Cox v Glenn-Craig Villages Pty Ltd
[2019] VCC 1356
•15 May 2019 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02229
| PATRICIA ANN COX | Plaintiff |
| v | |
| GLENN-CRAIG VILLAGES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 26 March 2019 | |
DATE OF JUDGMENT: | 15 May 2019 (Revised) | |
CASE MAY BE CITED AS: | Cox v Glenn-Craig Villages Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1356 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Altona Bus Lines v Lococo [2002] VSCA 159; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198
Judgment: Leave granted to bring proceedings for damages for pain and suffering. Application in relation to loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr M J Garnham | Slater and Gordon |
| For the Defendant | Mr D Masel SC with Mr D Churilov | Russell Kennedy |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to work with the defendant on the 17 June 2013 (“the said date”).
2 The claimed impairment is the lumbar spine.
3By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
4 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
5Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
8 Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
9 Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
11The plaintiff swore three affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is fifty-four, having been born in January 1965 in Hong Kong. She has four children.
13 The plaintiff the equivalent of Year 12 in England. After leaving school, she did various unskilled jobs in England, including working as a kitchen aide, maintaining vending machines and working in a supermarket on the registers. Her main work was for Leicester City Council, where she went from kitchen hand to function driver and then obtained a certificate and became licensee and publican of the Council bar for about nine years.
14 The plaintiff moved to Australia in August 2000. She obtained part-time work at the Belgrave RSL, where she worked for about six years. She commenced part-time employment for the defendant in July 2002 and while doing that work, she completed a Certificate III in personal care. She worked the two jobs concurrently until about 2007, when she worked solely for the defendant.
Lifestyle prior to work injury
15 Before suffering injury to her lower back on the said date, the plaintiff led an enjoyable and active life. She was living in Monbulk with her husband and two boys, then aged sixteen and ten. She was primarily responsible for the domestic duties. She had no restrictions performing the cleaning, washing and hanging out washing, sweeping, cooking and shopping. Her husband was then working full time. Outside, she enjoyed working in the garden, including all of the more physical gardening tasks including digging, planting, pruning and weeding.
16 The plaintiff’s main recreational activity was playing competition darts. She was a member of a team at Belgrave RSL, where she played two nights per week, and she also played two nights per week at Croydon and occasionally over the weekend. The competition darts involved travel to locations such as Bendigo and Castlemaine. She had no restrictions or difficulties spending hours in a car travelling to events.
17 When the plaintiff was not working, she enjoyed taking their dogs for a 2 to 3-kilometre walk. The walking kept her fit and active.
Work with the Defendant
18 The plaintiff’s work for the defendant as a personal care attendant (“PCA”) involved assisting residents with daily living activities, hygiene and meals. The residents were full care, high care, dementia and elderly. Some had disabilities with walking and speech. One of the hardest parts of the plaintiff’s job was the extra workload as a consequence of the inadequate and broken down machinery.
19 On the morning of the said date, the plaintiff’s work task involved getting a resident up from a low lying bed. The bed was at ground level and in the expected work system, she would press a button and the bed would rise. At that time, there were continual problems with malfunctioning beds about which the plaintiff and others regularly complained.
20 That morning, the plaintiff and her colleague were the first in to the resident's room. The resident had wet himself and they consequently needed to get him out of his bed. Although they had a standing machine, as the bed would not rise up, the plaintiff and her colleague had to pull the resident up physically to try and get the machine sling on him. They were both on the floor and it was a great strain. The plaintiff felt pain in her lower back (“the incident”) which became more severe about two hours later when the she was unable to stand on both feet. She reported the incident to her RN on the wing and she was assisted by the team leader.[3]
[3]Transcript (“T”) 43
21 In cross-examination, the plaintiff was taken through a number of affidavits of co-workers employed by the defendant, in which they deposed they had no knowledge of the plaintiff suffering injury on the said date.
22 The plaintiff could recall working with another employee of the defendant, Harry Kronet, and she reported her injury to Kathleen Saffin, who was the lifestyle coordinator. When the incident occurred, the plaintiff was working on the west wing.[4]
[4]T21
23 The plaintiff was cross-examined at length about the circumstances of the incident and the onset of lumbar pain, the nature of her post-incident complaints to her general practitioner, the time she reported the incident to the defendant, and the histories she gave to a number of medico-legal examiners about the incident.[5]
[5]T37-38
24 As the defendant ultimately conceded compensable injury,[6] an analysis of the plaintiff’s answers in cross-examination relating to this issue is no longer required.
[6]T102
25 The plaintiff filled out a Claim Form, and her claim was later accepted.[7]
[7]T25
Subsequent treatment
26 After finishing her shift, the plaintiff went home and slept. When she woke, she was unable to walk. The following day, she attended Dr Gergis at St Anthony’s Medical Centre, Pakenham (“St Anthony’s”). She was then prescribed Celebrex and referred for an x-ray. Dr Gergis provided a medical certificate.
27 When the pain persisted over the following days, Dr Gergis referred the plaintiff for physiotherapy and prescribed Voltaren and pain relief. The plaintiff had a lumbar CT scan on 17 of July 2013. She commenced physiotherapy three times per week, but did not receive any improvement in her symptoms. In July 2013, her general practitioner prescribed Endone.
28 The plaintiff’s physiotherapist recommended the plaintiff try different shoes, but they made her symptoms worse.
Return to work
29 The plaintiff made an attempt to return to work, performing light duties, including handing out tea to the residents, accompanying them while they did gentle walking and reading newspapers to them. She commenced at 12 hours per week and managed to get up to 30 hours per week, but she continued to experience pain and leg symptoms. She was never able to get back to normal duties.
30 The plaintiff agreed she had time off and leave as deposed to by the defendant’s facility manager, Melissa Ryley. She also agreed she was medically cleared for full duties on 10 July 2014. This occurred after she had asked Ms Ryley about returning to night work and being told she needed a full clearance to do so.[8]
[8]T46
31 The plaintiff could not remember what she said to Mr Timms on examination in 2015 about her return to work after the incident, having been told she told him she was off work for about six weeks then returned to light duties. She had physiotherapy, acupuncture and then eventually returned to full-time duties.[9]
[9]T56
32 Post incident, the plaintiff wanted to do nightshift because it was easier. She enjoyed doing her PCA work, which was being with people, but because she could not do it and was “on lifestyle” duties which she did not enjoy, doing night work enabled her to still work with people but she did not have to do the heavy lifting and pushing.[10]
[10]T47
33 The plaintiff denied she told Ms Ryley at this stage that she had recovered. Ms Ryley asked her to get a clearance and the plaintiff did so.[11] She agreed she had told Ms Ryley she wanted nightshift because she was having financial difficulties, and in that role she would receive an allowance on top of the dayshift wage. That job was easier, because the patients were sleeping. She agreed nightshift had its difficulties as well and at times, she may have to ask for assistance.[12]
[11]T48
[12]T49
34 The plaintiff agreed that after the clearance on 10 July 2014, she worked a combination of nightshifts and dayshifts on lifestyle duties without any issues or incidents.[13] During this time, Ms Ryley regularly asked her how she was coping and the plaintiff made no complaints to her but that was because she would have lost her nightshift if she had said anything. She agreed that Ms Ryley would not have seen her having any difficulties. The plaintiff would keep working “when things were hurting”.[14]
[13]T51
[14]T52
35 The plaintiff could not recall from November 2014 until about June 2015, she told Ms Ryley her back was hurting and she was given lifestyle duties.[15]
[15]T52
36 In about February 2015, the plaintiff’s pain worsened for no particular reason. She was unable to continue her duties and she remained off work for a period until recommencing in June 2015, after which she was allowed to perform the lighter night duties.
37 The plaintiff was again cleared for normal duties on 17 June 2015, at which time she was offered a permanent position as a lifestyle assistant. There were no full-time hours in that role so the plaintiff was offered a full-time job with a mixture of lifestyle assistant and PCA night work. That suited her and she did this work until she resigned, lifestyle assistant by day and PCA at night, but not on the same day.[16] Between the two roles there were full-time hours.[17]
[16]T53
[17]T54
38 As a lifestyle assistant, the plaintiff worked with a couple of people in arranging and conducting activities for residents. Because of the physical restrictions she faced at that time, she was unable to do the more physical aspects of that job, such as those that involved bending, squatting or pushing residents in large princess wheelchairs. She also could not participate in activities such as carpet bowls, which involved bending down to the floor to pick up the balls. She was more confined to feeding residents or organising art work for them at tables.
39 The last thirteen months of the plaintiff’s employment were uncomfortable but she took tablets. Some weeks she worked as little as 17 hours and other weeks, as many as forty-six. On average, she worked 30 hours a week at night as a PCA. Her hours varied.[18]
[18]T54
40 The plaintiff agreed more time was spent as a PCA than as a lifestyle assistant. In that thirteen months, she took tablets before she went to work. She used to take Voltaren with her to work if she needed it.[19]
[19]T55
41 The plaintiff agreed she would have told her doctor if she had had major difficulties during this time. Nothing then was making her condition worse than it was.[20]
[20]T55
42 The plaintiff was asked about her attendances at her general practitioners in the last thirteen months working with the defendant.[21] She agreed that many times she saw the doctor with her thyroid issue or in relation to her weight, foot pain or gout, but not for anything to do with her back. She disagreed if there had been continuing niggling problems with her back she would have raised them with her doctor. She was taking Voltaren, which she bought from the chemist. She did not need a prescription so she did not need to go to the doctor and have an appointment “to hold him up for something”. She had enough complaints going to the doctor as it was, without going for “silly things” when she could treat it. Her doctor told her that she could take Voltaren to ease the pain. Over that thirteen months, she was able to work using Voltaren as necessary.[22]
[21]T71
[22]T74
43 In addition to formal physiotherapy, the plaintiff commenced hydrotherapy, which also did not provide any particular pain relief. She had cortisone injections which provided only short-term pain relief.
44 On 19 June 2014, the plaintiff had a lumbar MRI scan. Thereafter, her doctor recommended she have facet joint injections.
45 After these treatments, the plaintiff was referred by Dr Kyaw at St Anthony’s to Mr Craig Timms, neurosurgeon, whom she saw on 11 February 2015. He gave her a CT-guided epidural injection of cortisone, and recommended she persist with conservative treatment, including physiotherapy, hydrotherapy and massage.
