Creese v Pitney Bowes Pty Ltd
[2009] VCC 97
•4 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01342
| LEEANNE CREESE | Plaintiff |
| v | |
| PITNEY BOWES AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 and 22 January 2009 |
| DATE OF JUDGMENT: | 4 February 2009 |
| CASE MAY BE CITED AS: | Creese v Pitney Bowes Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0097 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered injury to her lumbar spine – whether the consequences of the impairment of function were at least very considerable for pain and suffering and loss of earning capacity – whether the plaintiff had discharged the onus under section 134AB(19)(b) and (38)(g) – leave granted for both pain and suffering and loss of earning capacity: section 134AB (19)(b); (38)(c) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC | Arnold, Thomas & Becker |
| Mr M Cvjeticanin | ||
| For the Defendants | Mr I Gourlay | Lander & Rogers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 7 April 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the first defendant on 24 March 2004.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr T Tobin SC appeared with Mr M Cvjeticanin of Counsel for the plaintiff, and Mr I Gourlay of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the lumbar spine.
5 The following evidence was adduced during the hearing:
• the plaintiff gave evidence and was cross-examined; • the plaintiff tendered her Court Book ("PCB") pages 15-113: Exhibit A • the defendants tendered their Court Book ("DCB") pages 67-119b: Exhibit 1 • film taken of the plaintiff on 9 and 10 January 2009: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which he suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the present case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong, and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 14 July 1968. She is now forty years of age. The plaintiff is the mother of two children who are now eleven and ten years of age.
10 The plaintiff completed her HSC at Canterbury Girls High School. She entered the Victoria Police in 1986. She left the Victoria Police in about December 1989, and apart from absence from the workforce when she gave birth to her children she was otherwise employed in purchasing and sales with a number of companies before commencing employment with the first defendant as a sales representative in about February 2003. She later obtained a promotion to the position of account manager.[5]
[5] PCB 15-17
11 On 24 March 2004, the plaintiff attended the premises of a client of the first defendant at Hawthorn Road, Caulfield North at about 8.00-8.30 am. She was in a hurry. She was carrying her briefcase containing her laptop computer and part of a mailing machine which that client wished to look at. She was wearing high-heeled shoes. She commenced walking up a flight of stairs and after mounting a couple of steps she tripped and fell, resulting in her twisting her body to the right. She experienced pain in her lower back immediately.
12 A person descending the flight of stairs saw the plaintiff and rendered her assistance. She was helped up. She gathered up her belongings and continued on her way. She attended the meeting with the client. As the day progressed the pain in her lower back increased. Over the weekend which followed the occurrence of the incident the plaintiff rested.[6]
[6] PCB 19-20
The Plaintiff's Medical Treatment
13 On the Monday following the weekend the plaintiff was unable to get out of her bed. She felt as though her back had locked up. She saw Dr Tan, general practitioner, that day.
14 Dr Tan provided six medical reports, none of which are very edifying concerning the plaintiff's progress and the treatment which she afforded plaintiff.[7] According to the plaintiff, she saw Dr Tan on Monday or the day after. She was referred to physiotherapy and was provided prescriptions for painkilling medication. She was also certified as unfit for work for some time.
[7] Dr Tan provided medical reports dated 26 July 2006, 11 November 2005, 5 January 2006, 20 November 2006, 4 December 2006 and 23 May 2007 at PCB 36-41
15 According to the plaintiff, it was early on after she first suffered injury that she began to suffer pain in both of her legs. She continued to attend the clinic where Dr Tan practised. She saw Dr Upfal, a colleague of Dr Tan, who advised the plaintiff to submit a WorkCover claim, which is what the plaintiff did. Up until that time she preferred to use up her accumulated holidays and sick leave.
16 The plaintiff attempted to return to work. It is unclear from the plaintiff's affidavit when that occurred, however, what is clear is that after making attempts to return to work over a couple of weeks she was forced to stop work and has not worked since.
