, however, complained of an ice cold feeling in the lower back and into the left leg and she reported stiffness in the back. She reported tolerances involving up to 5 minutes for standing, 20 to 30 minutes for sitting, on a good day 30 minutes for walking and for driving up to 1 hour as well as sleep disturbed by back pain but more so by left shoulder pain.
136 The results of the clinical examinations conducted in September 2011 and March 2015 were similar. In March 2015 flexion, extension and rotation of the thoracolumbar spine were reduced with indications from the plaintiff of pain; the plaintiff could walk on her toes and heels and squat without difficulty; the slump test was negative; straight leg raising was to 80 degrees for both legs; there was tenderness in the area of the L3 to S1, particularly over the L5 to S1; there was tenderness over the left more so than the right facet joints; and the plaintiff was tender over the lateral thigh and lateral left knee.
137 As mentioned, Dr Baynes attributed the plaintiff’s condition to: “a chronic pain syndrome associated with chronic discogenic lower back pain which tends to wax and wane in severity. This is in association with age-related degenerative change in the lumbar spine. There was no objective evidence of radiculopathy on clinical examination”.[55]
[55] DCB 92
138 The other specialist evidence tendered by the defendant had some historical significance. For instance, on 16 November 2011, occupational physician, Dr Wyatt examined the plaintiff at the request of the defendant’s solicitors. She referred to the plain x-rays obtained on 31 March 2008 and to the results of the MRI scans obtained on 19 August 2009 and 13 September 2011.
139 Dr Wyatt advised the plaintiff was suffering from chronic low back pain with referred pain into the left leg but added: “her scans do not indicate a disc protrusion and clinically she does not have sciatica”.[56] Of course as we now know, the upright scans indicated a diffuse disc bulge with evidence of likely contact with the L5 descending nerve roots and the up-to-date supine scan reported a broad based left foraminal disc protrusion.
[56] DCB 100
140 Relevantly, Dr Wyatt’s clinical examination had produced complaint of pain over the left lower back on extension of the left leg and had indicated reduced sensation over the outer aspect of the plaintiff’s left leg. Again, unsurprisingly, the plaintiff relied on this clinical (albeit historical) evidence of changed sensation in the left lower limb.
141 Apart from occupational physician Dr Wilson recording a slight decrease in the extensor strength of the left foot, his report and the reports of Mr Shannon and Dr Barberis obtained between June 2011 and June 2013 were principally concerned with the shoulder injury.[57] It was not clear from Dr Wilson’s report why in 2013 he had concluded the aggravation injury had ceased. In all, I found these earlier reports of limited utility in determining the nature of the back injury suffered and in determining the plaintiff’s capacity for physical employment as at the date of hearing.
[57] DCB 78-83 and 104-109 respectively
The nature of the back injury
142 As my discussion of the evidence has demonstrated, this was a complex issue. However, none of the doctors have questioned the plaintiff’s genuineness. As mentioned, she presented as a credible witness.
143 The pathology revealed by particularly the upright scan helped explain the level and extent of the plaintiff’s symptoms (as reported and on clinical examination) before and since the weight bearing scan. Among other things, the radiology pointed to likely contact from time to time between the damaged disc and the L5 nerve. The results of this scan, the clinical evidence gathered by some but not all doctors and the plaintiff’s complaints that activities brought on her left leg symptoms helped explain the neuropathic pain in the treatment of which the general practitioner has continued to prescribe the medication, Lyrica.
144 Based on all of the evidence and with due allowance for the plaintiff’s evidence the radiological material and the clinical findings, I was satisfied the plaintiff had established a work-related back injury involving both aggravation of pre-existing spondylosis in the lower back and specific injury to the L4/5 disc producing both ongoing discogenic pain and left leg symptoms. Allowing for the passage of time since the back injury and the medical evidence as a whole, I was satisfied that impairment of the plaintiff’s lower back was permanent.
145 I now turn to consider the economic loss claim.
Loss of Earning Capacity Consequences
The plaintiff’s evidence
146 The plaintiff’s evidence concerning her earning capacity and her attempts to return to the workforce was to the following effect.
147 Since leaving school at a very young age, the plaintiff has completed a basic computer course but not an interim computer course because she found the latter too difficult to understand.
148 The plaintiff’s uncontroverted evidence was that following the back injury she never return to full-time normal duties and, prior to retrenchment, she had experienced problems performing even modified duties. I note that the evidence of the treating physiotherapist summarised earlier generally corroborated the plaintiff’s complaint of problems with bench heights when required to lift crates containing parts, with sitting while using a moulding machine and with standing at presses.
