Crawley v Victorian WorkCover Authority
[2014] VCC 1720
•11 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
WORKCOVER DIVISION
Case No. CI-13-05178
| LINDA CRAWLEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 11 August 2014 | |
DATE OF JUDGMENT: | 11 November 2014 | |
CASE MAY BE CITED AS: | Crawley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1720 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – Lower back injury – Separate incidents in course of employment – Evaluation of consequences – Aggravation or aggregation – Burden of proof
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511 - Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 - Guppy v VWA & Anor [2010] VSCA 164
Judgment:Leave granted to the plaintiff to bring proceedings at common law in respect of loss of earning capacity and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Walsh | Hounslow Lawyers |
| For the Defendant | Ms M Britbart | IDP Lawyers |
HIS HONOUR:
Introduction
1 Linda Crawley was employed as a personal care attendant by the Mornington Peninsula Shire Council in approximately 1999. She sustained injuries to her lower back in February and October 2009 in the course of her employment, and ceased work for the defendant in February 2010.
2 In this application she seeks leave of the court pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence a common law proceeding against her employer on the basis that her back injury constitutes a “serious injury”. She seeks leave both in respect of pecuniary loss and pain and suffering damages.
3 The defendant accepted that the plaintiff had suffered incidents in February and October 2009 that were productive of back pain, but each was said to be a temporary aggravation of a longstanding degenerative back condition which had been symptomatic from time to time. The plaintiff’s credit was generally in issue.
4 The plaintiff’s counsel, Mr Walsh, accepted the proposition that for the plaintiff to obtain leave in respect of pecuniary loss damages she would effectively have to satisfy me that she had very little, if any, capacity for employment, given her limited hours of employment prior to sustaining injury and her relatively modest earnings. At the time the application proceeded before me the plaintiff was doing voluntary work, albeit for very limited hours, totalling some 12 hours per fortnight, performed over five working days. This had been the case since about November 2012.
5 In relation to her application in respect of pain and suffering, the plaintiff, who is now sixty-four years of age, has set out quite extensively the consequences said to flow from her lower-back injury in affidavits sworn in 2013 and 2014. Additionally, affidavits in support have been sworn by her husband Leo and her younger daughter Chiara.
6 The plaintiff carries the burden of proof in respect of this application and needs to satisfy me that the consequences flowing from her lower-back injury satisfy the relevant statutory framework contained in s134AB.
7 The plaintiff was cross-examined in the application, as was her treating general practitioner, Dr Kristine Johnston.
The Evidence
8 The plaintiff had sworn affidavits on 3 May 2013 and 14 July 2014.[1] It is useful to set out in summary form the matters deposed to:
[1]Exhibit A, page 17–30
· The plaintiff was born in March 1950 and is married with four adult children.
· The plaintiff claimed a low back injury on two occasions during 2009, first on 9 February whilst lifting and manoeuvring a heavy bed, and secondly on 6 October 2009 while performing heavy and repetitive work at a client’s home in Somerville.
· The role was described as hands-on, requiring the provision of personal services and general housework, and was described as “heavy, repetitive and strenuous”.[2]
[2]Exhibit A, page 18
· The work of a carer frequently involved elderly citizens with significant physical problems, including one client confined to a wheelchair.
· Following the October 2009 incident, the plaintiff submitted a WorkCover claim form which was accepted on behalf of the defendant.
· The plaintiff came to Australia with her husband from Ireland in 1970 and had stayed at home to care for her children prior to 1999.
· The plaintiff worked continuously for the defendant until February 2010 and described her health as good. She had some lower-back problems in 2004, 2005, 2006 and 2007, but made a good recovery and lost little or no time from work.
· Following the February 2009 incident the plaintiff attended Dr Johnston and was advised to rest. She underwent an x‑ray and attended physiotherapy.
· Between March and October 2009 the plaintiff continued to experience ongoing lower-back pain whilst performing her work duties: “The pain wasn’t getting any better, and I required further treatment.”[3]
[3]Exhibit A, page 21
· In October 2009 the plaintiff attended a physiotherapist, and had treatment on a regular basis in October and November. She also saw a colleague of Dr Johnston at the Westernport Medical Centre, as she was also suffering from right-hip pain.
· In 2010 she continued to see Dr Johnston and the other doctor (Dr Glasby), and was advised that her work duties were unsuitable and certified unfit for work.
· She ceased work in February 2010 as “my injury prevented me from continuing at work because I was not physically capable of performing a lot of heavier work duties which were prerequisites for my role”.[4]
[4]Exhibit A, page 22
· She had further physiotherapy after October 2009 and continued to see Dr Johnston for treatment. She was prescribed medication including Tramal, Mersyndol, Mobic and Panadeine Forte, and continues to see the physiotherapist.