17 Dr Tan referred the plaintiff to Mr de la Harpe, orthopaedic surgeon. The plaintiff first saw him on 23 September 2004. Mr de la Harpe make a diagnosis that the plaintiff had suffered mechanical aggravation of some mild pre-existing degenerative disease in her lumbar spine. He recommended that she continue having physiotherapy with a view to gradually increasing her exercise program to include both a gym and hydrotherapy program.[8]
[8] PCB 347-48
18 Dr Tan then referred the plaintiff to Dr Vivian, physician. The plaintiff first saw him on 28 February 2005.
19 By the time the plaintiff first saw Dr Vivian she had undergone a CT scan on 5 April 2004[9] and an MRI scan on 25 July 2004.[10] Both showed that the plaintiff had evidence of degenerative changes in her lumbar spine.
[9] PCB 85
[10] PCB 100
20 Dr Vivian looked at the MRI scan and concluded that the pain which the plaintiff was experiencing was derived from her lower lumbar facet joints and lumbar discs.[11]
[11] PCB 62
21 He undertook injections by way of medial branch blocks at L3-4-5 on 16 May 2005. The results were negative, which led Dr Vivian to suggest that the plaintiff should have a sacroiliac joint injection and a discography as further steps in the process of diagnosing the source of her pain.[12]
[12] PCB 62-63
22 Dr Vivian undertook a sacroiliac joint injection on 27 July 2005. The results were also negative. He suggested that the next step was to undertake provocative discography, which he undertook on 17 October 2005. The results were also negative, leading Dr Vivian to conclude that he could not find the source of the plaintiff’s pain, however, he did not discount the discogram as producing a false negative finding and that the plaintiff’s pain might be derived from a disc.[13]
[13] PCB 63-64
23 Dr Tan then referred the plaintiff to Mr Barrett, orthopaedic surgeon. The plaintiff first saw him on 29 March 2006. Mr Barrett had the CT scan, the MRI scan and the results of the discography. On the basis of what he saw on the MRI scan he concluded that the plaintiff had suffered a significant posterior intervertebral disc rupture.[14] He was of the opinion that the discography was not clearly diagnostic and he suggested that a further discography be undertaken.
[14] PCB 42
24 A second discogram was undertaken on 5 July 2006.[15] Mr Barrett studied the discogram and concluded that the plaintiff had suffered ruptures involving three lumbar intervertebral discs at L1-2, L3-4 and L5-S1. His interpretation of the discogram is consistent with the report of the radiologist who recorded reproduction of pain at L1-2, L3-4 and L5-S1. My understanding of the purpose of the discogram is to see if pain can be reproduced by creating pressure in the disc.
[15] PCB 112-113
25 Mr Barrett was asked to consider what treatment the plaintiff could be afforded. He was of the opinion that because of the number of discs involved that operative treatment would be unhelpful.[16]
[16] PCB 45
26 The plaintiff wanted a second opinion. She was referred to Mr Speck, orthopaedic surgeon, by Dr Ingram, a colleague of Dr Tan. She saw him on one occasion on 22 August 2006. By inference he seems to have accepted that the plaintiff suffered a disc injury because he advised the plaintiff that surgical treatment was unlikely to give her any benefit. He advised the plaintiff to pursue conservative treatment.
27 Dr Tan then referred the plaintiff to Dr Kinloch, physician. The plaintiff saw him on 5 and 20 June 2008, 24 July 2008 and 29 August 2008. It is not clear whether Dr Kinloch had any of the scans, discograms or reports from any of the plaintiff’s treating medical practitioners. He accepted that the second discogram showed a positive result as L1-2, L3-4 and L5-1.
28 Dr Kinloch's treatment appears to have principally been directed to determining what medication the plaintiff required. He noted that she had an allergic reaction to Tramal and Oxycontin. He suggested she try slow-release narcotics, but she was unable to tolerate that medication. He undertook a lumbar epidural injection which gave her relief from her right leg pain for about three weeks, and he also gave her injections into her right sacroiliac ligaments and subsequently prescribed her Lyrica to treat the leg pain.