46 The plaintiff resigned her employment on 3 July 2016 because her husband was in jail. He had been jailed in December the previous year. She relocated to Ballarat. There were no work issues involved in her resignation.[23]
[23]T56
47 As of October 2016,[24] the plaintiff continued to experience constant back pain. It was often severe first thing in the morning. At night, she often experienced cramps in both legs, which caused her to wake. She then had to get up and walk around. Her pain and symptoms constantly interrupted her sleep. The back pain radiated down both hips as far down as to her legs and knees.
[24]First affidavit
48 The plaintiff had then returned recently to darts, modifying her playing style and trying to alternate between sitting and standing. She now played social darts about once a week but she had not returned to competition darts.
49 At home, the plaintiff continued to have difficulty with household tasks. She tried to rest between lighter domestic duties. She avoided mopping and vacuuming on the same day. Her husband assisted by performing a lot of the housework and in particular, the mopping and vacuuming.[25]
[25]He was in jail at that time
50 The plaintiff was then seeing Dr Shaun, who prescribed Voltaren. She remained in receipt of Centrelink benefits.
The lawn mowing incident
51 The plaintiff and her husband then had a garden which he attended to. She avoided gardening activities. She did make an attempt to do gardening where she mowed the nature strip a number of weeks earlier, but developed increasing lower back and leg symptoms.
52 In her third affidavit sworn in December 2018, the plaintiff deposed that not long after she moved to Ballarat in July 2016, her back pain worsened. Also, not related to any event or occurrence, in September 2016, she had a significant flare up of back pain. This led to her to attending upon Dr Shaun, who arranged a lumbar CT scan, which was carried out on 27 September 2016.
53 The plaintiff confirmed that shortly after moving to Ballarat, she suffered an aggravation of her symptoms.[26]
[26]T67
54 At that time, the garden wanted doing but that was too much for her so the plaintiff thought she would be able to do the nature strip. She got out the brand new mower – an electric petrol mower with a cord – that she had bought a couple of weeks earlier.[27] She mowed a strip up and down the nature strip a couple of times and started to have pain so she stopped and put the mower away (“the lawn mowing incident”).
[27]T75
55 The plaintiff then had to go to the doctor because her back flared up again. It played up after the mowing. She agreed that until then, she had been able to work with Voltaren but after the mowing, something changed and her back played up badly.[28]
[28]T76
56 The plaintiff thought “that was what did it,” mowing a width of less than a foot on the nature strip outside her Ballarat house. At that stage, she could not do the garden and that is why she had a gardener.[29]
[29]T77
57 After the lawn mowing incident, the plaintiff started to see a different doctor in Ballarat, who has treated her since that time. She agreed that ever since then her back had been bad but “it’s stabled itself out as long [I] take my medication”.[30]
[30]T77
58 When the plaintiff first saw Dr Shaun on 13 September 2016, he noted:
“States she had lower back pain WorkCover … happened in 2013 … not any more on WorkCover … L knee pain after lawn mowing … o-e: slightly tender on the medial aspect, happened a week ago … try NSAIDS if not better by another week … needs u-s and ? x-ray.”
59 Mobic and Targin were then prescribed and the plaintiff was referred for a CT scan. That “started it off”. Ever since then, it had been MRI and CT scans, cortisone injections and “that sort of thing”.[31]
[31]T79
60 The plaintiff returned to Dr Shaun ten days later. He then noted:
“Lower back pain is getting worse. Hardly can work or do adls. o-e: radiculopathy L4 … l side. States that it was WorkCover and she can restart WorkCover again! Has seen neurosurgeon ? last year … she states he didn’t operate at Epworth Melbourne, she states that she’s taking Voltaren, two tablets with no help. She states she has GP MP in place. The plan was for pain management and CT scan might need referral to see neurosurgeon as well.”
61 The plaintiff agreed that in her mind that was when her back went bad again after the lawn mowing incident with the knee pain and back pain. Back pain just did not get better. She never disputed this. She agreed that before this incident, she had recently come from Melbourne, where she had been working effectively full time, and on her move to Ballarat, she hoped to start working again full time and had actually set about looking for work.[32]
[32]T80
62 The plaintiff agreed she told Mr Carey, when seen on 18 July 2016, that she was actively seeking work. She did want to work. She was actively seeking the same type of work she had done before as a PCA and that was what she enjoyed doing. She had contacted a place in Ballarat that was going to do community work so that she could go to people’s homes and she was waiting for an interview.[33]
[33]T80
63 The plaintiff agreed that until something changed when she was mowing the lawn and her back and knee got bad, she thought she could continue to do the sort of work she had been doing with the defendant for the last year or so – “Yeah, as long as it was the same”.[34]
[34]T81
64 The plaintiff agreed it would not be correct to say that when she moved to Ballarat, there was a gradual deterioration in her condition. Rather, when she moved to Ballarat, she was in the same condition as she was in Melbourne until something changed when she was mowing the lawn – “exactly, yes”.[35]
[35]T81
65 The plaintiff‘s back was troubling her when she saw Mr Carey before going to Ballarat. It was no different than it had been for the previous twelve months. It was stable as long as she took medication before she did anything.[36]
[36]T89
66 The plaintiff could not recall, before going to Ballarat, any time her back was completely better. She had to be careful what she did but it was not as bad as what it is now.[37]
[37]T90
67 The plaintiff had done mowing before she hurt her back. She was not doing anything difficult in the lawn mowing incident. She was not giving it a heavy pull or doing a heavy lift. It was a brand new mower and she went up and down and did not even finish the grass. It was just two lines and the rest of it was sticking up because she could not finish it because of the pain. There was not really an incident.[38]
[38]T90
68 Prior to the lawn mowing incident injury, mowing was not something that was ever a problem for the plaintiff. She had done it before the incident injury on their larger property at Monbulk.[39]
[39]T90
69 The plaintiff agreed that she intended to do some carer work at Ballarat and that there were plenty of nursing homes there and plenty of places for her to go. That was what she anticipated doing and she needed the money.[40]
[40]T91
Further work
70 In a large part, the plaintiff moved to Ballarat in July 2016 because her husband was currently incarcerated nearby. As of October 2016, she was hopeful that he would get out in February 2019. Consequently, she was alone at home, and whilst she did carry out the housework, as a consequence of her back injury, everything took a lot longer. She was unable to do the lawn mowing or gardening so she paid someone to mow the lawns. Before the back injury, she often helped her husband with the household chores such as the lawn mowing. She could not contemplate pushing and pulling on a lawn mower now.
71 In late 2016, the plaintiff was worried about the future. She was always very proud that she had trained later in her life to go in to the personal care industry. Helping the elderly and infirm residents gave her a great sense of satisfaction. As a result of her incident injury, she no longer had the capacity to return to PCA duties. She knew her career would now be restricted to supervisory and lighter PCA tasks. In addition, she was no longer the spontaneous active person she was outside of work. Her injury had left her with constant pain and restrictions.
72 In mid-2016, the plaintiff went to Centrelink to see what she had to do to get some money. They would not pay her until January 2017 until she had used up all of her long service leave. She finally obtained a job in February 2018. She was trying to get something in between but “could not because of the pain, because of what [she] had done”.[41]
[41]T91
73 In late February 2018, the plaintiff began working as a kitchen cook at Happy Jacks Play World (“Happy Jacks”) in Delacombe. She obtained this job through WDEA, a disability service to whom she was referred by Centrelink as she was trying to get a job but was very limited because she could not bend, twist and could not do the job that she wanted to do in the first place.[42] Dr Shaun cleared her for this role.[43]
[42]T91
[43]T81
74 Happy Jacks was aware of the plaintiff’s physical restrictions. As at October 2018, she was working four days, six hours a day – making simple food such as toasted sandwiches, chips and cakes. For the first six months, her job was subsidised. Thereafter, Happy Jacks decided to keep her on and she received a pay rise from $22.30 an hour to $24.30 an hour. She was a casual worker.[44]
[44]T92
75 At work, the plaintiff got help with heavier lifts and in getting items off the bottom shelf, from either the manager or a woman who worked in the nearby coffee shop. She was also fortunate, in that she could carry out some work seated, and she could also sit for a rest when her back was sore from standing for too long. She believed this amount of work was the limit of her work capacity as at the end of a day’s work, her back was very stiff and sore, and indeed she often had difficulty getting into the car to go home.
76 As of December 2018, the plaintiff was still working as a cook at Happy Jacks, four days a week, six hours a day, making simple food. The work was quite light and often there were not many customers. She was fortunate too that in this work, she was able to alternate between sitting and standing which helped to provide some relief of back pain. She continued to get assistance with tasks involving lifting and bending. Notwithstanding this light work, at the end of a shift her back was very stiff and sore. She believed she was working at the limit of the number of hours she could work.
77 When the plaintiff started this job, she was rostered on for Saturday and Sunday and her response was “Oh, my God, all weekend. I didn’t want to work all weekend, I’ve got other things” and she had signed on for something else. If she had then been offered every Sunday she would not have taken the work, because she needed to go to the prison to see her husband.[45]
[45]T88
78 When the plaintiff first took the job at Happy Jacks, she was employed for 24 hours per week. One week it would be Monday, Wednesday, Thursday and Friday. The days could change. The next would be a Monday, a Friday, a Saturday, and a Sunday or a Monday and a Thursday and Saturday and Sunday. Happy Jacks tried to give her a day off in between so she did not work too many days on the trot. She could not work any more than 24 hours. She did so for only the odd hour.[46]
[46]T83
79 The plaintiff agreed she worked 29.5 hours in the week of 22 October 2018 when there must have been an extra party on.[47]
[47]T84
80 There were no extra hours during the week because the business only operated 9.00am to 3.00pm and other extra hours would have been on the weekend. The plaintiff would not say yes if she could do 9.00am to 3.00pm four days a week and have an extra day on the weekend. Obviously she did work 29.5 hours one week but it does not mean that she would every time. If she was given those hours she would not do it. Anyway they would not give her those hours regularly because the whole idea of accepting the job was to take it on without setting her back off and getting back to square one again.[48]
[48]T85
81 The plaintiff agreed, as Dr Shaun recorded in March last year, she enjoyed working.
82 The current owner of Happy Jacks had ceased operating business in December 2018. Having hoped the new owners would employ her, they in fact did so in February 2019. The plaintiff is now working less hours. Twenty-four hours is her maximum. She could not possibly work anymore. When she worked twenty-four hours, she had more breaks than other workers.[49]
[49]T19
83 The current owner is fairly considerate and was prepared to take the plaintiff on under the same conditions as the earlier owner and they know about her disability.[50]
[50]T19
84 The plaintiff has not been able to work 24 hours under the new owner. The most she has worked is 15 hours. Sundays “are gone” and she does not do weekends at all anymore. As far as she knows, that is likely to continue. If she had some weekends and could do 24 hours in total, that would be her limit. Weekends would be more attractive because she is paid more.[51]
[51]T20
85 Due to her current back condition, the plaintiff does not believe she could now work as a PCA on nightshift. Physical aspects of this job which would now be too difficult for her include:
· Pushing a trolley to resident’s room with pads on it to place the pads in their room;
· Doing the round checking on all the residents which entailed looking over them as they were in bed to see if they were alright and checking the condition of their pads;
· Changing of residents’ soiled pads;
· Assisting a patient getting up with the assistance of a sling and the bending and twisting associated with this movement;
· Reliably carrying out hourly observations of patients;
· Prolonged periods of time being seated in between rounds entering file notes on the computer;
· Difficulty doing nightshift as a result of general tiredness from sleeping poorly due to back pain.