· She had an MRI of her lumbar spine performed on 25 November 2011 and was referred to Mr Rodney Simm, an orthopaedic surgeon, who she saw on 24 January 2012. She was advised that her lumbar discs were “in a poor state ... she should not return to her former occupation and ... she should return to physiotherapist treatment”.[5]
[5]Exhibit A, page 22
· From about November 2012 she has done voluntary work at the local church op shop. She confirmed in viva voce evidence that this was for five hours over two days in one week, and seven hours over three days in the alternate week.[6]
[6]Transcript (“T”) 17, Line (“L”) 8–30
· The back pain suffered by the plaintiff has caused her to gain between 10 and 15 kilograms in weight, affected her ability to interact with her grandchildren, and affected activities such as gardening and domestic household tasks. It has also affected her sleep. She believes it has had a significant effect on her emotional wellbeing, in that her loss of employment has had a significant impact on her self-esteem and feeling of self-worth.[7]
[7]Exhibit A, page 23
· The back pain has remained consistent since 2009 and has “gradually gotten worse”.[8]
[8]Exhibit A, page 28
· The plaintiff continues to suffer back pain on a daily basis, and had a bad exacerbation in February 2014 with pain extending into the right foot. She was referred to a myotherapist.
· The plaintiff no longer rides her horse, and describes it as “One of the biggest losses in my life is that I am not able to ride her any more. She used to give me great pleasure. The best I can do is take her for a walk, which is slow, as she is fourteen years old.”[9]
· The plaintiff lives with her younger daughter and two grandchildren. Her husband, from whom she is estranged, lives in a bungalow at the same property. Her daughter does most of the cleaning, cooking and shopping.
[9]Exhibit A, page 27
9 The plaintiff was cross-examined by Ms Britbart, who appeared on behalf of the defendant. I regarded the following matters as relevant:
· The plaintiff’s first real job after raising a family was for the council as a personal care assistant.[10]
[10]T81, L22–25
· She initially worked 23–24 hours, but it decreased to 15–20 hours by early 2009.[11]
[11]T81, L28–T82, L3
· The work varied depending on the clients, but generally involved hands-on assistance with showering, dressing and similar activities.[12]
[12]T82, L6–27
· Hands-on assistance represented about 20 per cent of the work, and doing things around people’s homes, such as cleaning or changing sheets, accounted for 80 per cent.[13]
[13]T83, L6–14
· The plaintiff had seen Dr Johnston at the Westernport Medical Centre since about 2005, and before that Dr McKenzie for probably a few years.[14]
[14]T84, L1–13
· The plaintiff had seen the doctor for blood-pressure medication from about 2000, and in about 2004, after suffering sleeping problems, was provided with a CPAP machine.[15]
[15]T84, L20–22 and T85, L8–14
· The plaintiff denied having specific weight problems in 2009, and stated “I’ve always had problems with my weight. It was 93 kilograms in early 2009.”[16]
[16]T87, L19–29
· The plaintiff’s weight in the two or three years after leaving work was about 95 kilograms.[17]
[17]T88, L1–2
· The plaintiff suffered arthritis in her hands prior to any work injury. It had not been painful since she finished working.[18]
[18]T89, L15–26
· The plaintiff attended a GP in 2004 for a back strain, and was off work for a few days. She again suffered short periods of back pain in 2005 and 2006. It was just a few days on each occasion.[19]
[19]T91, L27–T92, L23
· In September 2007, after falling off her horse, the plaintiff agreed she had told her employer “I won’t be able to work for the rest of the week.”[20]
[20]T93, L10–15
· The back pain in February 2009 occurred when the plaintiff was lifting and manoeuvring “a very old bed and could feel the strain and felt [her] back [which] just got worse as I went”.[21]
[21]T94, L20–23
· That pain was not just discomfort at the end of the day: “I had bad pain.”[22]
[22]T95, L14–16
· The pain did not go away: “It was there and it would be up and down, but it wasn’t as bad as that day when I got it.”[23]
[23]T98, L10–13
· The plaintiff maintained she had seen Dr Johnston on 4 March 2009 with severe pain in her back. She did not deny that she may have seen the doctor about her ears, her eyes and a sleep study.[24]
[24]T99, L23–29 and T100, L17–22
· The plaintiff had no independent memory of attending Dr Johnston on 4 March 2009 but maintained she must have had such a recollection when she swore her affidavit in May 2013.[25]
[25]T101, L8–26
· She did not recall she had told the doctor “that the physio had resolved her pain”.[26]
[26]T102, L18–22
· In relation to the latter episode in October/November 2009, the plaintiff stated: “From the first episode I just had, it was just slowly getting worse and worse, but the last episode I had, which made me decide that I can’t do this job any more because I’m going to end up in a wheelchair.”[27]
[27]T106, L15–19
· The plaintiff agreed that between March and October 2009 she had pain all the time whilst doing normal hours and normal activities. She agreed that she did not tell anyone at work that she was having any back pain at that time.[28]