29 Dr Kinloch recorded that the plaintiff obtained some relief from the injections which he described as modest. He expressed some hope that the plaintiff's pain levels might improve and that she might be able to obtain employment of up to two-and-a-half days per week.
30 At present the plaintiff is treated by Dr Tan and her colleagues. The more recent reports relevant to the plaintiff's treatment by Dr Tan and her colleagues are from Dr Ingram. In his last report he referred to the plaintiff not being able to work due to her pain. He also referred to the plaintiff suffering depression, to which she had been referred for treatment to Dr Dempster, psychiatrist, and her use of Zoloft to treat her depression.
31 Dr Ingram also referred to the plaintiff's condition as having stabilised, but with her experiencing frequent exacerbations. He considered that ongoing pain and failure to progress were directly a result of her depression, and in the context of the whole of his report, I take that to mean that the plaintiff’s ongoing pain was due to a physical injury, but that her capacity to improve and progress had been impaired by the onset of depression.[17]
[17] PCB 106-107
32 The plaintiff continues to attend Dr Tan and her colleagues. Her current regime of treatment involves physiotherapy twice per week and prescription medication. The plaintiff takes two Digesic each night to treat pain; two Lyrica per day to treat the leg pain, and one Lexapro at night to treat the depression.[18]
[18] Transcript 46
The Other Medical Opinions
33 Dr Castle, occupational physician, examined the plaintiff on a medico-legal basis on 22 May 2007. He was provided with the scans, a nerve conduction and EMG, and the discograms. After examining the plaintiff he was of the opinion that the plaintiff had suffered multiple intervertebral disc lesions with evidence of radiculopathy. He was of the opinion that the plaintiff had no capacity for employment.[19]
[19] PCB 73-74
34 Mr Schofield, orthopaedic surgeon, examined the plaintiff on a medico-legal basis on 12 June 2007 and again on 7 October 2008, on that occasion on referral by Dr Selseatan, general practitioner.[20]
[20] Mr Schofield provided two medical reports dated 14 June 2007 at PCB 75-78 and 16 December 2008 at PCB 79-82
35 Mr Schofield was provided with the scans and the discograms. On the first occasion he saw the plaintiff he referred her to have a plain x-ray, and on the last occasion he saw her he was provided with an MRI scan undertaken on 6 August 2008. Dr Tan had referred the plaintiff to have that MRI scan.[21]
[21] PCB 111
36 After his first examination of the plaintiff, Mr Schofield was of the opinion that the plaintiff had developed a disc prolapse at L3-4. He did not believe that the degenerative changes evident on the scans and the x-rays had been aggravated to any significant degree.[22] On receipt of a further MRI scan and after reviewing the plaintiff, he was of the opinion that the plaintiff had suffered an aggravation of degenerative changes affecting her lumbar spine, particularly at L3-4, either causing or aggravating instability at L3-4.[23]
[22] PCB 77
[23] PCB 81
37 Mr Schofield was of the opinion that the plaintiff was not fit for any work having regard to her education, training and experience, that her future prognosis was guarded and that there was a possibility that she might require surgery. He anticipated that the plaintiff's lumbar spine would deteriorate slowly.
38 The defendants had the plaintiff examined by a number of surgeons on a medico-legal basis. Mr Gourlay submitted that because of the age of the opinions they had limited value. After reading the reports he referred to, I came to the same conclusion. Mr Gourlay referred me to the following reports in passing: Mr Doig, orthopaedic surgeon;[24] Mr Ritchie, orthopaedic surgeon;[25] Mr Troy, surgeon;[26] and Mr Conroy, surgeon.[27] However, the significance of the opinions of Mr Doig and Mr Troy is that they were of the opinion that the plaintiff had suffered lumbar spine disc injury, and Mr Ritchie and Mr Conroy were of the opinion that the plaintiff had aggravated disc degeneration in her lumbar spine.