86 The plaintiff could not now do work as a nightshift PCA, because her back is a lot worse than it was in 2016. Back then, it was not like it is now.[52]
[52]T65
87 The plaintiff retained her job with the new owners at a lesser rate, working 15 hours. She did not knock back that work because she could not afford to and could not live on Centrelink.[53]
[53]T92
88 The plaintiff intends to stay in Ballarat, where the lifestyle is cheaper and everything is central.[54]
[54]T96
89 The plaintiff is not going to look for PCA work. She is going to stick to what she has because it is manageable and she can live on it.[55]
[55]T93
Statement of gross earnings
Tax Return Year Gross Income Gross Weekly Earnings 2009 $36,547.00 $702.83 2010 $38,062.00 $731.95 2011 $38,207.00 $734.75 2012 $40,712.00 $782.91 2013 $40,480.00 $778.45 2014 $31,956.00 $614.54 2015 $42,759.00 $822.29 2016 $54,564.00 $1,049.31 2017 $27,456.00 $528.00 2018 $9,879.00 $189.97 Current symptoms and treatment
90 In April last year, the plaintiff agreed that she had described her back pain as intermittent, sometimes good, sometimes bad – “It’s basically it’s worse at some times.”
91 As of July last year, the plaintiff agreed that with her medication, she was stable and the pain was manageable. Whilst she might have told Dr Shaun in January this year that she now felt great and still had pain on and off but could manage it okay, “nothing is changing.”[56] Saying she felt great now would be a figure of just saying, “Yeah, I feel good, I’ll be careful”.[57]
[56]T85
[57]T86
92 The plaintiff continues to suffer from back pain in much the same way as earlier deposed to. Leg and back pain appear to be getting progressively worse. It is constant, however, it was worse with too much activity and first thing of a morning. Movements involving bending and twisting are far more difficult and aggravated the pain. Due to back pain she could not lift as heavy weights.
93 The plaintiff continues to often experience cramps in both legs, normally when getting into bed. The back pain and leg cramps cause her to have interrupted sleep and she sleeps very poorly. She normally sleeps with a pillow between her legs as that helps to ease her back pain. That pain still goes into her legs and the right leg pain goes down to her foot, worse than in her left leg.[58]
[58]T86
94 As a result of the back and leg pain, the plaintiff finds it difficult to be seated or to stand in one position for prolonged periods. She can stand for about one hour before she has to sit for a little while, and she cannot walk as far now before she has to rest because of back pain. Walking approximately half a kilometre is her limit. If her back is playing up, she can barely walk at all. She tries to avoid movements involving bending and twisting as they increase her back pain significantly. If she drives for more than about one hour, she experiences increased back pain and cramps in both legs.
Treatment
95 In 2017, and for approximately four or five months, the plaintiff had physiotherapy at the Queen Elizabeth Centre in Ballarat.
96 On a couple of occasions in 2017, the plaintiff also attended the Neurosurgery Department at the Royal Melbourne Hospital. On 13 July 2017, the plaintiff had a CT-guided epidural injection in her lumbar spine. That injection was of limited short-term benefit. She had a further lumbar CT scan on 23 January 2018.
97 The plaintiff went to the United Kingdom for three weeks in December 2017 as her father had passed away there. Whilst in the UK, she suffered from pain and restricted lumbar movement.
98 In mid-2018, the plaintiff attended a one-day pain management information session at the Ballarat Base Hospital; however, she did not find that overly helpful. She was then having hydrotherapy approximately once per week.
99 The plaintiff continues to see Dr Shaun at Ballarat Community Health. For relief of back and leg pain, she often takes Voltaren 25 milligrams. She also takes Targin, 5 milligrams twice a day. She takes the anti-inflammatory medication, Mobic, one per day. For her thyroid condition she is on Thyroxin and also takes cholesterol medication. Due to decreased activity since the back injury, the plaintiff has put on about 10 kilograms.
Happy Jacks’ Pay records
100 The plaintiff was employed by the first owner from 16 July to 26 December 2018. On alternate weeks, usually when working 24 hours including six on a Sunday, the plaintiff earned $642.00. Working 24 hours normally during the week, she earned $584.00.
101 In the week starting 22 April 2018, the plaintiff worked 29.5 normal hours, earning $718. In a number of weeks following, she worked less than 24 hours, working 23 hours, earning $559.82, 22 hours, earning $593.86 and in the last week starting 26 December 2018, she worked 20 hours, earning $486.80.
102 The wage records from the new owner started on 4 February 2019.
103 In the first week, the plaintiff worked 15 hours at $24.34 an hour, earning $365.10. In the following weeks, she worked 6.5 hours, earning $158.21; 5 hours, earning $121.70; 6 hours, earning $146.04 and most recently, 8.5 hours, earning $206.89 for the week of 4 March 2019.
Treaters – general practitioners
104 Dr Nasralia at St Anthony first saw the plaintiff the day after the incident when she presented with acute back pain and sciatica. He noted she was put on WorkCover with modified duties on 6 October 2013 and continued on WorkCover till 2014.
105 In June 2014, the plaintiff had her first steroid injection and she was feeling better. She had her first clearance on 10 July 2014.
106 As the plaintiff’s symptoms were worsening, she was referred to Mr Timms in December 2014 who advised she was not a candidate for surgery and that she was fit for light duties. On 17 June 2015, the plaintiff was feeling better and she was given a second clearance.
107 Dr Nasralia thought the expected prognosis according to the history was uncertain and that the plaintiff may suffer from back pain again.
108 Dr Shaun Mohammadsaedi (“Dr Shaun”) at Ballarat Community Health first saw the plaintiff on 13 September 2016, after the lawn mowing incident.
109 In his report of 19 February 2018, Dr Shaun diagnosed degenerative changes at L4-5 and mild bilateral exiting foraminal stenosis and also a disc bulge at L5‑S1. He thought the plaintiff’s prognosis was unclear but noted usually osteoarthritis slowly progress.
110 In Dr Shaun’s view, the plaintiff’s condition had then stabilised. She experienced flare ups and she found mornings more painful.
111 Dr Shaun noted the plaintiff was referred to Royal Melbourne Neurosurgery Clinic and was discharged in June last year. The plaintiff also saw QEC physiotherapist and stated she was discharged as well. She was given some exercises to do at home for her back pain
112 Dr Shaun considered the plaintiff would require further physiotherapy, as it was the best for her condition. He also thought she required referral for steroid injection for her bulging disc, which she declined as she had one injection in the past and it did not work.
113 Dr Shaun thought the likelihood of future deterioration was unclear.
114 The plaintiff told Dr Shaun she was unable to perform pre-injury work as a PCA. He considered her suitable for modified duties as long as there was no repetitive bending, lifting heavy objects, pushing and pulling.
Mr Craig Timms
115 Mr Timms, orthopaedic surgeon, examined the plaintiff in February 2015.
116 The plaintiff reported that whilst at work at a nursing home as a PCA in June 2013, she was performing a lifting manoeuvre when she had severe pain in her back. She had trouble getting up and felt pain and distress from her back down her legs, she saw her general practitioner, had some scans and x-rays and was told she had a disc out in her back. She was off work for six weeks with rest, medications and some physiotherapy but then returned to work on light duties.
117 The plaintiff utilised physiotherapy and acupuncture and then returned to work eventually back to full duties. In December 2014, she suffered a recurrence of her symptoms. She saw her general practitioner and was placed on light duties and had been on light duties ever since. She reported getting back pain and sciatica with occasionally her legs both going numb. This gave her limitations in her ability to sit, stand and mobilise.
118 On examination, the plaintiff had low midline pain.
119 Mr Timms re-examined the plaintiff on 11 February 2015. The plaintiff then reported back pain and bilateral sciatica, no focal deficit to examine.
120 The plaintiff’s MRI scan revealed a disc injury at L4-5, which Mr Timms felt was likely the origin of her symptoms. He recommended that she have prolonged courses of physiotherapy, hydrotherapy and massage and an epidural cortisone injection at the lumbar level L4-5.
121 In Mr Timms opinion, the plaintiff did not require any neurosurgical operative intervention. He recommended that she remain at work on light duties.
122 Mr Timms diagnosed a lumbar L4-5 disc injury.
123 Mr Timms considered the plaintiff was likely to suffer chronic back pain and bilateral sciatica and that condition had stabilised. He did not think she would require any neurological operative intervention.
124 Mr Timms suspected that the plaintiff was likely to suffer an exacerbated rate of deterioration of the lumbar spine from a disc injury at L4-5, leading to further degenerative changes and possible development of neural compression.
125 Mr Timms thought the plaintiff was then incapacitated with regard to her pre-injury work, however at the date of the examination, noted she was performing light duties. He thought providing her symptoms did not progress, she could remain at work on light duties.
The Plaintiff’s medico-legal evidence
126 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff in August 2013 on behalf of the insurer. The following history of the incident circumstances to Mr Polke was relied upon.
127 On the said date while manoeuvring patients, the plaintiff felt sudden lower back pain and the next day felt pain down the right leg. She was off for three days and saw her general practitioner, then returned to work the following week, but her pain recurred, particularly in her right leg. A CT scan was arranged and the plaintiff had a couple of weeks off work and commenced physiotherapy.
Dr Joseph Slesenger
128 Dr Slesenger, specialist occupational physician, examined the plaintiff on 8 February 2018.
129 Dr Slesenger noted the plaintiff was injured at work on the said date lifting a resident out of a bed when the patient’s bed was broken and could not be raised. She developed immediate lower back pain whilst stretching forward to lift the resident. The pain radiated into her right leg.