[28]T107, L3–12 and T108, L19–23
· In the same period she did not complain to her GP of back pain, but did attend the clinic complaining of other things.[29]
[29]T108, L25–30
· The pain was not bad, and she worked through it. She did not worry about it, hoping it would get better.[30]
[30]T109, L25–28
· By 16 October 2009 the plaintiff agreed that both her GP and physio had told her to go back to her normal work for normal hours, and she was “hoping everything was fine”. She had a lot of relief from that excruciating pain and felt freer. She could do a lot more, and it was really good: “It was terrific.”[31]
[31]T112, L12–27
· She agreed with some hesitation that a questionnaire completed for the physiotherapist on 23 November 2009 suggested the plaintiff having recovered and being symptom-free.[32]
[32]T115, L24–26
· The plaintiff did complain to Vivian, the woman doing the rosters, stating “... I just cannot do it – I can’t do any more work than I am doing.”[33]
[33]T118, L3–4
· The plaintiff made no mention of a back injury in resigning from her employment in a letter dated 21 January 2010.[34]
[34]T119, L11–16
· The plaintiff’s daughter had a baby born in 2009. Her daughter helps her: “She’s very good, she’s a terrific daughter ... and she’s a very good mum.”[35]
[35]T120, L14–17
· When the plaintiff finished work she did not think her hands were giving her trouble, but a few months later they were probably her main concern ... but they were not as bad an issue as her back: “That pain really immobilises you.”[36]
[36]T121, L12–21
· The plaintiff agreed it was a significant amount of time between putting in her letter of resignation and four weeks later when she left, but stated she loved her job and loved all her clients.[37]
[37]T126, L8–16
· During 2010 after ceasing work there were some family issues, including a daughter-in‑law who had cancer, the plaintiff’s daughter coming to live with her, and the plaintiff having problems with reflux or probably nerves. This meant there were pressures in terms of her needing to be with her family.[38]
[38]T127, L30–T128, L10
· In 2010 at home the plaintiff could not do a lot of repetitive work like bending, cleaning and vacuuming, because of back pain.[39]
[39]T129, L23–27
· She had no physiotherapy nor any prescribed medication for low back pain during 2010.[40]
[40]T129, L28–29 and T130, L11–16
· The plaintiff was sent to see a Mr Simpson, an exercise physiologist, and attended him in early 2011. The exercises were very good. The pain was still there, but she got fitter.[41] She agreed by mid-2011 “she was doing things she never thought she would do again, including horse riding.”[42]
[41]T131, L2–15
[42]T131, L27–T132, L6
· The last time she had regularly ridden her horse was some time in 2013.[43]
[43]T133, L7–8
· Up until about twelve months ago she was going basically every day looking after her horse, Lucy, and riding her.[44]
[44]T133, L28–30
· The plaintiff had a flare-up of back pain around April 2012 and saw the physiotherapist twice. Medication was prescribed in April 2012 for the first time since October 2009.[45]
[45]T134, L11–22
· The plaintiff agreed that in May 2012 the physiotherapist stated she had a capacity for her pre-injury employment as a homecare worker, but her condition would flare up from time to time, and during those periods of flare-ups she would need to be on modified duties.[46]
[46]T135, L28–T136, L2
· The plaintiff had commenced voluntary work at about eight hours per week towards the end of 2012, but had made no applications for paid work since leaving the council. She stated she would love to be able to perform some paid work if she could find it.[47]
[47]T137, L16–27
· She had been sent by Centrelink to a disability employment agency, but could not do a job in a retirement village because it was the same type of work as for the council, and “there’s no way they’d take me because I had back problems”.[48] She could not do a job at a cash register because she could not sit too long. The plaintiff stated “I can’t do very much of anything for too long.”[49]
[48]T138, L20–26
[49]T138, L28–T139, L6
· Her daughter Chiara does the housework, but the plaintiff can still look after herself and do her own room, taking her time and doing little bits.[50]
· In five years the plaintiff has been prescribed prescription medication on three occasions, and stated: “When I really have to take it is the only time I’ll take it.”[51]
· The plaintiff takes medication or gets physio “when it gets bad”; “only when it flares up”.[52]
[50]T140, L13–28
[51]T142, L23–31
[52]T145, L23–31
10 The plaintiff was re‑examined. I regarded the following matters as relevant:
· The volunteer work with the Anglican church was basically a social outlet for the plaintiff.[53]
[53]T150, L1–7
· In terms of making application to return to the council, the plaintiff would have to be employed like a first-timer and would have to do all the homecare work. She would not be eligible to go straight into a job that would suit her, such as the respite work.[54]
[54]T151, L13–18