149 According to the plaintiff, but for the back injury she had intended to work full-time in the workforce performing manual work either with the employer or some other form of manual work. The back injury had, the plaintiff deposed, deprived her of the opportunity to return to manual work in nurseries, in factories or as a cleaner.
150 In her first affidavit the plaintiff spoke of making hundreds of applications for jobs either with the assistance of Ayres Management Services or on her own behalf. These applications had apparently led to two unsuccessful interviews for positions in retail.
151 Apart from a short stint in 2013 working as a receptionist with Splashback, the plaintiff has not worked since the redundancy in February 2009.
152 The receptionist job was described in some detail in the affidavit sworn by the plaintiff on 24 September 2013 in support of her application for leave in respect to the shoulder injury.
153 In early August 2013 the plaintiff obtained casual employment as a receptionist with Splashback in Frankston. She was employed for 12 hours per week, four hours per day spread over three days. The plaintiff was paid $20.63 gross per hour or $247.56 gross per week. Extrapolated over a year this part-time work represented gross income of $12,873.12 per annum.
154 The plaintiff recalled that, this had been the lightest of the employments in which she had engaged during her working life. However, the plaintiff left the receptionist job after about six weeks. The plaintiff deposed she had not coped with working on her feet for almost an entire four hour shift, by the end of which the plaintiff said she had experienced a lot of low back pain and pain in the left leg with pain and numbness above the knee.
155 At hearing the plaintiff recalled back soreness and aching and left leg numbness at the conclusion of each work shift. Essentially, the plaintiff indicated she could not have increased the hours she worked then or now because her symptoms were much the same now as they were in 2013.
156 As to the shoulder injury, the plaintiff deposed that the receptionist job had placed little strain on her left shoulder because she had used her right hand to answer the telephone, yet confirmed that, at some stage during September 2013, while moving a number of small glass tiles into a cupboard she had experienced heightened levels of pain in the left shoulder.
157 As earlier mentioned the plaintiff’s evidence was that, despite any limitations caused by the shoulder injury, the back injury was the major problem, particularly in the receptionist position and for future employment. Furthermore, when under medical control, other unrelated conditions such as diabetes and left knee problems had not incapacitated the plaintiff for work.
158 In her final affidavit, sworn on 11 May 2015, the plaintiff described a range of factors, which, in my view, would likely restrict her capacity to undertake alternative employment in the future as well as affect her capacity to reliably attend for full-time or part-time employment. These included:
· low back pain of varying intensity (“quite bad much of the time”[58]) virtually all the time with frequent episodes of pain radiating into the left buttock and leg. During re-examination the plaintiff recalled: “maybe a couple of days” without back pain.[59] She was, she said, scared by the numbness in her left leg;
[58] PCB 27
[59] TN 53
· susceptibility to frequent and unpredictable flare-ups of pain and symptoms often for no reason at all and sometimes following activity. Apparently these flare-ups significantly restricted the plaintiff’s physical activities. The attendance at the West Gippsland Hospital Emergency Department in April 2015 was an example of both the unpredictability of the plaintiff’s back injury and its impact on her. Another similar example involved the incident in June 2013 when the plaintiff required referral for further physiotherapy for treatment of back pain after leaning over a towel rail. During re-examination the plaintiff also referred to increased pain when she bent and twisted at the same time as well as some difficulty when showering or getting out of bed in the morning;[60]
[60] TN 56
· sleep disruption due to back pain such that the plaintiff said she hardly ever experienced a good night sleep and rarely woke refreshed. Loss of sleep led to tiredness during the day and reduced levels of concentration and attention;
· due to side-effects, Dr Ly had recently substituted Endep for Tramal and reduced the dosage of Lyrica to 150 mgs per day. The plaintiff said the change in her medication regime had not improved the side-effects experienced by her and had left her with increased lower back pain with radiation of pain into the left buttock and leg. The record of medication prescribed as at 19 September 2014,[61] confirmed that during the latter part of 2014 both Tramadol and Lyrica (300 mgs at night) were prescribed by Dr Ly. As I understood the evidence at hearing (which also referenced a print-out of the plaintiff’s medications as at 22 April 2015), the plaintiff had ceased taking the strong pain killing medication, Tramodol prescribed in 2014 in the treatment of the shoulder injury. However, her treating general practitioner, from the Outlook Drive Medical Centre, Dr Ly, continued to prescribe Lyrica in the treatment of injury to the L4/5 disc.[62]
The without injury earnings figure
[61] Exhibit D2
[62] TN 48
159 I have already mentioned the statutory requirements for establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. The concern in this case was whether the plaintiff had a physical capacity for work which, if exercised in suitable employment, would result in her earning more than 60% of the without injury earnings figure where the latter was determined in accordance with section 134AB(38)(f) of the Act.