[24] DCB 68-69. Mr Doig examined the plaintiff on 13 August 2004
[25] DCB 70-73. Mr Ritchie examined the plaintiff on 24 March 2004
[26] DCB 83-91. Mr Troy examined the plaintiff on 4 April 2006
[27] DCB 92-95. Mr Conroy examined the plaintiff on 10 October 2006
39 Mr Dooley, orthopaedic surgeon, examined the plaintiff on a medico-legal basis for the defendants on 23 April 2007.[28] Mr Dooley either had the scans, x-rays and the discograms, or at least was aware of their content. Interestingly, Mr Dooley doubted the diagnostic reliability of discograms, preferring MRI scanning. This is clearly at odds with the clinical approach of Dr Vivian and Mr Barrett.
[28] DCB 101-104, and in particular, at 103-104
40 Mr Dooley did not consider that there was any major disc prolapse or evidence of radiculopathy, and then added that he would have expected a tendency towards recovery which had not occurred in the case of the plaintiff. This led him to express the opinion that the plaintiff had developed a chronic pain syndrome which was probably largely psychosomatic in origin. He partly based that on the MRI scanning and his examination of the plaintiff and also on the basis that the plaintiff was taking minimal medication and no medication during the day.
41 In conclusion, Mr Dooley was of the opinion that the plaintiff had largely recovered from her injury, and he repeated that she had symptoms which were largely psychosomatic, and he added that she had associated abnormal illness behaviour and a chronic pain syndrome. He was of the opinion that she had a current work capacity.
42 Curiously, the defendants sought an opinion from Mr Jones, orthopaedic surgeon, who was not asked to examine the plaintiff but to review the opinions of Mr Barrett and Mr Dooley. He provided a report dated 1 May 2008.[29] It is not clear whether Mr Jones had any of the scans or the discograms, or just the reports of Mr Barrett, Mr Dooley and Dr Castle. It appears as though he did not have any of those scans or discograms because he makes no mention of actually having them and having examined them.
[29] DCB 119a-119b
43 Mr Jones has something of an each way bet. He firstly agreed with Mr Dooley that there was no evidence of a major disc prolapse and that there would be a strong tendency towards recovery, and then he agreed with Mr Barrett’s proposal that lumbar disc disruption is a serious injury and there is limited power of healing in a severe disc disruption with long-term consequences. He added that a patient suffering significant disc injury is usually left with symptoms of back pain and stiffness and sometimes severe symptoms of back pain, limited movement and referred pain to one or other legs.
Serious Injury or Not?
Pain and Suffering
44 The issues which Mr Gourlay raised were whether the injury suffered by the plaintiff amounted to a serious injury for pain and suffering consequences; whether the plaintiff was fit for suitable employment and could establish that she had suffered a permanent loss of earning capacity of 40 per cent or more, and whether the depression suffered by the plaintiff was amplifying the consequences of the impairment of function of her lumbar spine to such an extent that the so-called ‘step of disentangling’ was required.
45 I will deal with the submission made by Mr Gourlay regarding the so-called ‘disentangling’ first.
46 In Shock Records Pty Ltd v Jones;[30] Zivolic v Hella Australia Pty Ltd[31] and Jayatilake v Toyota Motor Corporation Australia Ltd,[32] the Court of Appeal held that if a judge at trial is satisfied that the physical injury resulting in an impairment of a body function is the cause of pain and suffering consequences and loss of earning capacity consequences, then no so-called ‘disentangling’ is required.