· After the pain in October 2009 the plaintiff still had pain, not bad pain ... she knew she could not do this work any more.[55]
[55]T152, L12–22
· The arthritis in her hands after October/November 2009 was not playing any role at all in her ability to work: “Once you’re medicated it’s fine, it keeps it level.”[56]
[56]T153, L28–T154, L7
· The plaintiff agreed with the 18–22 hours shown on her WorkCover claim-form dated 31 October 2009.[57]
[57]T156, L10–15
· Currently she visits her horse every day with her daughter, takes off her rug, and takes her for a walk. She might give her a brush, but her daughter does the horse’s hooves and the feeding.[58]
[58]T157, L6–13
· She had last ridden the horse a couple of months ago, and up until about a year ago used to ride her basically every day.[59]
· In relation to medication, the plaintiff uses either Mobic or Mersyndol when she gets a flare-up. Her last one was probably two weeks ago, but it did not last very long. She believed she may have had about three flare-ups in the period between January and August 2014.[60]
· The flare-ups or exacerbations of pain experienced since 2010 could be worse than they were in 2009 or “just a little bit less”. The plaintiff stated: “I’ve always got pain, it’s always there, but I can – I live with it.”[61]
[59]T157, L23–27
[60]T162, L2–14
[61]T163, L21–29
11 Oral evidence in this application was also taken from the plaintiff’s treating general practitioner, Dr Johnston, who was in fact called for cross-examination before the plaintiff had been cross-examined.
12 Dr Johnston had provided three reports to the plaintiff’s solicitors dated 2 August 2011, 2 July 2012 and 17 July 2014. Additionally the plaintiff relied upon a letter of referral to a physiotherapist dated 17 July 2014 and reports prepared for Centrelink dated 29 April 2011 and a medical practitioner questionnaire completed for WorkCover on 14 July 2011. These reports and additional documents were tendered on behalf of the plaintiff and form part of Exhibit A.[62]
[62]Exhibit A page 31-56
13 When cross-examined by Ms Britbart, I noted in particular the following matters:
·Ms Crawley had consulted the practice about back pain in 2004, 2005, 2006 and 2007.[63] The back pain before 2009 had responded to a bit of rest and sometimes medication.[64]
[63]T26, L7-11
[64]T26, L19-22
·Dr Johnston had been at the practice since 2005 and had treated Ms Crawley for a range of other health problems including respiratory problems.[65]
[65]T27, L11-18
·A referral to a respiratory specialist on 27 January 2009 noted the plaintiff’s weight in 2005 as 79 kilograms and “now 93 kilograms”.[66]
[66]T29, L14-24 and Exhibit 1 page 118
·Dr Johnston could not particularly recall complaints about arthritic problems with the plaintiff’s hands in January 2009.[67]
[67]T31, L4-6
·She was told about back problems on 11 February 2009.[68]
[68]T31, L8-11 and Exhibit 1 page 75
·There was at that time no note of a work connection.[69]
[69]T31, L22-23
·Her report to solicitors on 2 August 2011 stating “Linda has presented regularly since Feb 2009 with low back pain” was qualified by Dr Johnston as “periodically … she conveyed to me over that time there was no complete resolution of this pain”.[70]
[70]Exhibit A page 42 and T32, L19-29
·Ms Crawley “did not always want us to deal with her back pain, but I was aware that her back pain was unremitting … she refused a lot of medication. She put up with pain.”[71]
[71]T34, L4-15
·A prescription for Mobic was written in October 2011 but no other medication prescribed prior to the medical report of August 2011.[72]
[72]T35, L6-10
·The next prescription was for Panadeine Forte on 5 April 2012.[73]
[73]T36, L2-6
·On 4 March 2009, the doctor noted that physiotherapy had helped, with an entry “released from pain”.[74]
[74]T37, L30 – T38, L4 and Exhibit 1 page 76
·Dr Johnston saw the plaintiff on 3 June 2009 and made no note about ongoing problems with her back.[75]
[75]T40, L23-27 and Exhibit 1 page 77
·Dr Johnston was only able to state in retrospect that the plaintiff was having back symptoms between March and September 2009. She was later told it had been persistent.[76]
[76]T41, L28 – T49, L8
·The back pain had not actually resolved unlike previous episodes which had resolved.[77]
[77]T42, L14-17
·The plaintiff was not someone who complains a lot and she was expecting it to improve … by the time she actually got to November with the physiotherapy report, that low back pain was unresolved.[78]
[78]T44, L2-6
·“Ms Crawley was certified fit for normal duties on 16 November 2009 and there was no mention before May 2010 of any problems with her low back”[79]
[79]T46, L28-30
·In a medical certificate sent to Centrelink on 24 May 2010, Dr Johnston had listed the plaintiff’s primary problem as “wrist and small joints of both hands”.[80]
[80]T48, L16-31 and Exhibit 1 page 119
·Dr Johnston did not have a specific memory of Ms Crawley having arthritis in the wrists or hands before that date.[81]
[81]T49, L3-9
·In the same document Dr Johnston agreed that Ms Crawley could do “any other work for eight hours or more per week”.[82] She could not remember whether the inability to do normal work was primarily due to the arthritic condition in the hands and wrists.[83] She later agreed that at the time of the medical certificate, it was the wrists and hands that were stopping her doing her normal work.[84]