160 The calculation of the without injury earnings figure was not straightforward principally because neither party fully articulated their approach to calculation of this prior to final submissions.
161 Essentially, the legislation required the Court to measure the plaintiff’s loss of earning capacity by comparing her gross after injury earnings with the gross income expressed at the annual rate the plaintiff was earning or was capable of earning 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 reflected the plaintiff’s earning capacity had the injury not occurred.
162 In this case the six-year period over which the without injury earnings figure was to be calculated was between 11 February 2005 and 11 February 2011.
163 I have already summarised the plaintiff’s pre-injury work history. Among other things, this history indicated many years of pre-injury employment in manual occupations commencing with casual employment, followed by some 4 to 5 years in full-time employment.
164 I was told the plaintiff’s tax returns for the years ending 30 June 2006, 2007 and 2008 revealed gross earnings of $28,534, $25,435 and $26,317 respectively.
165 In February 2008 the plaintiff was working a full-time day shift between 7:40 am and 4:30 pm assembling car parts. The claim form confirmed the plaintiff was working 38 hours per week and earning at the rate of $14.19 per hour or $539.22 gross per week ($28,039.44 gross per annum). Overtime was not indicated by this form or by the employer’s report form.[63]
[63] Exhibit P3
166 In her first affidavit the plaintiff contended she would have continued working with the employer beyond February 2009. She blamed the back injury for the redundancy on 11 February 2009. The employer contested this evidence.
167 In his affidavit, Andrew Guest deposed that the global economic crisis had forced the employer to reduce the number of working hours. From late September 2008 all of the employer’s factory staff had been working three days for a total of 25.5 hours per week. In February 2009, approximately one third of the factory staff, along with the plaintiff, were made redundant.[64] Mr Guest attributed the selection of the plaintiff for redundancy to the length of her employment and to her non-supervisory role.
[64] DCB 1-4
168 Leaving to one side for the moment, the motivation for the redundancy, from February 2009 the plaintiff had been free to exploit her earning capacity from personal exertion on the open labour market.
169 When made redundant the back injury, not the shoulder injury incapacitated the plaintiff in the performance of her normal duties. However, as the evidence summarised so far has shown, subsequent to redundancy and within three years of the back injury, the shoulder injury had required further investigation and treatment. The latter included treatment by way of physiotherapy and cortisone injection in February 2010 and March 2010 respectively.
170 Acir v Frosster Pty Ltd is authority for the proposition that the supervening shoulder condition impacting the plaintiff’s earning capacity in the three years subsequent to the back injury should not be taken into account when fixing the without injury earnings figure. The question for the Court was: what was the plaintiff’s ability to earn money in the workforce taking into account her pre-injury state of health, level of employment and career opportunities at the time of the back injury? [65]
[65] [2009] VSC 454, [158]-[179]
171 The decision of the Court of Appeal in The Herald & Weekly Times Limited v Jessop & Anor has confirmed that the common law principles for assessing damages for loss of earning capacity are not directly applicable to sections 134AB(38)(e) and (f) of the Act.[66]
[66] [2014] VSCA 292, [36] and [59]
172 In Jessop the Court of Appeal explained that, for the purposes of section 134AB(38)(f)(ii), a worker’s earning capacity represented a capital asset which, when exercised, produced income from personal exertion. Applying the reasoning of the Court of Appeal to the present case, the plaintiff’s ability to earn income through personal exertion depended on the nature and quality of her capital asset and her capacity and willingness to use it to earn income. Factors such as the plaintiff’s physical and mental capacities to work, the type of work she was able to perform, the remuneration for that work and the hours she was willing to work were all relevant considerations. [67]
[67] Ibid [53]
173 It was common ground that, at the date of redundancy, the plaintiff was paid at the rate of $14.76 per hour or $561 per week (about $29,165 gross per annum). Both parties, nonetheless, relied on hourly rates payable, either by the employer to comparable employees or payable to workers holding similar positions with other employers, as at the end of the six-year period in February 2011.
174 The defendant adduced evidence of the rates paid to two comparable employees.[68] As at February 2011 they were paid at the rate of $15.45 per hour. For a 38 hour week this represented $30,529.20 gross per annum. Senior counsel submitted this figure most fairly reflected the gross income the plaintiff was capable of earning from personal exertion and should be treated as the without injury earnings figure for the purposes of the section. Based on this submission, 60% of the gross figure was $18,317.52.