[30] [2006] VSCA 180, per Bell AJA, at paragraph 79
[31] [2007] VSCA 142, per Redlich JA, at paragraphs 19-20
[32] [2008] VSCA 167, per Ashley JA, at paragraphs 19-21
47 The submission made by Mr Gourlay invited me to conclude that because of the presence of depression in the plaintiff's presentation that the so-called ‘disentangling’ is called for. I reject that submission. It is clear that the only medical practitioners who consider that there is some level of depression having some degree of impact upon the plaintiff's reaction to her physical injury are Dr Ingram[33] and Mr Dooley.[34]
[33] PCB 107
[34] DCB 103-104
48 None of the other medical practitioners who have treated the plaintiff or examined the plaintiff on a medico-legal basis have found any significant psychological or psychiatric consequences of the impairment of the function of the plaintiff’s lumbar spine. If they had considered those consequences to be of any significance, I cannot accept that they would not have passed comment at the least on that issue.
49 As for the opinion of Mr Dooley, I reject it out of hand. Firstly, it is in the starkest contrast to the opinions of all of the other medical practitioners, save for Dr Ingram; secondly, Mr Dooley is the only medical practitioner who doubts the diagnostic efficacy of a discogram, and if his doubt had any real merit, then I would have expected Mr Jones to have said so, but he did not; thirdly, the history taken by Mr Dooley that the plaintiff is taking minimum medication is also wrong. She is taking the medication which I have described in paragraph 32 above which can hardly be described as minimal.
50 I have had no difficulty understanding how the plaintiff came to be injured in the first place and why the likes of Dr Tan, Dr Vivian, Mr de la Harpe, Mr Barrett, Dr Kinloch and Mr Schofield have approached the treatment of the plaintiff's medical problems in the way they have.
51 Equally, I have had no difficulty understanding that the plaintiff has a real physical basis for her complaints, and whether she has suffered an aggravation of degenerative changes in her lumbar spine or such an aggravation, together with disc injury or multiple disc disruption, the fact is that the consequences described by the plaintiff are clearly referable to the physical injury.
52 The fact that there might be a parallel state of depression does not detract from my understanding, but rather all the depression is doing is perhaps making it more difficult for the plaintiff to cope with those consequences. Indeed, the plaintiff was candid in describing how she is affected by depression.[35] She said her depression was worse in 2008. She said that with the use of Lexapro she is now better, and she associated feeling depressed with an increase in pain arising from her lumbar spine.[36]
[35] Transcript 16
[36] Transcript 48-49
53 I find that the plaintiff suffered an injury to her lumbar spine as a result of the incident. I find that it has been almost the sole cause of the disablement which she has experienced since the incident occurred and is currently experiencing.
54 The preponderance of the medical evidence points to the plaintiff having pre- existing degenerative changes in her lumbar spine, and that seems to be confirmed by the scanning, the x-rays and the discograms. Apart from Mr Dooley, all of the other medical practitioners who have provided reports are of the opinion that the incident either aggravated those degenerative changes and/or produced a significant disc injury.
55 The plaintiff has an undoubted onus to prove that she suffered an injury for the purpose of understanding what body function has been impaired, however, I do not see it as necessary for the plaintiff to demonstrate the precise pathology which is at work which is said to cause the injury and the impairment of the body function.
56 I am impressed by the opinion of Mr Barrett. It is clear that Dr Vivian put considerable store in a discogram as a diagnostic tool, as did Mr Barrett. Dr Vivian had some doubt whether the first discogram produced a false negative, but it is clear that the second discogram produced results which resulted in Mr Barrett expressing an opinion that there were multiple disc disruptions at the levels described by the radiologist and accepted by Mr Barrett.
57 I find that the plaintiff did suffer aggravation of degenerative changes to her lumbar spine and probably multiple disc disruptions consistent with the conclusions reached by Mr Barrett. It occurs to me, through my survey of all of the medical material, that a number of the medical practitioners who have examined the plaintiff have also expressed opinions that the plaintiff has suffered some level of disc injury as a result of the incident. This is sufficient to confirm the conclusion I have reached that I should accept the opinion of Mr Barrett.