·By December 2010, Dr Johnston had a feeling of surprise when told that the back had not completely resolved and considered referring Ms Crawley back to the physiotherapist.[85]
·By April 2011, Dr Johnston considered that the nature of the plaintiff’s work was “quite inconceivable that she would actually go back to doing the work she was doing with that sort of back that was aggravated relatively easily … (she was) not able to continue to do the lifting and the sort of work she was employed in.”[86]
·From a note made in October 2010, Dr Johnson believed Ms Crawley was still at work at that time.[87]
·The domestic situation differed from work in that “You can pace yourself at home … if you’re employed to do those things you’re compelled to do them.”[88]
·The back had been worse in the last couple of years in terms of nerve pain radiation.[89]
·Dr Johnston next prescribed Panadeine Forte on 6 February 2013.[90]
·Dr Johnston agreed that the plaintiff was physically capable of doing the volunteer work for five hours one week and seven hours the next week.[91]
·Over the last five years (prior to the hearing) Ms Crawley had “minimal requirement for prescription medication in respect of her back … had continued riding her horse from time to time … and had responsibilities for the care of grandchild who have been living with her”.[92]
[82]T49, L12-17
[83]T49, L18-21
[84]T49, L29-31
[85]T53, L26 – T54, L2
[86]T57, L19-29
[87]T58, L20-25
[88]T59, L1-4
[89]T61, L13-17
[90]T63, L11-16
[91]T66, L25-30
[92]T68, L16-24
14 Dr Johnston was re-examined and I regarded the following evidence as relevant:
·The plaintiff “puts up with a lot” and does not like medication.[93]
·“Clinically she seems to have got more discal nerve pain symptoms …I would have liked that to improve in terms of core strength and – you know, self-management of that pain and avoidance of aggravation of her lower back … she had a minor disc bulge. I wanted to her to avoid getting a prolapse.”[94]
·As at today, her lower back condition “is a prevailing condition and it obviates her ability to do anything on a regular basis. It is unpredictable, she’s had flux and flow of aggravations and I think all along her previous work has allowed this condition to aggravate more readily in subsequent weeks since ’09 and particularly in the last little while with the nerve pain she’s certainly not able to do anything in any repetitive sense in any reliable sense that requires core strength and bending.”[95]
·In response to a question from me concerning the absence of any referral to an orthopaedic surgeon or neurosurgeon for an opinion, Dr Johnston replied, “Not with a grumbling back. If there is nerve pain we do go through the pain management route more often than not, but surgery is really the last option.”[96]
[93]T70, L2-8
[94]T71, L17-24
[95]T75, L20-28
[96]T77, L17-20
15 There was no further oral evidence called in this application. The plaintiff tendered into evidence reports from Mr Rodney Simm, orthopaedic surgeon; Mr Geoff van Gameran, physiotherapist; Mr Mark Simpson, exercise physiologist; together with a report from Mr Michael Shannon, orthopaedic surgeon, who had examined the plaintiff at the request of the defendant’s insurer in October 2012. Radiology reports ordered by Dr Johnston in February 2009 and November 2011 were also tendered as part of the plaintiff’s case. All of these reports are contained in Exhibit A.[97]
[97]Exhibit A pages 57-83 and 109-110
16 The defendant relied on medical reports from Mr Jonathon Hooper, orthopaedic surgeon, dated 15 June and 21 June 2011. These were also tendered in evidence and form part of Exhibit 1.[98] In essence, Mr Hooper refers to the plaintiff’s long history of chronic low back pain and notes aggravations occurring on a couple of occasions in 2009. He states:
“Her condition is constitutional and due to aging which has been aggravated by her work, but as she is not working this aggravation has subsequently ceased. … Her employment was not the cause of her back pain, it was a cause of the aggravation, but as she has ceased work this aggravation has ceased.”[99]
[98]Exhibit 1 page 8-12
[99]Exhibit 1 page 9
17 Mr Hooper was provided other material in a circumstances report and expressed a further opinion to the defendant’s insurer on 21 June 2011. In this report he expressed the view that the work aggravation caused in November 2009 “probably lasted for a period of three months”.[100]
[100]Exhibit 1 page 12
Analysis
18 The plaintiff must satisfy me that she has suffered an injury either by way of a single episode or multiple events occurring in the course of her employment with the defendant. It is impermissible to aggregate separate and distinguishable injuries.[101] The opinion expressed by Mr Shannon in October 2012 in my view best describes the diagnosis of injury in this case. Mr Shannon states:
“She describes no significant symptoms in her back prior to a claimed initial incident in February 2009 where she may well have aggravated the degenerative change, although there was no specific incident or injury.