[68] Exhibit D4
175 Counsel for the plaintiff submitted that $30,529.20 was not the figure that most fairly reflected her earning capacity had the back injury not occurred.
176 The records tendered by the defendant showed that the comparable employees worked full-time and had been paid overtime prior to the end of the six-year statutory period. For instance, for the pay period 23 June 2010 to 29 June 2010 the comparable employees had worked either 11 hours or five hours overtime. Counsel submitted the annualised figure produced by applying an hourly rate of $15.45 failed to make allowance for overtime.
177 Had it been necessary to rely on the rates paid to comparable employees, I was not satisfied the plaintiff had established the evidentiary basis for making further allowance for overtime. No evidence had been proffered to establish the availability of overtime to the plaintiff or the plaintiff’s willingness to perform this or to establish that the plaintiff regularly earned overtime before the back injury.
178 The principal submission made on behalf of the plaintiff was to the effect that the hourly rate paid to the comparable employees was not a proper comparator in this case. Counsel submitted the gross income the plaintiff had been capable of earning but for the back injury should be determined by reference to the rates of pay (divided by 38 hours) available to the plaintiff as at 10 February 2011 in various recognised occupations.
179 Two reports prepared by Senior Occupational Therapist, Mr Dwyer from Evidex on 1 June and 3 June 2015 respectively were tendered. The Evidex reports relevantly contained pay information for a metal engineering process worker and product assembler ($1,162.00 gross per week or $30.58 per hour and $816.00 gross per week or $21.49 per hour respectively) or for a machine worker/assembler in the vehicle industry ($926.80 gross per week or $24.39 per hour) as at February 2011.[69]
[69] Exhibit P2 and PCB 194a-c
180 For the purpose of this application, the plaintiff relied on the gross figure aligned to the industry in which she had been working with the employer. It was submitted on behalf of the plaintiff that the sum of $926.80 per week or $48,193.60 gross per annum payable to a machine worker/assembler working full-time in the vehicle industry most fairly reflected the amount she had been capable of earning without the injury.
181 In this case, prior to the back injury, the plaintiff had the physical and mental capacity to work full-time and had exercised that capacity working at least 38 hours per week. The plaintiff’s intention to continue working full-time with the employer after the back injury had been overtaken by the redundancy and, with the loss of her employment, the plaintiff had been placed on weekly payments of compensation. Essentially, the back injury had deprived the plaintiff of the capacity to seek employment on the open market in the same industry subsequent to the redundancy and during the three years after the back injury, at a rate of pay she had been capable of earning from personal exertion.
182 In my view, the best evidence of the plaintiff’s earning capacity for the purpose of section 134AB(38)(f) of the Act, namely, the sum that probably most fairly reflected the plaintiff’s earning capacity was not the hourly rate payable to comparable employees as at 10 February 2011. It was the hourly rate payable to an assembler working full-time in the vehicle industry.
183 Accordingly, the figure used to measure the plaintiff’s loss of earning capacity was $48,193.60 gross per annum. The plaintiff was required to establish an inability to earn 60% of this figure, namely $28,915 per annum.
184 However, as my discussion of the evidence concerning the plaintiff’s capacity for suitable employment shows, the plaintiff had established a permanent loss of earning capacity productive of financial loss of 40% or more regardless of whether this was determined using the plaintiff’s or the defendant’s without injury earnings figure.
Medical and capacity for suitable employment evidence
185 Under section 5 of the Act ‘suitable employment’ is defined as:
employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –
a) the nature of the worker’s incapacity and pre-injury employment;
b) the worker’s age, education, skills and work experience;
c) the worker’s place of residence;
d) the details given in medical information including the medical certificates supplied by the worker;
e) the worker’s return to work plan, if any;
f) if any occupational rehabilitation services are being provided to or for the worker.
186 It was common ground that by reason of the back injury, the plaintiff was no longer physically fit to perform her pre-injury work. All doctors have identified physical restrictions due to the back injury affecting the plaintiff’s capacity to undertake suitable employment on part-time or full-time bases.
187 I have not relied on earlier medical assessments of the plaintiff’s physical capacity, to determine her current fitness for suitable employment where these pre-date or fail to address the functional issues raised by the reported results of the upright scans. So far as the other evidence of capacity was concerned, the NES Vocational Assessment (the 2012 vocational assessment) and the NES Vocational Placement reports (the 2013 placement report) submitted 17 May 2012 and 7 August 2013 respectively were somewhat dated. I will discuss the evidentiary weight of these reports and the Workplace Physical Demands Report dated 1 May 2015 (the Physical Demands report) in more detail shortly.