130 The plaintiff advised Dr Slesenger that her symptoms improved moderately and she was able to return to work, initially performing administrative duties, working on a part-time basis - up to 12 hours a week. She gradually increased her hours and activities and was able to return to working night shift, performing pre-injury tasks. She advised that on night shift, she was not required to perform any heavy lifting and was always supported by another member of staff. She was occasionally required to assist with dressing and toileting; however, these patients were generally ambulant.
131 The plaintiff remained in this role and was able to increase her hours up to pre-injury hours and ceased work in July 2016, when she moved to Ballarat (to be closer to her family).
132 Shortly after this move, the plaintiff suffered an aggravation of her symptoms. She advised there was no specific injury, but rather her symptoms deteriorated gradually. She advised that her family assisted her with move to Ballarat and setting up her new home. She saw her general practitioner, was prescribed Voltaren and recommenced physiotherapy.
133 The plaintiff’s symptoms had not improved and she was referred to the Royal Melbourne Hospital, where she saw a neurosurgeon who advised that there was nothing further that could be done. She was not referred to a pain clinic.
134 After the deterioration of her symptoms in 2016, the plaintiff advised that the symptoms continued and did not return to their previous level, before moving to Ballarat.
135 On examination, the plaintiff complained of ongoing moderate to severe pain in the lower back at a level of 8/10. The pain was dull in character, but occasionally sharp, radiating to both legs, the right being worse than the left. The leg pain was less intense than the back pain at a level of 6-7/10.
136 On examination, there was tenderness on palpation of the lumbar spine. Lumbar movements were restricted.
137 Dr Slesenger noted that after moving to Ballarat, the plaintiff had applied to work as a PCA in a community aged care. It was her intention to limit her duties to respite care and community care. She had not been appointed. Her GP advised that after the exacerbation of her symptoms, she should not commence work in this role and she had not returned to work since. She had not undergone retraining or assistance with regard to returning to work.
138 Dr Slesenger diagnosed a mechanical injury to the lumbar spine and aggravation of degenerative disease of the lumbar spine.
139 Dr Slesenger thought an exacerbation of the plaintiff’s symptoms in 2016, appeared to be a significant causal factor with regard to her current residual impairment and disability. She advised that there was no specific trigger with regard to the exacerbation of her symptoms, but rather the symptoms deteriorated gradually.
140 In order to address this issue further, Dr Slesenger suggested it may be useful to review the relevant clinical records from the plaintiff’s treating GP in Ballarat.
141 Dr Slesenger recommended the following restrictions: avoiding push, pull carry or lift over 5kgs, avoiding repetitive bending or twisting, avoiding prolonged static postures and avoid exposure to whole body vibration. He advised against the plaintiff returning to her pre-injury role, noting the manual handling and the postural requirements.
142 Whilst the plaintiff was able to return to work as a PCA; however, it appeared to Dr Slesenger that it was in a well-supported environment, performing modified duties. He thought that she could not return to unrestricted PCA duties.
143 Taking into consideration the plaintiff’s age, current residential location, her current symptoms and functional limitations, her past occupational experience, her qualifications and her basic computer skills, Dr Slesenger thought she was unlikely to be able to return to work in a role for which she has suitable training and experience on a consistent and reliable basis. He anticipated that this residual impairment would likely continue into the foreseeable future.
144 Dr Slesenger thought that treatment was likely to be limited to improving the plaintiff’s capacity to adapt to her residual impairment and disability.
145 On re-examination on 17 January 2019, the plaintiff advised that the symptoms had not changed. She described severe and constant residual lower back pain, centred in the lower back, radiating into her right leg. The pain was described as being dull and burning in character and severe.
146 Further, the plaintiff advised that after the incident, she ceased work for a week returning to work for a further week and then was off work for about 6 weeks. She then returned to work performing light duties, including light lifestyle and life care activities. She continued to work on reduced hours' basis - up to 20 hours a week. She then ceased employment when she moved from Pakenham to Ballarat and subsequently secured employment with the support of WDEA.
147 The plaintiff commenced work in April 2018, working in a cafe, preparing light meals between 9am and 3pm, three to four days a week. She worked for about 23 hours per week.
148 The job demands required the plaintiff to stand, although she could sit regularly. She was not required to receive incoming deliveries or to perform any cleaning tasks. She advised that her attendance at work was reliable (she generally worked alternate days in order to provide opportunities for any aggravation of her symptoms to settle between shifts).
149 The plaintiff ceased work in December 2018 when the cafe closed. Currently, she was looking for other employment through WDEA.
150 The plaintiff was struggling to cope with working 24 hours per week, noticing that the pain was aggravated towards the end of the working days and she had particular difficulty working consecutive days.
151 Having reviewed the surveillance footage, Dr Slesenger thought there appeared to be some discrepancy between the range of the plaintiff’s lumbar spinal flexion noted during the surveillance footage and the capacity demonstrated at evaluation. He also found some non-organic features on evaluation. However, taking the evidence as a whole, Dr Slesenger was of the opinion that the non-organic element in the plaintiff’s presentation was of limited significance.
152 Dr Slesenger thought the plaintiff retained the capacity for work five hours a day three days a week with restrictions.
Mr Thomas Kossman
153 Mr Kossman, orthopaedic surgeon, examined the plaintiff on 13 March 2018. She was then not working having last worked in July 2016.
154 The plaintiff reported suffering from pain radiating into her right leg. She could walk 10 to15 minutes. She had difficulties bending and also putting on her socks.
155 On examination, Mr Kossman recorded lumbar flexion at 50 degrees, extension 20 degrees, rotation 50 degrees both sides, side bending 40 degrees and straight leg raise at 40 degrees on both sides.
156 Mr Kossman diagnosed Lumbar spondylosis in form of L4-5 disc degenerative changes, facet joint degenerative changes and compromise of the foramina at this level.
157 In Mr Kossmann’s view, the plaintiff suffered an aggravation of pre-existing degenerative changes at the L4 level after she lifted a resident in an aged care facility where she was working for fourteen years.
158 Mr Kossman opined that the plaintiff had no work capacity to return to her pre-injury work as a PCA in aged care. He thought she should avoid walking long distances, on uneven grounds, upstairs and downstairs, inclines and declines, climbing up and down ladders, kneeling or squatting or carrying heavy items weighing more than 5 kilograms. In his opinion, this incapacity will continue for the foreseeable future.
159 Mr Kossman considered the aggravation of degenerative changes in the plaintiff’s lumbar spine, which she sustained on 17 June 2013 during the course of her employment with the defendant, continued to be a significant contributing factor to her present symptoms, restrictions and impairment.
160 As a result of the plaintiff’s lower back injury and present condition, the plaintiff was permanently restricted in relation to her employment and activities involving bending, lifting, twisting, stooping, pushing, pulling, lifting, repetitive pushing, pulling or lifting.
161 Mr Kossman regarded the plaintiff to have no capacity to perform pre-injury duties and he believed that this incapacity was permanent and likely to last for the foreseeable future.
162 In his subsequent report of 17 January 2019, Mr Kossman noted the plaintiff confirmed she continued working for the defendant until July 2016.
163 On this examination, Mr Kossman noted the plaintiff had a significant flare-up of her back pain and she was referred for a lumbar CT scan, which was performed on 27 September 2016. She was then referred to The Royal Melbourne Hospital Neurosurgical Out-Patient Centre.
164 The plaintiff underwent a vocational assessment on 8 May 2018 which identified the following suitable employment options: fast food cook; telephonist; menu monitor; admission clerk and receptionist.
165 On examination, the plaintiff complained that she continued to suffer from pain in her lumbar spine, which is radiating into her right leg.
166 Mr Kossman made a similar diagnosis as on initial examination.
167 Mr Kossman again considered the plaintiff to have no work capacity to return to her pre-injury work as a PCA. He noted she was working as a kitchen hand from February to December 2018. Whilst she may have a limited work capacity for modified/light duties, he believed that she should not engage in any physically demanding work or work where she has to walk long distances, on uneven grounds, upstairs and downstairs, on inclines and declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5kg. Her incapacity will continue for the foreseeable future.
168 Mr Kossman noted the plaintiff had been found to be suitable for working as a fast-food cook, telephonist, menu monitor, admission clerk and receptionist. He believed that she may qualify for some of these employment options as long as she does not have to engage in any physically demanding work or work where she has to walk long distances, on uneven grounds, upstairs and downstairs, on inclines and declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 2 to 5 kilograms.
169 Mr Kossman recommended a return-to work program, starting with two hours every alternate day and then slowly increasing working hours. He thought time will tell if the plaintiff is able to work full-time on modified/light duties.
Investigations
170 X-ray lumbosacral spine – 19 June 2013:
“The vertebrae are correctly aligned. There is moderate anterior and right-sided spondylosis at the L4/5 level. No other bone abnormality seen. The L4/5 disc space is moderately narrowed and there are moderate degenerative changes in the lumbosacral facet joints.”
171 CT scan lumbosacral spine – 17 July 2013:
“Findings: T12-L1 and Ll-2: No abnormality is present at these levels. L2‑3: No abnormality is noted. L3-4: No abnormality is seen at this level. L4-5: Disc space narrowing is present, with some reactive endplate sclerosis. There is only minimal disc bulging. L5-S1: Mild facet joint degenerative changes are present bilaterally, with no disc bulging or other finding.
Comment: L4-5 disc degeneration. Mild L5/S1 facet joint arthrosis.”
172 MRI scan lumbar spine – 19 June 2014:
“1. No central canal or neural compressive foraminal stenosis.
2. Lower lumbar facet degeneration most marked at the L4/5 level. This may be accounting for the patient's chronic lower back pain and if clinically indicated, CT-guided steroid facet joint injections could be considered.”
173 CT-guided facet joint injections – 7 July 2014:
“Using aseptic technique and under CT guidance, lcc of Celestone and lcc of Marcaine was injected to each of the left and right L4/5 facet joints. The procedure was somewhat difficult for Patricia in that she struggled with increased back pain in the prone position. It was technically uncomplicated and Patricia reported some relief of her usual symptoms prior to leaving the clinic.”
174 Bone density radiology – 4 September 2014:
“Normal bone density.
CT scan lumbosacral/coccygeal spine (28 September 2016)
The major finding is subarticular recess stenosis on the right side at L4/5, with potential for irritation of the right L5 nerve in this location and, to a lesser extent, the left L5 nerve root at this level. Difficult to account for the clinical history of left-sided L4 radiculopathy, with no evidence of subarticular recess at L3/4 on the left or exit foraminal stenosis on the left side at L4/5.”