58 In her affidavit sworn 9 October 2007,[37] the plaintiff said that she is in pain all of the time, with it being worse in the mornings and easing as the day goes on, but worsening again in the afternoon. She said she has pain in her right leg going down to her ankle and pain in her left leg going down to the back of her knee with pain in her legs. Activities such as bending, sitting, standing, walking and driving aggravate the pain in her lower back. She said she experiences spasms in her lower back which often occur when she lifts herself from a seated position. She has put on a lot of weight, estimating that since the incident she has put on about 20 kilograms.[38]
[37] PCB 15-24
[38] PCB 21-22
59 The plaintiff also said that her activities are now reduced significantly. She said she spends a lot of time reading; meets friends for coffee; goes on outings with the children, but works within her tolerances.[39]
[39] PCB 22-23
60 The plaintiff confirmed what she deposed to in her affidavit during her oral evidence. She said she has better days in terms of pain, but is never pain- free and is limited to walking for about 20 minutes and driving a car for about 15 to 20 minutes.[40] She said she is capable of going out and having coffee with friends. She said she experienced improvement after Dr Kinloch administered a number of injections into her lower back, but that the improvement was limited.[41] She said that when she feels a greater level of pain in her lower back that she becomes a bit more depressed. She lies down when she experiences more pain because she finds it provides her with relief. If she has had a hard day and experiences more pain it will also influence the amount of pain she has on the following day.[42]
[40] Transcript 15-16
[41] Transcript 14-15
[42] Transcript 48-49
61 Until recently she had a gardener paid for by WorkCover and has home help presently paid for by WorkCover, however payment for home help will cease shortly.[43] She said she has a very limited capacity to engage in any gardening.[44]
[43] Transcript 13-14
[44] Tran script 13-14
62 Mr Gourlay submitted that the plaintiff is capable of moderate activity. He submitted that the plaintiff has taken her children on outings, and he referred particularly to the fact that the plaintiff went on an excursion to Ricketts Point with her children’s school as evidence of the plaintiff's capacity,[45] that she has taken her children to venues where they have pursued their own sporting interests, and that she has gone out with friends for coffee on occasions, and that she was shown on film collecting a trailer with a friend which was attached to the plaintiff's four-wheel-drive. The plaintiff then backed it into a driveway. Her friend and some children, one of whom was the plaintiff's son, loaded the trailer. The only involvement of the plaintiff was driving the four- wheel-drive.[46]
[45] DCB 187
[46] Transcript 44 and Exhibit 2
63 However, the fact that the plaintiff has engaged in activities with her children, has gone out and had coffee with friends, and has picked up a trailer with a friend does not demonstrate that the plaintiff is capable of significant activity. It only shows that the plaintiff has a capacity for some activity, which, on my reading of her affidavit and the medical reports, has never been denied by her. I do not consider the fact that she has engaged in those activities as being particularly significant and certainly not consistent with her being capable of moderate activity.
64 I accept the evidence given by the plaintiff in both her affidavit and orally. It occurs to me that there was nothing exceptional in the cross-examination of the plaintiff to support the submission made by Mr Gourlay that the plaintiff is capable of moderate activity. It also occurs to me that the plaintiff is really only capable of modest domestic, social and recreational activity.
65 I find that the plaintiff has suffered an injury to her lumbar spine more consistent with the opinion of Mr Barrett. The extent to which the plaintiff is affected by the ruptures to the discs in her lumbar spine is described well by Mr Barrett, and is confirmed by Mr Jones, who was of the opinion that if Mr Barrett was right, then injury of that degree would leave the plaintiff with some symptoms of back pain and stiffness and at worst severe symptoms of back pain, limited movement and referred pain to one or other legs. The collective opinions of Mr Barrett and Mr Jones are consistent with the descriptions given by the plaintiff of the pain and the distribution of the pain in her legs and her incapacity in a domestic, social and recreational sense.
66 The plaintiff is a young woman. She is only forty years of age. She was a capable and hardworking individual before she was injured. She was able to engage in a range of domestic, social and recreational activities in her own right and with her children which no doubt provided her with a fulfilling life overall. A very substantial part of that has now been lost to her.