188 Current medical assessment of the plaintiff fitness for suitable employment with specific regard to impairment of her lower back, varied. My reasons for preferring the evidence of occupational physician, Dr Middleton in this regard are apparent from the discussion of the medical and other evidence of incapacity below.
189 Commencing with the treating general practitioners, from 2010 onwards, subject to vocational assessment/retraining and restrictions on repetitive/excessive bending, on twisting, on lifting (by 2014 this was restricted to no more than 5 kilograms) and on raising/lifting the plaintiff’s left shoulder/arm (by 2014 this was above 110 degrees), Dr Naidoo envisaged a capacity for employment in Sales, Security, Clerical, Shop or Office work. Evidently, the latter positions were mentioned in a vocational assessment report pre-dating the doctor’s report dated 10 November 2010. The earlier vocational assessment report was not also tendered.
190 Based on her final presentation in March 2014 (“from my previous observations, Ms Cox’s pain would wax and wane, often interfering with her sleep and activities of daily living”[70]), Dr Naidoo considered the plaintiff fit for part-time employment working 4 hours per day, 6 days per week . He had been hopeful the plaintiff would return to full-time work.
[70] PCB 84
191 From my reading of Dr Naidoo’s reports, none of these had indicated analysis of the tasks required in any of the occupations mentioned by him by reference to the plaintiff’s physical capacity. Accordingly, I could not be satisfied the doctor had been qualified to express an opinion about the suitability of the particular job options to which his final report referred. In summary, without more, Dr Naidoo’s evidence was not a strong endorsement of the plaintiff’s physical capacity by March 2014 to return to (even on a gradual basis) and sustain full-time suitable employment.
192 I have already mentioned in passing Dr Ly’s assessment of the plaintiff’s capacity for alternative employment. In his opinion the plaintiff had a retained capacity for light duties and should avoid employment that might trigger back pain. Specifically, she should avoid tasks involving lifting objects weighing in excess of 5 kg and avoid repetitive back bending and the like.
193 As to the plaintiff’s medico-legal assessments, Mr Schofield and Dr Middleton considered the plaintiff no longer suited to any employment having regard to the definition of suitable employment contained in the Act.
194 During re-examination Mr Schofield confirmed this opinion. He said the plaintiff would have difficulty obtaining employment she could maintain on a regular basis due to significant pain in the back and leg and to a discal injury Mr Schofield believed would likely require surgery in the future. Mr Schofield was the only specialist to raise the prospect of surgery.
195 Unlike Mr Schofield, in his final report dated 4 May 2015, Dr Middleton addressed in some detail the factors to which the statutory definition referred and, in doing so, explained why he believed the plaintiff had no physical capacity for suitable employment. As to each relevant factor, whether in his oral or written evidence, Dr Middleton explained his reasons for believing the plaintiff had no capacity for suitable duties as follows.
196 Incapacity: The plaintiff was now restricted to non-manual duties. These duties would need to be performed in a self-paced manner with work breaks as required.
197 The plaintiff should avoid any repetitive or prolonged activities involving her spine, such as prolonged sitting, standing, walking, driving and/or stooping and lifting and repetitive bending and/or twisting. According to Dr Middleton, the maximum effective weight or force to be applied should be limited to 5kgF on an occasional basis and 2.5kgF on an intermittent basis.
198 During re-examination Dr Middleton explained the 5kg weight restriction he imposed represented a safe starting weight for lifting at work. Dr Middleton emphasised the importance of allowing, as he had, for the effective weight of objects lifted in a work environment when determining whether a particular job represented suitable employment. He explained this in the following words:[71]
I think it’s important, we’re talking about weights now. Now, I can push my car as long as it’s not in gear and the brakes aren’t on but I can’t lift it. If you look at mine I talk about effective weight. Now, ergonomically speaking there is a rule in ergonomics that the weight is equivalent to one of that weight if it’s directly held in front of you, if you reach out and lift that same weight the effect of weight is double and if it’s overhead it’s triple. A lot of these assessments are done and they don’t do an ergonomic assessment of the physical requirements of the job. If they have to bend down to pick up off the ground they are going to be reaching out and it’s not 5 kilograms, it’s 10. This simplicity that weight is just weight. I can give you an example, I can push my car along a flat surface which weighs one and a half tonnes but I can’t lift it, it’s not that simple (sic).…
[71] TN 138-139
199 Due to particularly the medication (Lyrica) prescribed to control neuropathic pain the plaintiff could no longer safely operate machinery and her attendance at work was limited to part-time duties. Indeed, Dr Middleton envisaged a graduated and cautious return to work commencing with 2 to 3 hours in any one day for 2 to 3 non-consecutive days in any one week, with careful monitoring of the plaintiff’s progress.