175 CT scan lumbar spine – 23 January 2018:
“Degenerative changes at L4/5 have mildly progressed compared with the previous study but there is only mild bilateral exit foraminal stenosis. A disc bulge at L5/S1 has slightly progressed compared with the previous scan, causing mild left lateral recess stenosis.”
The Defendant’s lay evidence
176 Melissa Ryley, the defendant’s facility manager, swore an affidavit on 29 October 2018. She started work with the defendant in 2008 and had been in her current role since 2012.
177 According to the plaintiff's personnel file, Ms Ryley believed the plaintiff started employment with the defendant as a kitchen hand on a permanent-part time basis in July 2002. In or around 2012, her role changed to PCA. She worked on a permanent-part time basis and her hours varied from 27.5 to 32.5 hours per week (four to five shifts per week). As a PCA, her duties included assisting residents with their daily living activities such as hygiene, meals, mobility and social activities.
178 Ms Ryley was aware the plaintiff was alleging that she sustained an injury at work on 17 June 2013. She was the plaintiff's return to work coordinator. She believed the plaintiff completed her shift on 17 June 2013. The plaintiff then took a combined 28.5 of annual leave and sick leave between 18 June 2013 and 23 June 2013. She returned on her normal pre-injury duties and hours on or about 24 June 2013 and remained until on or about 22 July 2013, before taking sick leave until early August 2013. Ms Ryley received the plaintiff’s claim for compensation form on or about 29 July 2013.
179 The plaintiff returned to work on restricted hours undertaking modified/light lifestyle assistant duties in early August 2013 and her duties included handing out tea to the residents, accompanying the residents while they walked and reading newspapers to them. She gradually increased her hours to pre-injury hours by about March 2014.
180 On 10 July 2014, the plaintiff was medically cleared to return to her pre-injury hours and duties without any restrictions. The plaintiff advised Ms Ryley at the time that she had recovered and that she was able to get back to her pre-injury duties and hours.
181 In July 2014, the plaintiff asked her whether she could work nightshift PCA duties because she was experiencing financial difficulties. Nightshift attracted a shift allowance of $39.80 per shift in the 2014-2015 financial year and $41 per shift in the 2015-2016 financial year. The plaintiff was rostered nightshifts from around this time, although her PCA duties post July 2014 also included some dayshift duties.
182 Following her clearance for pre-injury duties on 10 July 2014, the plaintiff carried on her PCA duties (which consisted of a combination of nightshifts and dayshifts) without any issues or incidents. Ms Ryley regularly followed up how she was coping and she made no complaints about her duties. She did not observe the plaintiff struggling with her duties or her back condition affecting her ability to perform her pre-injury duties.
183 On or about 20 November 2014, the plaintiff informed Ms Ryley that she had re-exacerbated her injury. The plaintiff did not advise her of the circumstances of the re-exacerbation. She was put on another return to work program and undertook modified/light lifestyle assistant duties on pre-injury hours. On 17 June 2015, the plaintiff was medically cleared to return to her pre-injury hours and duties without any restrictions.
184 At around the time the plaintiff was cleared to return to her pre-injury hours and duties, she indicated that she preferred the lifestyle assistant duties which she had undertaken as per the return to work program between November 2014 and June 2015. Accordingly, in or about June 2015, the plaintiff was offered and she accepted a permanent position in the role of lifestyle assistant.
185 However, the defendant was unable to offer the plaintiff the lifestyle assistant duties on full-time hours. In addition, the plaintiff reported that she wanted to continue undertaking nightshifts because of financial problems and due to the fact that the nightshift attracted an allowance (see paragraph 7). This meant that for the period June 2015 to 3 July 2016 the plaintiff undertook nightshift PCA duties and dayshift lifestyle assistant duties.
186 The plaintiff made no complaints about her duties post 17 June 2015. Ms Ryley thought she appeared to be coping fine and seemed physically fine.
187 The times audit documentation showed that the plaintiff worked an average of 33 hours per week in the period June 2015 to 3 July 2016, which included nightshift PCA duties, as well as dayshift lifestyle assistant duties. This documentation also shows that during the period June 2015 to 3 July 2016, the plaintiff undertook between 17 and 46.75 hours per week of nightshift PCA duties, or an average of 30 hours per week of nightshift PCA duties.
188 The plaintiff continued to perform in her role as a Lifestyle Assistant and PCA without any medical restrictions until she resigned on 3 July 2016. As to the plaintiff's reasons for resignation, she advised Ms Ryley that she and her family were moving to Ballarat because it was cheaper to live there.
The Defendant’s medico-legal evidence
Mr Battlay
189 The plaintiff was examined by Mr Battlay in February 2014.
190 The plaintiff said that in the course of her work on the said date while working with a partner, cleaning and washing a patient, she gradually developed a severe pain in her back. She attended her general practitioner the following day and was given medication, and initially put off for a week, before she was able to resume working normally for another two weeks. She then developed a pain in her legs, which she had not initially experienced, nor associated with her back pain, and was put off for a further two weeks.
191 At the time of the examination, the plaintiff’s leg pain had largely resolved. Her pain was then mainly in the back at L5, with only cramps in the thighs at night and no real pain.
192 On examination, the plaintiff walked without a limp and held her lumbar spine in a normal posture. There was some restriction in extension and lateral flexion. There was no neurological loss in the lower limbs.
193 Mr Battlay diagnosed symptomatic L4-5 disc degeneration and thought it reasonable to accept the plaintiff’s work on the said date caused aggravation and created symptoms.
194 At that stage, Mr Battlay thought the plaintiff could probably do night shift without restrictions, and that was worth exploring, as she proposed. He thought she should avoid bending below waist height and lifting in excess of 10 kilograms. Similar pushing and pulling restrictions should be applied. He noted the plaintiff was working full pre-injury hours now, so her manual handling can be gradually lifted.
Mr Roy Carey, orthopaedic surgeon
195 Mr Carey, examined the plaintiff in July 2016.
196 Mr Carey noted, in the course of her normal work with no specific injury, the plaintiff complained to her partner of some lower back discomfort. She altered her duties until about lunchtime and the pain became more severe. She saw her general practitioner the following day.
197 Mr Carey noted the plaintiff’s time off work and her first clearance in July 2014, but she never returned to normal duties thereafter. Her back symptoms slowly increased and again she went off work in February 2015 and returned in June, when she was given a second complete clearance. However, even though she went on night duty and was theoretically doing normal hours and duties, she never returned to much heavier daytime work. She continued on normal duties until she resigned on 3 July 2016, after she had moved to Ballarat from Beaconsfield. At the time of that examination, she was actively seeking work.
198 Mr Carey noted the plaintiff was off work only because she had just moved house and she was hoping for a job interview soon.
199 The plaintiff, then, had constant central lumbosacral area pain. That had not left her since the date of injury. She had intermittent discomfort radiating from this area over the side of the hips and outer thighs to the knees, but not below. She did not have leg symptoms.
200 On examination, the plaintiff’s flexion was such she could touch halfway down her shins and her lumbar lordosis flattened. There was no spasm. Extension and lateral flexion were markedly diminished because of pain. There was a fair range of rotation.
201 Mr Carey thought the plaintiff had sustained aggravation of pre-existing asymptomatic lumbar spondylosis as a result of the incident. That had been managed perfunctorily with simple medication and not much else. She now had chronic lower back discomfort, intermittent referred discomfort in the lower limbs and no evidence of radiculopathy.
202 Mr Carey then thought work continued to materially contribute to the plaintiff’s current situation. In his view, the prognosis was for continued discomfort into the foreseeable future. The plaintiff was not likely to suffer injury or harm by engaging in appropriate occupation and daily activities, noting, indeed, she was seeking work at that stage.
203 Mr Carey noted, with interest, that this condition had been accepted as an injury – work-related. While the symptoms allegedly occurred first at work, there was no specific incident of injury and all the contemporaneous imaging indicated pre-existing degenerative findings with no acute pathology.
Mr Michael Dooley, orthopaedic surgeon
204 Mr Dooley examined the plaintiff on 10 April 2018.
205 The plaintiff then complained of ongoing low back pain, aggravated by prolonged standing. She could note a cramping type pain in her thighs at night.
206 On examination, there was tenderness of the low lumbar region. There was some restriction of lumbar movement. There was no neurological involvement.
207 Mr Dooley considered the plaintiff had naturally occurring and age related degenerative disc disease of the lumbar spine affecting mainly the L4-5 and L5-S1 levels. She described the onset of acute low back pain and lower limb pain during the course of her work in June of 2013 when attempting to lift an aged care resident.
208 Mr Dooley believed that in this episode the plaintiff sustained a soft tissue injury to her lumbar spine that had involved some aggravation of her underlying degenerative disc disease.
209 The plaintiff reported persisting pain despite a range of conventional conservative treatments including injections. She continued in her work on modified duties for around three years post injury before she made a decision to retire and relocate to Ballarat.
210 In Mr Dooley’s view, the plaintiff presented as a sensible and genuine historian. Accepting the soft tissue injury that she sustained during the course of her work in 2013, it was Mr Dooley’s view that to a degree the constancy and intensity of her ongoing pain and her described disability were greater than one would expect to see for the organic injury sustained.
211 Mr Dooley believed that the plaintiff had an understandable psychological reaction to her situation that influences her ongoing symptoms.
212 Mr Dooley expected the plaintiff to suffer some ongoing intermittent low back pain and intermittent lower limb pain. He would not expect her orthopaedic condition to deteriorate over time and above the natural evolution of her underlying degenerative disc disease. He did not believe she will require surgery for the soft tissue lumbar spine injury sustained in the work-related episode of June 2013.
213 From an orthopaedic viewpoint only, Mr Dooley thought the plaintiff would have a physical capacity to carry out light physical work and clerical duties. She is currently carrying out such work around four days per week at a play centre. When employed in aged care she was working around 25 to 30 hours per week post injury and then around 20 hours per week. He believed that she would have a physical capacity to work these hours.
214 Mr Dooley was asked to consider the plaintiff’s suitability for a number of jobs contained within a vocational assessment report which identified potential job options including a fast food cook, telephonist, menu monitor admissions clerk and receptionist.
215 From an orthopaedic point of view only, Mr Dooley believed the plaintiff would have a physical capacity to carry out the duties required in the various identified job options. In terms of clerical type work, he thought she might note difficulty sitting in the one position for a prolonged period of time. In this regard, she would need to be able to get up and move around regularly.