This episode subsided to a tolerable level, but never fully recovered and she had a further episode of aggravation again with specific incident or injury in November 2009. She has had intermittent further flare ups of symptoms since cessation of employment in February 2010. … Therefore essentially she has mechanical back pain associated with disc degeneration and facet joint arthritis aggravated by the general nature of her work including two specific episodes of flare up. … It would appear that her back is permanently worse following the episodes in 2009 and it is reasonable to base an impairment assessment on the sum of these injuries.”[102]
[101]Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511
[102]Exhibit A, p.81
19 When Mr Simm examined the plaintiff at the request of her solicitors in January 2012, he took a similar history to that of Mr Shannon. He noted from a medical file that there had been a reference to back pain in 2004, “which resolved and was not investigated”. He further noted that Ms Crawley told him:
“She had ‘niggles’ of lumbar back pain which occurred when she was making the bed of a particular client in late 2008. She had to lift the mattress of this bed and she dreaded doing this particular task. These symptoms were present for a period of some months. In February 2009 she left the home of the above client and noted that her back had become very painful. She was crying in pain. … She was given light duties and she had physiotherapy over a period of some weeks. Her back pain settled but it was ‘never 100 per cent’. She continued working, performing her normal work duties. Her back pain fluctuated but did not require treatment. In October 2009, on a Friday, she noted severe pain when she got out of the car after driving home from work. … The history goes on to describe her having further physiotherapy and ultimately returning to modified duties and building up to normal duties for the remainder of 2009.”
Mr Simm further noted:
“Her symptoms had not subsided completely in early 2010 and she decided to tender her resignation in January.”[103]
[103]Exhibit A page 58
20 Dr Johnston’s opinion was most recently expressed in a short report to the plaintiff’s solicitors dated 17 July 2014. She stated that Ms Crawley has “had persistent recurrent combined neuropathic trigger point and mechanical back pain after the past two years with a background of chronic pain since 2009.”[104]
[104]Exhibit A page 53
What is the nature of the plaintiff’s back injury?
21 The initial inquiry that must be made in a case such as this is what is the nature of the injury suffered by Ms Crawley? Much of the cross-examination, both of the plaintiff and her treating general practitioner, was to demonstrate the absence of notation of regular complaints of back injury apart from brief periods of no more than a few weeks following the events in February and October 2009. As against this, the plaintiff maintains that the flare up of symptoms originally occurring in February 2009 never resolved and were once again aggravated later in that year.
22 The defendant’s position, quite understandably, was that the plaintiff had suffered from a degenerative back which had caused her problems prior to 2009. Each of the flare ups suffered by the plaintiff was of short duration and essentially self-limiting.
23 The argument advanced by the defendant as to the nature of the injury finds considerable support in the absence of documented history of ongoing back complaints to be found in the clinical notes of Dr Johnston. Additionally, the plaintiff’s letter of resignation dated 21 January 2010[105] made absolutely no reference to the plaintiff ceasing work as a result of a back injury or indeed any other health problem.