200 During re-examination, when asked to comment on the evidence that the plaintiff had not coped working consecutive days part-time at Splashback, Dr Middleton noted her pain levels were probably easily aggravated by physical activity. His logic was that non-consecutive working days would best accommodate a build-up of pain by allowing the plaintiff time to recover.
201 Dr Middleton’s oral evidence also served to reinforce the plaintiff’s evidence that fluctuations in pain levels and in her capacity from day-to-day would likely affect her reliability as an employee.
202 In Dr Middleton’s opinion, the plaintiff could work, at best, 12 hours per week should suitable employment be available. On this basis, even if there was work to which the plaintiff was currently suited the plaintiff would have established a permanent loss of earning capacity of 40% or more, using any of the without injury earnings figures to which the parties referred.
203 Age: At 51 years of age, the plaintiff’s age was an impediment to gaining paid employment on the open employment market.
204 Education: The basic computer course previously undertaken by the plaintiff was not a commercially relevant skill. In Dr Middleton’s view, the absence of recognised educational qualifications amounted to a significant impediment to the plaintiff gaining sedentary, non-manual work.
205 During re-examination, Dr Middleton rejected earlier specialist evidence to the effect that the plaintiff would be fit to perform clerical duties. In doing so, he emphasised the plaintiff’s lack of recognised educational qualifications and the constraints on her physical capacity. The plaintiff’s failure to advance beyond a basic computer course and her limited schooling, not to mention the limitations on the plaintiff’s postural endurances when seated indicated to Dr Middleton that the plaintiff would have great difficulty in successfully completing any further computer course relevant to the performance of even clerical tasks. In my view, his evidence in this regard was unassailable. These matters indicated that, at the very least, the plaintiff’s educational background when combined with her physical restrictions would likely preclude further occupational rehabilitation or retraining for positions requiring computer-based clerical work.
206 Place of residence: The plaintiff’s current residential address meant that she was away from areas where non-manual sedentary employment options in clerical and light duties were available. Dr Middleton also took into account the plaintiff’s reduced driving tolerance and the limited public transport available to her when he concluded her place of residence further impeded the plaintiff’s ability to gain suitable employment on the open employment market.
207 Skills and work experience: The plaintiff’s work experience and acquired skills were dependent upon an excellent and reliable physical capacity which the plaintiff no longer had. As mentioned, Dr Middleton had not considered the basic computer course completed by the plaintiff a commercially viable skill. Moreover, as he noted there had been no successful vocational re-education funded by WorkCover.
208 As to the defendant’s medico-legal assessments, Mr Dooley said the plaintiff was limited to light physical and clerical work where she would not be required to perform regular heavy physical activity or a lot of bending and lifting. Whilst earlier reports identified a physical capacity to work in particular occupations, I could not be satisfied from the material tendered that, at the time, Mr Dooley had also analysed the specific tasks involved in these jobs.
209 As mentioned, I focused on the recent assessments of the plaintiff’s capacity and the appropriateness of particular jobs. As a result, I have not also reviewed Dr Baynes evidence as at 18 October 2011 indicating the appropriateness of a range of positions to which he had been referred.
210 As to his report following review on 19 March 2015, it is unnecessary to repeat all of Dr Baynes evidence on each of the factors to which the statutory definition of suitable employment referred. Suffice to say there were material differences between the observations reported by Dr Baynes and Dr Middleton.
211 Firstly, Dr Baynes conclusion that the plaintiff had: “reasonable computer skills”,[72] which could be increased by on-the-job training as required, was against the weight of the evidence of the plaintiff and Dr Middleton.
[72] DCB 93
212 Secondly, whilst Dr Baynes identified occupational restrictions (on lifting weights exceeding 5 kg and on repetitive lifting from below knee height as well as the need for opportunities to rotate the plaintiff’s posture between sitting, standing and walking) his report failed to address the impact of activity-induced flare-ups in back pain and symptoms on the plaintiff’s ability to reliably attend employment, whether this was on consecutive or alternate days.
213 In my view, Dr Baynes’ evidence that the plaintiff had the ability to work 25 to 30 hours (five hours per day, four days per week) and possibly full-time in an appropriate position and his evidence that the job with Splashback would have been a lot easier had the plaintiff had the opportunity to rotate her postures, also failed to give proper weight to the evidence that in 2013 the plaintiff had not coped with part-time hours on consecutive days.