216 It was Mr Dooley’s understanding that when the plaintiff was working at the aged care facility she was not working full time. Prior to her resignation, she was working around 20 hours per week. Currently she worked around 24 hours per week. Overall, he did not believe that she would be able to increase her hours beyond 24 hours per week.
217 Having viewed surveillance film, Mr Dooley remained of the view that the plaintiff sustained a soft tissue injury to her lumbar spine during the course of her work on 17 June 2013. He believed that the injury she did sustain is still materially contributing to her current condition. He believed that her current condition also relates to her naturally occurring underlying degenerative disc disease and to her psychological reaction to her situation.
218 Further, Mr Dooley believed that at the time of the work related episode, the plaintiff had established naturally occurring and age related degenerative disc disease of the low lumbar spine. He believe that her soft tissue injury involved some aggravation of this underlying condition.
219 Mr Dooley considered the plaintiff to have the physical capacity to carry out the duties of a lifestyle assistant in an aged care facility. He did not think she would be able to regularly carry out the duties of a PCA.
220 Mr Dooley thought the plaintiff had a physical capacity to carry out light physical work and clerical type work. She was currently carrying out suitable work 24 hours per week. Ms Ryley stated that the plaintiff was working from between 27.5 to 32.5 hours per week. The plaintiff told him that she made a decision to resign from her employment. He was advised she was then carrying out the duties of both a PCA and also a lifestyle assistant, working around 30 hours per week. He believed therefore that the plaintiff had a physical capacity of working at least around 30 hours per week.
221 In Mr Dooley’s view, the plaintiff had a physical capacity of carrying out work as a cook of work at around 30 hours per week.
222 On re-examination on 28 February 2019, Mr Dooley’s opinion as to the diagnosis remained.
223 Mr Dooley considered the plaintiff was carrying out suitable employment as a cook in a child care centre, working four days per week, six hours per day. From an orthopaedic point of view, it was possible that she could increase her hours to around thirty per week.
224 Mr Dooley thought that the plaintiff had the physical capacity to carry out the duties of the occupations outlined in the vocational assessment report of July 2018. He noted she had previously worked around 20 hours per week at the aged care facility and she was working 24 hours per week as a cook. She felt that these hours were close to her maximum. It was his view, that the plaintiff had a physical capacity to work up to and around 30 hours per week.
Dr Mary Wyatt, occupational physician
225 Dr Wyatt first examined the plaintiff on 24 April 2017.
226 The plaintiff then described soreness in the central back and extending to the sides and pain extending into both legs, worse on the right.
227 On examination, there was restriction of lumbar movement and some tenderness over the lower lumbar spine.
228 Accepting there was an incident on the said date that materially contributed to the plaintiff’s back pain, Dr Wyatt did not believe the plaintiff’s workplace injury materially contributed to her ongoing back problem.
229 Dr Wyatt would accept that an incident such as that could contribute to back complaints for up to six to 12 months. However, she did not think the incident would result in a permanent or long term back problem. She noted studies revealed that about a third of the population has backache most days and one third of the population will experience episodes of back pain and one third will never experience a sore back. Thus, this is a fairly common problem and long term back problems are common in those who do both sedentary and manual work.
230 The plaintiff had not had a major disc protrusion occurring through a specific incident of trauma. Dr Wyatt’s overall impression was that she had a long term back problem which is constitutional in nature.
231 Dr Wyatt did not believe the incident on the said date by itself would have resulted in the plaintiff not being able to return to her normal job. The plaintiff did not present to be fit to return to her normal job but she was fit for suitable employment. She was then currently working 24 hours a week on modified duties as a cook in a kitchen. Dr Wyatt thought the plaintiff would struggle to do that role full-time but may be able to increase her hours of work up to 30 hours a week.
232 Dr Wyatt considered the plaintiff capable of working up to 25 to 30 hours a week as a fast food cook but believed she would struggle to work a longer number of hours beyond that. The job required regular standing.
233 In Dr Wyatt’s view, roles as a telephonist, admissions clerk and receptionist were suitable for full-time work, though the plaintiff did not have experience in such roles. The menu monitor role was suitable for full-time work and carried the advantage that the plaintiff had worked in hospitality. Dr Wyatt noted that some of the menu monitor work also involved manual activities in the kitchen, though such activities are a relatively small component of the role. She considered that was a suitable role for full-time work for the plaintiff.
234 Dr Wyatt again reported on 3 November 2018, having been provided with the plaintiff’s affidavit and surveillance material.
235 As outlined in her first report, Dr Wyatt thought the plaintiff’s work activities were no longer a contributing factor to her ongoing lumbar spine problem.
236 The fact that the plaintiff returned to doing up to 46.75 hours of work a week on her normal job suggested significant capabilities. This was on night shift, which was generally less physical in aged care.
237 Dr Wyatt noted nonetheless, this was a significant level of work and did suggest that the plaintiff had the capability to work a greater number of hours in her role as a cook, or other suitable duties as outlined in the medical report.
238 It suggested that the plaintiff had the capacity to work her normal hours of work, which Dr Wyatt understood before the injury were 27.5 to 32.5 hours a week.
239 This was largely on the basis of the further information provided to Dr Wyatt, which noted the plaintiff returned to her normal job and the hours she was previously working.
240 The only other comment Dr Wyatt would make is that it was possible that the plaintiff’s constitutional or underlying back problem had become more troublesome, meaning her hours of work were less.
241 Another possible explanation was that the plaintiff did not need to work as many hours as she was living in Ballarat, which in her resignation she advised was because of the lower cost of living. Either way, Dr Wyatt thought these were unrelated to the incidents that occurred on the said date.
242 Dr Wyatt provided a further report having re-examined the plaintiff on 6 February 2019.
243 The plaintiff then advised her overall situation is much the same as when last seen, though she indicated that her back pain is more troublesome and has been gradually worsening
244 Dr Wyatt thought the plaintiff presented with a moderate disability. She diagnosed was chronic low back pain. The plaintiff had some referred pain into her leg, although no radiculopathy and there was no disc protrusion.
245 Dr Wyatt confirmed her opinion that the plaintiff’s work tasks in aged care were no longer materially contributing to her lumbar spine problem.
246 Dr Wyatt did not think the general nature of the plaintiff’s duties had contributed to a chronic low back problem. The fact that her back problem was worsening rather than improving, which was also indicative of a constitutionally-based back problem.
247 Dr Wyatt did not believe there was a work-related back problem preventing the plaintiff from returning to her normal job.
248 Dr Wyatt noted the plaintiff was cleared to return to her normal job at her request, according to the clinical records, one month before she resigned. The plaintiff presented to be fit for suitable employment. Dr Wyatt noted she was working in a café 24 hours a week until it closed. Dr Wyatt believed the plaintiff would be capable of continuing in that role.
249 Dr Wyatt noted the options identified in the vocational assessment report as a fast food cook, telephonist, menu monitor, admissions clerk and receptionist. These roles allowed the individual to change position intermittent. Dr Wyatt thought they were suitable roles for the plaintiff.
250 Dr Wyatt thought because of her constitutional problems, the plaintiff may struggle to work more than 24 hours a week on her feet. The telephonist role, a slightly unusual recommendation noting the plaintiff had no previous office-based skills, would be suitable for full-time work from a physical perspective. The menu monitor role involved regular walking, which would actually be sensible for the plaintiff’s back and health and that was suitable for her previous hours of work. The same applied to work as an admissions clerk and receptionist.
251 In her report of 27 February 2019, Dr Wyatt considered the additional information set out in the Recovre report of 20 February 2019.
252 The physical demands outlined in the report were as Dr Wyatt expected for those type of roles which required standing, moving around regularly and the manual handling and lifting requirements.
253 Dr Wyatt considered these roles suitable for part-time work but not full-time hours. Working up to 25 hours a week seemed appropriate for the plaintiff but Dr Wyatt thought she would struggle to do these roles full-time. She had then been working in a cafe in a similar role 24 hours a week.
254 Dr Wyatt did not believe the employment in general between 2012 and mid-2016 materially contributed to the development of a long term back problem.
Overview
255 Initially, whether the plaintiff suffered a compensable injury was in dispute and cross-examination was largely directed to this issue. However, in closing addresses, the defendant’s submissions proceeded on the basis the Court would accept she did, as she claimed, suffer a work injury to her back.[59]
[59]T102
256 Counsel for the defendant conceded the defendant was not presenting a case that was saying the injury did not happen, but it was submitting if it turned on medical opinion on those critical issues, that opinion had to be considered in terms of the veracity of the history given, and in that context, the plaintiff had not been entirely reliable. It was not suggested that there had been improper behaviour, simply that it was a question of reliability.[60]
[60]T103
257 Counsel for the defendant submitted the consequences caused by an interplay of the plaintiff’s underlying degenerate spinal condition and the effects of the incident, while significant or marked, fell short of being fairly described as “more than significant or marked” and fell short of being fairly described as “at least very considerable”. It was a matter of range and a matter of judgement for the Court.[61]
[61]T106
258 Later in reply, counsel for the defendant conceded if the lawn mower incident was accepted as a continuation of the plaintiff’s incident injury, the consequences would be worse, but it was not formally conceded such consequences were serious.[62]
[62]T137
259 The consensus of medical opinion is that in the incident, the plaintiff suffered an aggravation of pre-existing, age-related degenerative disc disease of the lumbar spine, mainly affecting L4 and L5-S1 levels.
260 Dr Wyatt is alone in the view that there was no evidence the plaintiff’s type of injury would result in a permanent or long-term back problem.
261 Counsel for the defendant also submitted there were non-organic factors in the plaintiff’s current presentation.[63]
[63][2013] VSCA 201, and T115
262 In this regard, Dr Slesenger noted non-organic features on examination. Mr Dooley thought the constancy and intensity of the plaintiff’s reported ongoing pain and described disability were greater than one would expect for the organic injuries sustained, and he thought she had an understandable psychological reaction influencing her ongoing symptoms.
263 However, as I indicated during the hearing, I did not consider any such factors were of particular significance in this case.