[105]Exhibit 1 page 49
24 The defendant also provided an unchallenged affidavit sworn by Ms Tini Arora-Vokler, a team leader involved in the aged and disability services unit of the Council, who had been employed there since 2006. The affidavit was tendered as part of the defendant’s case.[106] In that affidavit, reference is made to the plaintiff suffering injury to her back in September 2007 when she stated she had fallen off her horse over the weekend. The affidavit then referred to the back injury sustained in February 2009 and the provision of physiotherapy through the Council’s internal processes. The affidavit makes further reference to Ms Crawley reporting “further back niggles” in October 2009.[107]
[106]Exhibit 1 page 1-7
[107]Exhibit 1 page 5
25 The affidavit refers in some detail to the circumstances of the plaintiff ceasing employment, stating:
“When Linda resigned I was surprised as there had been no signs that something was going to occur. I recall asking Linda why and she responded that after all the year of doing the work she had become tired and just wanted to spend more time with her family. … I did offer Linda the opportunity to work on a casual basis which would have provided her with a chance to pick up the days she work and only the work she wanted to take on. Linda thanked me for the offer but stated that she wanted to cease completely. …. (She) worked her normal roster and again there was no comment or report made about any ongoing back problems or injury of any nature.”[108]
[108]Exhibit 1 page 6
26 In the manner in which the application proceeded before me the treating general practitioner, Dr Johnston, attended for cross-examination prior to oral evidence being heard from the plaintiff. I had initially formed a view that Dr Johnston’s evidence was being given in a somewhat partisan manner, although I later moderated my opinion, particularly after I heard evidence from the plaintiff.
27 The plaintiff carries the onus of satisfying me as to the nature of the injury she suffered and the extent of its consequences upon her. The absence of regular prescribed medical treatment or documented notations of back pain inevitably undermine the somewhat subjective assertions contained in affidavits sworn in support of an application. Equally, such omissions as mentioning the fact that the plaintiff was still riding her horse up until at least 2013, do not sit comfortably with a finding that the consequences of back injury sworn to have afflicted the plaintiff since 2009 are of such magnitude as to satisfy the statutory test.
28 Nevertheless, at the conclusion of the plaintiff’s evidence, I was prepared to accept her as a generally truthful witness who had attempted to “soldier on” as described by Dr Johnston and a person who generally avoided prescription medication. The opinion of the treating doctor suggesting that this was a case where she would only consider surgery as a last resort and would not ordinarily refer a patient such as the plaintiff to either an orthopaedic surgeon or a neurosurgeon for assessment strengthened my view that on balance the plaintiff has suffered ongoing back problems since February 2009 consistent with the histories obtained by both Mr Shannon and Mr Simm.
29 Whilst the opinion provided by Mr Hooper is undoubtedly a valid and arguable diagnosis, I am persuaded largely on the evidence of the plaintiff’s treating general practitioner that the injury sustained initially in February 2009 has indeed persisted and was not a temporary aggravation of the type suffered with the earlier episodes of back pain occurring between 2004 and 2008. I therefore prefer the view expressed by Mr Shannon and Mr Simm and find that the plaintiff’s underlying degenerative lower back condition was permanently aggravated by injury first occurring in February 2009.
What have been the consequences for the plaintiff?
30 The plaintiff claims that the consequences of her low back injury have rendered her effectively unemployable. She relies in part upon the opinion of Mr Bill Radley, psychologist and vocational assessment specialist, who prepared a report for the plaintiff’s solicitors on 14 May 2014.[109] He accepts that Ms Crawley has a capacity to continue working on a voluntary basis as a cashier assistant at an Anglican opportunity shop working a total of seven hours per fortnight. He comments that she would not be able to obtain any type of similar paid employment in this type of work although I am unable to see any particular reasoning advanced by Mr Radley as to why the plaintiff could not do similar work for similar hours on a paid basis against a voluntary one. Mr Radley’s conclusion ultimately was that the plaintiff had:
“…no capacity to return to any type of alternative employment for which she currently has the necessary skills, training and/or experience. She has no current work capacity. …
[109]Exhibit A page 84-108
31 He went on to say she had no capacity for any type of occupational retraining. A number of factors were advanced for this later opinion.[110]
[110]Exhibit A page 97
32 The medical opinion (including the opinion of Mr Hooper) is that the plaintiff is not fit for her pre-injury duties. Mr Hooper opines:
“She would be capable of doing alternative duties if such work can be found for her that does not aggravate her back and does not involve bending/lifting.”[111]
[111]Exhibit 1 page 11
33 Mr Shannon examined the plaintiff for the purposes of an impairment assessment and his report in 2012 expresses no opinion on the issue of work capacity. He does state, however “The prognosis is that her back will be vulnerable to further injury.” [112] This opinion is consistent with the fluctuating symptomatology which is a hallmark of the medical histories in this case.
[112]Exhibit A, p80
34 The opinion of Mr Simm expressed in April 2014 was that of voluntary work of 2 ½ hours one week and five hours the next week handling light objects and dealing with customers was not physically demanding and was within the plaintiff’s physical capacity as restricted by her back injury.