214 In March 2015, having noted the recommendations made in the 2012 vocational assessment, Dr Baynes reported the plaintiff would have a capacity to undertake the roles mentioned by the assessor but cautioned against employment as an industrial hire sales assistant if this involved a need to lift heavy equipment.
215 It is convenient to deal with the non-medical evidence of suitable employment options before finalising my comments on Dr Baynes’ evidence.
216 When preparing the 2012 vocational report, the assessor had relied on the plaintiff’s report of her treatment regime, physical tolerances and pain levels and advice received post-assessment from general practitioner, Dr Naidoo, to the effect that the plaintiff was fit to perform modified duties.
217 The 2012 vocational assessment did not distinguish between the back injury and the shoulder injury when identifying suitable employment options. In order of priority these were: Sales Clerk, Retail Sales Assistant, Roster Clerk, Reservations Clerk, Rental Sales Person, Industrial Hire Sales Assistant and other positions identified as suitable once job seeking assistance commenced.
218 What was immediately apparent from perusal of the tasks involved in most of the roles listed by the assessor was that many involved clerical tasks requiring skills in the use of computers. In my view, the factors indicated by Dr Middleton, would likely preclude on-the-job training or retraining to perform the sorts of clerical tasks contemplated by the roles listed. Accordingly, without more, I was not satisfied that any of the roles listed represented suitable employment as defined by the Act.
219 Essentially, the 2013 placement report confirmed that, under a WISE Incentive Placement, from about 2 August 2013 the plaintiff had secured part-time employment as a receptionist with Splashback.
220 If nothing else, the two NES reports helped establish that, notwithstanding any earlier dissatisfaction with the WorkCover system, the plaintiff had been well motivated to seek and try alternative employment. She had co-operated in undergoing the 2012 vocational assessment, she had been active in seeking employment and by August 2013 she had identified and commenced working in alternative employment (“she is just thrilled to have returned to work”[73]).
[73] DCB 172
221 However, as already noted, I have accepted the plaintiff’s evidence that, due to back pain and leg symptoms she had not been able to sustain even part-time, receptionist duties with Splashback.
222 The Physical Demands report submitted by Recovre was prepared by Occupational Therapist/Injury Management and Employment Placement consultants. The plaintiff was not interviewed. The authors evidently referred to various job seeking sites to identify existing job roles local to the plaintiff’s place of residence. They relied exclusively on the analysis of the plaintiff’s physical restrictions and capacity to undertake particular jobs contained in Dr Baynes’ three reports and in Mr Dooley’s final report. They also apparently considered the content of the 2012 vocational assessment.
223 The authors noted the suitable employment options to which the 2012 vocational assessment referred as well as the additional roles of light packing and process work, general office worker and call centre worker identified in Dr Baynes’ report dated 19 March 2015.
224 It appears that, on 28 May 2014, the authors undertook worksite assessments of two positions previously advertised for a receptionist or receptionist/ward clerk with age care providers at locations proximate to the plaintiff’s place of residence. These were identified by the authors as physically suitable roles for the plaintiff.
225 The receptionist role in Drouin provided on-the-job training and, among other things, had not required formal qualifications, although at least one year’s experience in administration or reception, a Certificate III in Business Administration and competence in Microsoft Office and Internet Explorer systems was considered advantageous.
226 The receptionist position was full-time, that is 9 am to 5 pm Monday to Friday and was paid at the rate of $20.50 per hour ($820 gross for 40 hours) or more depending on the applicant’s experience. Extrapolated over a year the full-time position had offered gross earnings of $42,640 per annum. A part-time position for one day per fortnight had also been available.
227 The role involved customer service, telephone, computer based, administrative and banking/post duties, with the majority of the working day spent seated on an ergonomic office chair at a workstation working on a computer emailing, preparing mail merge letters and updating various data bases. Notably, in summarising the critical work demands the authors reported ample opportunity for postural variations throughout the day. Relevantly, the report indicated that, when performing administrative duties the receptionist had the option of obtaining assistance from maintenance staff to remove and relocate archive boxes the weight of which typically did not exceed 5 kgs.
228 The second position at Warragul had been a part-time job share in a large aged care facility working between Monday and Friday. It involved computer-based, customer service, telephone, filing, patient admissions/discharges and maintenance of kitchen and other store area duties. Again, the bulk of the working day involved performing a variety of computer-based activities whilst seated, although the opportunity to vary posture regularly had been noted.