264 In response, counsel for the defendant said this was “not a dramatic matter”, but it may become significant when considering the number of hours the plaintiff can work where there was not a large margin in the economic loss figures, as any purported work capacity must be based on organic consequences alone.[64]
[64]T115
Credit
265 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[65]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[65](2010) 31 VR 1 at paragraph [12]
266 Counsel for the defendant submitted the plaintiff, although honest, has shown, at times, to be a poor historian and unreliable.[66]
[66]T102
267 Examples relied on in this regard included the plaintiff’s varying accounts of the mechanism of the incident injury and her symptoms as a result on the day thereof and in the days following, her reporting of the injury and her post-injury return to work. These differing accounts were set out in her claim form and her claim for impairment benefits, the history given to her general practitioner in the days following the incident and the history given in a medico-legal context to Mr Battlay and Mr Carey.
268 Further, whilst the plaintiff deposed in her first affidavit, sworn October 2016, that her husband helped with household tasks and gardening, as she conceded, this was not then the case as he was in jail at the time.
269 It was submitted whether intentionally, or otherwise, the plaintiff did not disclose the lawn-mowing incident to Dr Slesenger, to whom she apparently denied any specific injury shortly after moving to Ballarat, and apparently maintained her symptoms had not changed. When later seen by Mr Kossmann, she disclosed a significant flare-up leading to a CT scan in September 2016, but without reference to a precipitating event. Further, she gave no history of this incident to Mr Dooley and Dr Wyatt.
270 Notwithstanding the unreliability of the plaintiff’s evidence to the Court and the unreliability of the history she presented to medical practitioners, in cross-examination, on further questioning, counsel for the defendant conceded the plaintiff presented as an honest witness.[67]
[67]T102
271 These submissions proceeded on the basis the Court would accept she did as she claimed; suffer a work injury to her back.[68]
[68]T102
272 Overall, I found the plaintiff a credible witness who, at times, particularly in relation to the lawnmower incident, gave very frank answers which were not of assistance to her own case.
The role of the lawn mower incident
273 As the case progressed, it became apparent the defendant’s main focus was on the role the lawn mower incident played in the plaintiff’s current presentation. The principal submission on the defendant’s behalf was that this incident was a novus actus and that any pain and suffering consequences prior thereto were not serious.
274 This issue is relevant both in terms of the pain and suffering application and also in relation to the loss of earning capacity application. Whilst I am required to consider the plaintiff’s spinal impairment as at the date of hearing, I am only permitted to take into account any consequences relevant to the incident injury.[69]
[69]Peak Engineering & Anor v McKenzie [2014] VSCA 67
275 Counsel for the defendant submitted the plaintiff could not establish on medical grounds that the consequences of the incident are serious because the history of the lawn mowing incident was not given to the doctors. In these circumstances, it was submitted the plaintiff’s case remained speculative.[70]
[70]T138
276 It was submitted, where the plaintiff had a degenerative spine rendered symptomatic in the incident, it would be rendered symptomatic by any other inappropriate event. There was no necessary causative relationship between the incident and the lawn mowing incident, and any attempt to infer one was purely speculative, and that was not a basis upon which the plaintiff can succeed.[71]
[71]T108
277 In those circumstances, counsel for the defendant submitted it was appropriate to differentiate the incident injury and its consequences from the rest of what is affecting the plaintiff as at the present date. That was best assessed by reference to what she was saying her condition was in the period leading to her move to Ballarat, and the event that occurred shortly thereafter.[72]
[72]T106
278 Counsel for the defendant submitted that after a brief time off work post incident the plaintiff was, with some limitations, able to return to work, and then her condition waxed and waned before stabilising. Over a period of about thirteen months, leading up to her resignation effective 3 July 2016, she reliably performed, without incident, a mix of nightshift, PCA work and dayshift lifestyle assistant duties, for which she had medical clearance.
279 The plaintiff managed during the thirteen months by taking over-the-counter Voltaren. She did not have any major difficulties with her work. If it were otherwise, it was submitted the Court could confidently infer she would have attended her usual general practitioner and raised her concerns. She did not attend St Anthony’s at all in the period 18 June 2015 to 20 February 2016. She then attended ten times for unrelated reasons in the period leading to 12 July 2016.
280 Focus was therefore on these final thirteen months which, it was submitted, was a fair indication that the plaintiff’s condition had stabilised, and she performed work without incident and apparently reliably.[73]
[73]T105
281 In the period from June 2015, when she resigned for unrelated reasons, the plaintiff worked an average of 33 hours a week, most of which was nightshift PCA work. While it might have been lighter work in some respects, it was submitted it nonetheless required physical activity, as the plaintiff deposed in her first affidavit, and was set out in the PCA job description.
282 Further, there was no suggestion it was not a real job, and the plaintiff demonstrated her ability to perform that work full time on a reliable and consistent basis over thirteen months.
283 Against this background, counsel for the defendant submitted the lawn mower incident caused a dramatic worsening, and that was the plaintiff’s own evidence.[74]
[74]T107
284 In his report, Dr Slesenger referred to what he could detect as a significant causal factor but he was not told of the lawn mower incident. In fact, he recorded the plaintiff said there was no specific trigger, rather, the symptoms deteriorated gradually – a proposition with which the plaintiff disagreed in cross-examination. Instead, she was in the same condition, having moved to Ballarat, as she was while in Melbourne, until the lawn mowing incident.
285 Although Dr Slesenger got the history wrong, he was suspicious there was a significant causal effect occurring in 2016, and that was correct.[75] Critically, he wanted to review the general practitioner’s records in that regard. He was not provided with them in what was submitted was properly to be viewed as a deliberate forensic decision on the part of the plaintiff’s lawyers. The false history of a gradual decline in the absence of consideration of those notes by Dr Slesenger totally undermined any attempt the plaintiff may make to contend his report somehow supported a situation of a gradual deterioration.
[75]T107
286 Further, the plaintiff did not disclose the lawn mowing incident to Dr Wyatt. Notwithstanding this, Dr Wyatt certainly could not account for the report of gradual worsening back problems on the basis any work contribution.
287 Mr Dooley, in April 2018, to whom the plaintiff also failed to disclose the lawn mowing incident, thought the plaintiff’s ongoing symptoms related to a combination of the soft tissue lumbar spine injury, the natural evolution of underlying degenerative disc disease and the plaintiff’s psychological reaction.
288 It was submitted, applying the decisions in Lococo[76] and Filipowicz,[77] discussed below, these medical opinions do not support the plaintiff’s case.
[76]Altona Bus Lines and Anor v Lococo [2002] VSCA 159 (“Lococo”)
[77]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 (“Filipowicz”) Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232
289 It was submitted it was patently clear the plaintiff’s back condition worsened dramatically following the independently-occurring lawn mower incident in which she was likely to have suffered further injury when she started a petrol lawnmower by pulling the cord, then pushing the mower as she mowed a strip of the nature strip.
290 It was submitted this independent event clearly produced its new pain and suffering consequences, because the plaintiff noticed a dramatic change in her back condition and started seeing the doctor again after a long time. The plaintiff’s general practitioner then thought her ability to obtain the work she had been looking for was no longer realistic.[78]
[78]T108
291 Counsel for the defendant submitted it could not be argued that the incident injury made the plaintiff vulnerable to further injury- such as in the lawn mower incident- as was the case in Lococo.
292 It was submitted there was no evidence before the Court which established the lawn mowing incident would not have happened but for the plaintiff’s incident injury, or that the additional effects which became manifest subsequent to the lawn mowing incident were consequences of the incident back injury, as was the case in Lococo.
293 Indeed, there was no suggestion the plaintiff’s back condition would have been so dramatically deteriorated by virtue of the incident back injury. To the contrary, Mr Carey, who saw the plaintiff only a few months before the lawn mowing incident, thought she was not likely to suffer injury or harm by engaging in appropriate occupational and daily living activities.[79]
[79]T109
294 In the absence of evidence linking the incident with the lawn mowing aggravation, it is was submitted it was incumbent on the plaintiff to delineate the impairment consequences of the incident, the first injury in time in isolation, and to exclude the lawn mowing incident aggravation, the second in time, tracing such impairment consequences to the present day. She then must prove any impairment consequences are serious.[80]
[80]T110
295 It was submitted the plaintiff had not done so, hence her application must be carefully scrutinised to identify those consequences, which are established to be consequences of the workplace injury.[81]
[81]T110, T111
296 Further, the wrong question, and one contrary to the principles enunciated by the Court in Filipowicz, was that posed to Mr Kossmann as to whether the incident materially contributes to the plaintiff’s current incapacity for work. It was submitted that question reveals a misunderstanding of the matters the plaintiff is required to prove. Absent proof of a causal link between the incident and the lawn mowing aggravation, it was submitted it was impermissible to look at the current state of the plaintiff’s back as a whole, and then to enquire as to the material contribution to such from the incident injury.
297 In response, counsel for the plaintiff indicated he had not anticipated a “full-blown attack” in relation to the lawn mowing incident, so he would have to make oral submissions.[82]
[82]T119
298 Written submissions set out:
(i)there was no medical evidence to suggest there was an independent subsequent eruption of the plaintiff’s condition unrelated to the incident;
(ii)generally, with the exception of Dr Wyatt, the medico-legal reporters attribute the plaintiff’s condition to the incident;
(iii)insofar as the flare-up commenced when the plaintiff was lawn mowing, it is clear that she was doing work that she might normally undertake, especially pre-injury. There was nothing to suggest that it was heavy or unusual.
299 While the lawn mower incident occurred, counsel for the plaintiff submitted it was not an “incident” as the defendant had described, but a “flare up”. There was no heavy moving, it was a light task. While mowing, the plaintiff felt some pain and believed it was her leg, although she did say she had some back pain. The clinical notes contained a description of left knee pain after mowing.[83]
[83]T120
300 It was submitted there was a gradual deterioration in the plaintiff’s condition and that she had had unremitting problems since the incident and that a novus actus would therefore be illogical.[84]
[84]T126
301 Counsel for the plaintiff submitted the clinical notes were consistent with a gradual process, not a sudden incident.[85] There was no suggestion that was a novus actus, it all stemmed from the original injury; it was a flare up.[86]
[85]T121
[86]T122
302 It was submitted, leading up to the clinical note of September 2016, there was a clear path of injury symptoms in circumstances where there was no pre-existing symptoms, against a backdrop of the plaintiff doing what was submitted was heavy work. By the middle of 2016, she had had a chronic condition clearly related to the incident.[87]
[87]T124 – Mr Carey’s July examination
303 It was stressed the clinical notes described a situation consistent with the plaintiff doing nothing more than something pretty ordinary and her back condition gradually getting worse.[88]
[88]T128
304 Emphasis was also placed on treating surgeon Mr Timms’ comments in 2015 that he suspected the plaintiff was likely to suffer an exacerbated rate of deterioration of the lumbar spine from a disc injury, leading to further degenerative change and possible development of neural compression. He thought it likely she would have chronic back pain and bilateral sciatica, anticipating further deterioration.[89]
[89]T123
305 It was submitted there is no issue in this case that the plaintiff had had several flare ups in the course of her employment - a month after her initial return to work and then towards the end of July 2013.[90] Dr Wyatt was the only medical practitioner who thought the incident injury does not continue to contribute to the plaintiff’s back condition.