35 I accept the submission by Ms Britbart on behalf of the defendant that this is not a case where I would be satisfied that the frequency or severity of the exacerbations of back pain are such that the plaintiff could not be relied upon in any suitable employment to attend on a regular basis. Indeed, the plaintiff’s evidence was to the contrary in that she accepted that in the current calendar year she had only something in the order of three exacerbations of pain which had stopped her from working for a period of some days up to a week.
36 In this case, I find that the plaintiff has some partial capacity for suitable employment but limited to a capacity for suitable employment not involving repetitive lifting or bending or prolonged standing. On the evidence before me, I am satisfied that the type of work and the hours of work being done by the plaintiff on a voluntary basis since 2012 totalling some 12 hours per fortnight, are reasonably accurate as a reflection of her current work capacity.
37 Given that Mrs Crawley works five hours on one week and seven hours on the alternate week, I can be affirmatively satisfied that she would not be capacity of suitable employment in excess of seven hours on any week. The work is currently performed on a voluntary basis and there was quite properly no submission put on the behalf of the defendant to suggest that the plaintiff’s capacity to earn income on an hourly basis in her present voluntary work would carry with it some ability to earn a greater hourly rate than she had received when employed by the defendant.
38 I accept the defendant’s submission that a without injury earnings figure would equate with the plaintiff’s actual earnings in the financial year ended 30 June 2009; that is, $21,673 (or $416.79 gross per week). Sixty per cent of that figure is $250.07.
39 During the plaintiff’s evidence in cross-examination the plaintiff accepted that by early 2009 she was working from 15 to 20 hours per week.[113] There was no evidence as to the actual hourly rate being earned by the plaintiff in 2009.
[113]T82, L1-3
40 I find that the voluntary work being performed by the plaintiff is of a similar nature to the lighter aspects of work being performed with the defendant. On such a basis, I am satisfied that her ability to work for no more than seven hours per week as against her pre-injury capacity of 15 to 20 hours per week, satisfies the requirements for the plaintiff to establish the relevant loss of earning capacity for the purposes of s134AB(38)(e) and (f). I further find in accordance with the opinion of Mr Radley that there is no reasonable prospect of any rehabilitation or retraining providing the plaintiff with a greater earning capacity in the future. For the avoidance of any confusion, I have been affirmatively satisfied by the following calculation:
The plaintiff’s gross income as most fairly reflects the worker’s capacity had the injury not occurred – $21,673 (financial year ended 30 June 2009). This equates to an hourly rate of $20.84 for 20 hours work per week and $27.78 for 15 hours per week.
The plaintiff’s current potential earning capacity is based upon her ability to do 7 hours work per week of a nature equating to the lighter aspects of her pre-injury employment. Adopting an hourly rate of $27.78,[114] the plaintiff’s current earning capacity is limited to no more than $10,112 which is a loss in excess of 40 per cent per annum when compared to her pre-injury earnings.
[114]The ‘hourly rate’ is arrived at by allowing 15 hours per week based on 2009 annual earnings of $21,673.
Is such a loss of earning capacity “at least very considerable”?
41 The plaintiff had worked for the council for over 10 years when she ceased work in February 2010. She had worked permanently on a part-time basis. That work generated income of $21,673 in the 2009 financial year. She does not seem to have independent means.
42 This is not a case where the calculated loss of earning capacity could be compared to a worker who was only working a very small number of hours before being injured as given in an example referred to in Guppy v VWA & Anor.[115]
[115][2010] VSCA 164 at [49] – [51]
43 In my assessment the loss of the ability to earn her pre-injury income must be seen as at least a very considerable consequence to Mrs Crawley, who is of a mature age and living effectively separate from her husband. Loss of even a modest capacity in such circumstances must be seen as satisfying the standard required by the legislation.
44 I am satisfied that the plaintiff is entitled to leave to sue in respect of loss of earning capacity. It is therefore unnecessary to further consider matters independently relevant to pain and suffering considerations.[116]
[116]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63] to [64]
Conclusion
45 I am satisfied that the plaintiff has suffered compensable injury in the course of her employment with the defendant most particularly in February and October 2009.
46 The consequences of the compensable injury have impaired or caused the plaintiff to suffer a loss of function of her lower back.
47 Those consequences have impaired Mrs Crawley’s earning capacity on a permanent basis so as to satisfy the requirements of s134AB(38)(e) and (f). They are also “at least very considerable”.
48 I find s134AB(38)(g) has no relevant application to disentitle the plaintiff from the leave sought.
49 I therefore propose to grant leave to the plaintiff pursuant to s134AB(16)(b) to bring proceedings at common law in respect of loss of earning capacity and pain and suffering.
50 I will hear the parties in relation to formal orders and questions of costs.
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