229 In a supplementary report dated 20 May 2015, Dr Baynes indicated approval of both positions. He considered the plaintiff physically capable of performing especially the receptionist role, which Dr Baynes thought similar to the role performed by the plaintiff with Splashback. However, whilst the latter position had required the plaintiff to stand throughout her 4 hour shift, in the position under consideration the plaintiff had, Dr Baynes noted, the advantage of sitting and standing as needed.
230 Notably, the plaintiff was never cross-examined about her ability to perform the specific tasks involved in either receptionist position. There was limited cross-examination of Dr Middleton in this regard. He was informed of Dr Baynes’ evidence that these positions represented suitable employment. Dr Middleton’s responses are summarised in the following paragraphs.
231 He contested the suggestion that the plaintiff could cope with the requirements of the receptionist/ward clerk role to lift store boxes weighing up to 9kgs or to push/pull a trolley with loads weighing up to 10kgs. I have already summarised Dr Middleton’s comments on the importance of considering effective weights.
232 As to the lifting requirement, none of the recent medical evidence, which dealt with the lower back condition envisaged roles requiring a physical capacity to lift weights exceeding 5kg. However, as Dr Middleton explained during re-examination, the problem in this case was working out the actual physical requirements of the receptionist/ward clerk role. Even if the plaintiff was not required to lift boxes weighing 9kgs, the requirement that she unpack weights of two kilograms or less where this involved reaching would still present a problem for the plaintiff.
233 As to the pushing/pulling requirement, Dr Middleton was doubtful the plaintiff could safely perform this task, were the initiating force for pushing or pulling a trolley with a 10 kg load over carpet or linoleum also measured.
234 Dr Middleton also drew attention to the need to use a step stool to reach files housed in cupboards over the bench in the reception area. In his opinion this was not a safe activity for the plaintiff given her complaint of shooting pain down her left leg when climbing stairs.
235 As to the receptionist position, Dr Middleton reiterated his view that the plaintiff was unlikely to cope working a full day or working consecutive days. During re-examination Dr Middleton explained his rationale for rejecting as suitable employment a receptionist position working full-time over consecutive days in the following evidence:[74]
I think we all know what a receptionist does and I can draw your attention to what the endurances relate to and standing still is something – you have to stand still when you talk to people if you’re going to be a receptionist, it is a problem and all of – if you are going to be there long-term you’re going to – if you – what you find with people, when they say they can drive a car for 40 minutes or an hour or two hours, if they do that then they can’t drive any further so if you sit or stand or walk to the point where you have to stop there is a recovery period which you can’t suddenly stop doing your job. So it’s so simple to say she can do this and that and the other, but can she do it for four hours or – and that’s where it – that’s why I chose to be more, I believe, realistic (sic).
[74] TN 136-137
236 In Dr Middleton’s opinion, the plaintiff did not have the capacity to spend the majority of the working day seated at a computer emailing and preparing mail merge letters and updating databases both because of her lack of computer skills and the sitting requirement. Dr Middleton was not persuaded to alter this view simple because there were opportunities for the plaintiff to stand up and move about throughout the working day. As he pointed out, there would be times when the receptionist position required the plaintiff to remain at her workstation and once the plaintiff developed symptoms she would require time to recover and this, in turn, would affect her reliability as an employee.
Conclusions
237 The evidence concerning the plaintiff’s ability to reliably maintain working more than part-time hours or working over consecutive days was central to my finding that she was likely totally incapacitated for all employment. The plaintiff satisfied me that despite periods over which she had not sought treatment of the back injury from her general practitioner, the difficulties encountered by the plaintiff during the comparatively short period over which she worked with Splashback helped establish an underlying unreliability due to the back injury alone.
238 The plaintiff’s background and the limitations on her acquiring additional skills for alternative employment, establish that for the foreseeable future, any rehabilitation or retraining was unlikely to improve the plaintiff’s physical capacity for or increase her reliability in any employment to which she may be otherwise suited in accordance with the definition contained in section 5 of the Act.
239 In my view, on balance, the plaintiff had established a permanent loss of earning capacity productive of financial loss of 40% or more and, by reason of her likely unreliability as an employee, any retained capacity to which Dr Middleton’s evidence referred would not take her over the statutory threshold for the foreseeable future.
240 I was satisfied that when judged by comparison with other cases in the range of possible impairments or loss of body function, the plaintiff’s loss of earning capacity was fairly described as being at least very considerable.
241 The plaintiff is entitled to leave in respect to the loss of earning capacity consequence due to permanent impairment of her lower back. As a result, it has not been necessary to separately determine the pain and suffering component of the application for leave.
242 I propose to make an order granting leave to the plaintiff to commence common law proceedings in respect to pain and suffering and loss of earning capacity damages.
0
6
0