[90]T128
306 The only medical commentary on the flare up was by Dr Slesenger. It was submitted what he described as a history from the plaintiff was, in fact, correct.[91] It was not a case of her having a significant eruption with a heavy lift. It was submitted it was more consistent with the notion of a gradual deterioration precipitated on any view by her doing something minor.[92] Further, the fact the plaintiff’s condition did worsen was completely ignored by Mr Dooley and Dr Wyatt.[93]
[91]T124
[92]T125
[93]T125
307 It was submitted, in these circumstances, the onus had been dealt with by the plaintiff perfectly.[94] The plaintiff worked with back pain and put up with it. There was nothing heavy that made it worse. Insofar as there was medical evidence, it was submitted it was eminently satisfactory, relying on Dr Slesenger.[95]
[94]T126
[95]T127
308 In reply, counsel for the defendant submitted whether it was a flare-up or an incident, was really not to the point. The fact the plaintiff was previously asymptomatic three years ago was “historic.” It was false reasoning to say she was pre-symptomatic before the incident injury and there had been another flare-up from physical activity. The plaintiff could not answer the question on medical grounds because the correct history was not given to the doctors, so it was submitted the plaintiff’s case remained speculative.[96]
[96]T138
309 Taking into account all the evidence, I accept the plaintiff was coping well with modified PCA duties at the time she left the defendant’s employ to be nearer to her husband as she explained.
310 When she arrived at Ballarat in July 2016, the plaintiff was actively looking for PCA work as she confirmed and advised examiners such as Mr Carey.
311 The plaintiff had not attended her general practitioner at all in the period 18 June 2015 to 20 February 2016. She then attended ten times for unrelated reasons in the period leading to 12 July 2016.
312 The plaintiff, during the last thirteen months, was coping with her work duties with the assistance of painkillers. There was no reported deterioration in her condition during that time as counsel for the plaintiff submitted.
313 This situation changed dramatically following the lawn mower incident with a significant worsening of the plaintiff’s condition as she described with increased pain, the need for further treatment, investigations and increased medication. Further, from that time on, the plaintiff has been unfit for any PCA work and her employment capacity has been further limited.
314 There is no medical evidence supporting a link between the incident injury and the subsequent injury in the lawn mowing incident. There is no evidence that the incident injury made the plaintiff more vulnerable to further injury in that later incident.
315 The onus was on the plaintiff in this regard and no medical practitioner was asked the relevant question.
316 In these circumstances, when considering any pain and suffering consequences, such consequences must relate to the incident injury only, ignoring any consequences of the later unrelated lawn mower incident.
Consequences of the incident injury
317 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[97]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[97](supra) 1 at paragraph [11]
318 I am satisfied that despite improvement in her condition, the plaintiff continued to suffer lumbar pain at the time she left the defendant’s employ and moved to Ballarat.
319 As counsel for the defendant conceded, until she resigned and moved to Ballarat, the consequences of the plaintiff’s spinal impairment included back pain and night cramps in the thighs, restrictions on pushing, pulling, bending and lifting, sleeping difficulties, ingestion of Voltaren, and occasional Nurofen and the need for help from her husband.[98]
[98]T106
320 Counsel for the plaintiff also relied on employment consequences in terms of the pain and suffering application.[99]
[99]T136
321 Whilst until the time of the lawn mower incident, the plaintiff was actively looking for work in Ballarat and confident she would get it,[100] I accept that her capacity for PCA work was limited by her incident injury.
[100]T106
322 Ultimately counsel for the defendant conceded that post incident, heavy work would not be suitable for the plaintiff.[101] The consensus of medical opinion is to this effect.
[101]T130
323 I accept that before the lawn mowing incident, the plaintiff had a capacity for PCA work but not in unrestricted PCA work for which she had been trained. In my view, this employment restriction, coupled with pain, the need for treatment and physical restrictions and the effects on domestic activities, are serious pain and suffering consequences.[102]
[102]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [15]
324 Accordingly, I grant leave to the plaintiff to being proceedings for damages for pain and suffering.
Loss of earning capacity
325 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
326 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
327 The former must be calculated by reference to the six-year period specified in s325(2)(f).
328 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
329 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
330 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[103]
[103]See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
331 I am therefore required to determine a “without injury” earnings figure.
332 The parties agreed the appropriate figure was based on the plaintiff’s earnings in the 2015-2016 financial year, which post-dates the compensable injury, when she earned $54,564, 60 per cent of which is $32,738, or $629 per week.
333 Counsel for the defendant submitted, on any view, the plaintiff’s application for leave to claim pecuniary loss damages must fail. But for the lawn mowing incident, she would have retained an earning capacity to earn the same income as she did in the 2015-2016 financial year, working with the defendant.
334 It was submitted the statutory test required a comparison between the sum the plaintiff was earning, or currently capable of earning, having regard to the consequences of the compensable injury.[104] Where there are multiple injuries, the consequences of an independent supervening event – here the lawn mowing incident – cannot be taken into account in determining the extent of the loss of earning capacity arising out of the compensable incident.[105]
[104]See the Court of Appeal in Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraphs [97]-[98]
[105]T113
335 Pre-injury, the plaintiff had the capacity to perform the duties and hours she had performed in that financial year. It was submitted any diminution in earning capacity after the lawn mowing incident, whether due to that incident or the natural progression of the underlying condition, or both, is to be disregarded. The corollary is that the sum ascertained in respect of s38(f)(i) and s38(f)(ii) are the same, and the plaintiff therefore fails to establish the requisite loss of 40 per cent or more.
336 In the alternative, if the Court accepted there was simply a flare up of the incident injury in the lawn mowing incident, counsel for the defendant submitted the plaintiff still failed to prove the requisite loss of earning capacity, as required. She had demonstrated a capacity to work at Happy Jacks, such that she could not establish the requisite loss in any event.
337 Further, in addition to the Hungry Jacks work, it was submitted there were other vocations, such as fast-food cook where, with the right hours, the plaintiff would not suffer the requisite loss.[106]
[106]T130
338 It was submitted the evidence revealed an after injury capacity to work as a fast cook for at least 24 hours a week, including six hours on a Sunday, such that the plaintiff earned and is capable of earning in suitable employment, s38(f)(i)(b), at least $642.54 gross per week, based on working every Sunday.
339 The capacity to work at least 24 hours per week was supported by medical evidence and by the plaintiff’s own evidence.
340 The plaintiff demonstrated capacity to work at least 24 hours a week and her belief she could not work longer hours does not mandate a finding that the evidence establishes an incapacity to do so. On this point, it was submitted it was instructive to note the plaintiff worked more than 24 hours in the week starting 22 October 2018, working 29.5 hours that week.[107]
[107]T118
341 It was also submitted the Court should find the plaintiff has not established a capacity limited to 24 hours per week, and in particular, she has not established a capacity to work less than 25 to 30 hours per week, based on the opinion of Mr Dooley and Dr Wyatt.[108]
[108]T117
342 Mr Dooley thought the plaintiff had the capacity to work up to 30 hours, having also found some functional features on presentation.[109]
[109]T117
343 Counsel for the defendant submitted if the Court did not accept the plaintiff’s maximum capacity was 24 hours per week, her application failed. It was submitted the cut off figure was somewhere around 27 hours per week.[110]
[110]T118
344 Counsel for the defendant noted it was a matter of fact Sunday work was performed by the plaintiff every second week and that currently, less hours of work are available to her. The current impediments to her working on Sunday every week are the non-availability of such work for her at Hungry Jacks (an irrelevant consideration) and her desire to visit her husband in jail – that impediment being removed when he was released from jail in April.
345 It was submitted the plaintiff failed to satisfy the requirement of s134AB(38)(e)(ii), that she will, after the date of this hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
346 Further, it was submitted the plaintiff had failed to strip away any psychological or psychiatric consequences of her physical injury, as required by sub-paragraph 38(h).
347 In response, it was submitted on the plaintiff’s behalf, the medical evidence does support the proposition that her maximum capacity is 24 hours per week. She was an honest and frank witness who should be accepted in that regard. It was submitted although medical evidence of a greater capacity lacked clarity, it generally supported a twenty-four hour per week capacity.[111]
[111]T136
348 Whilst the plaintiff is currently working less hours with the current employer and at a lesser rate, counsel for the plaintiff conceded the plaintiff had a capacity to work 24 hours per week. Weekend work is no longer available. She is currently paid $24.34 per hour as a casual x 24 hours = $584.16. It was submitted it would not be fair to annualise this by 52 weeks ($30,376 per annum) as the plaintiff has no sick pay, no public holidays or annual leave. A fair multiplicand would be 46 weeks – $26,871 per a annum or $516.75 per week.
349 Dr Slesenger thought the plaintiff only had a capacity for 15 hours.
350 Mr Kossmann thought she had a reduced capacity, returning on a graduated basis. It was submitted Mr Dooley’s view is unclear. Any view of Mr Dooley or Ms Wyatt based on the plaintiff’s ability to do PCA work was no longer relevant, as the defendant conceded she could not do it.[112]
[112]T131
Summary
351 Taking into account all the evidence, I am not satisfied the plaintiff has suffered the requisite loss of 40 per cent as a result of the incident injury.
352 I am satisfied that the plaintiff had a capacity to undertake almost full-time hours as a PCA, albeit on a restricted basis, until the time of the lawn mower incident. She was prepared to do such work and was in fact looking for it in Ballarat when she suffered further injury in the lawn mowing incident in September 2016.
353 For the reasons I have set out earlier in relation to the pain and suffering application,[113] I am not satisfied that the plaintiff has established a loss of earning capacity of 40 per cent related to the incident injury. Any diminution in the plaintiff’s earning capacity as a result of the lawn mowing incident is to be disregarded. Prior thereto, the plaintiff had the capacity to earn the agreed without injury earnings figure and her application therefore fails.
[113]See paragraphs [309]-[316] of my Judgment
354 Accordingly, this application is dismissed.
355 Having made this finding, it is not necessary to consider the alternative argument upon which I was addressed by both parties.
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