67 Therefore, I find that the consequences to that plaintiff of the impairment of the function of her lumbar spine are permanent and as she describes them, and on that basis, and given the findings I have made, I consider that the consequences to the plaintiff deserve the description “at the least very considerable”. I make that finding based upon a comparison as I have referred to in my discussion of the statutory scheme.
Loss of Earning Capacity
68 Mr Gourlay submitted the plaintiff was something of a driven woman in a vocational context. He submitted that her journey through employment in her early years to the position she occupied with the first defendant demonstrated that she was driven and a person of real application.
69 Mr Gourlay submitted that the plaintiff had failed to discharge the onus of proof that she bears under section 134AB(19)(b) by not making any significant effort to pursue suitable employment. The substance of his submission was that the plaintiff gave evidence that she had looked for employment consistent with her qualifications and experience as they existed at a time before she was injured and that she should have lowered her sights and look for work at a more basic level.
70 In the end it really does not matter as far as I am concerned because I find that the plaintiff has no capacity for any suitable employment. However, for the sake of completeness, I feel compelled to observe that the submission made by Mr Gourlay smacks of both unreality and artificiality.
71 A person who has particular skills who then suffers injury logically will endeavour to find employment to which those skills can readily be applied. I see nothing unusual about that, but everything to commend that approach. To submit that the plaintiff should have started at a base level and then worked her way up suggests that the plaintiff should have been completely composed and capable of well reasoned calculation of her residual capacity for employment when it occurs to me that she was struggling to try to maintain employment and then became involved in a very significant amount of medical treatment to try to improve her lot before realising that she had lost her former capacity for employment and would need to look for work at some of the level if she was capable of returning to work.
72 It occurs to me that the evidence in this application is really all one way. I do not intend to repeat the analysis I have made of the opinions of the medical practitioners who have both treated the plaintiff and who have examined her on a medico-legal basis, but it occurs to me that the opinions of Dr Tan, Dr Ingram, Dr Vivian, Mr de la Harpe, Mr Barrett, Dr Kinloch, Dr Castle and Mr Schofield essentially demonstrate that the plaintiff has a disabling condition affecting her lumbar spine.
73 Mr Barrett, Dr Castle and Mr Schofield were of the opinion that the plaintiff had no capacity for suitable employment. Dr Castle was specifically asked to assess the plaintiff's capacity for employment given the opinions of other medical practitioners who have examined the plaintiff on a medico-legal basis for the defendants. He considered the opinions of Mr Troy, Dr Douglas, psychiatrist, and Mr Ritchie in terms of their assessment of the plaintiff's residual capacity for employment to be unrealistic given her significant pain with radiculopathy and her reduced sitting, standing and walking tolerances.
74 Furthermore, Dr Castle was provided with a report of Mr Robert Greenfield of Donnelly Ayres dated 3 March 2005[47] in which Mr Greenfield proposed that the plaintiff had transferable skills which would permit her to undertake work as a sales clerk, order clerk, enquiry clerk and marketing specialist. Each of the types of employment identified by Mr Greenfield were accompanied by a description of the duties involved. Dr Castle was of the opinion that the plaintiff did not have any capacity for any of those types of employment, and he was very direct in his assessment of the plaintiff that he did not believe she had any capacity for work of any kind.[48]
[47] DCB 138-146
[48] PCB 74
75 The only medical evidence on which Mr Gourlay relied to propose that the plaintiff had a capacity to undertake full-time employment in any of those types of employment was Mr Dooley. I have dealt with Mr Dooley's opinion in some detail above, and without repeating it in substance, I reject his opinion particularly in relation to the plaintiff’s capacity for employment.
76 The opinions expressed by the other medical practitioners who examined the plaintiff on a medico-legal basis for the defendants did not undertake the detailed analysis undertaken by Dr Castle. His evidence stands as the most direct evidence regarding an occupational and vocational assessment of the plaintiff. I accept his evidence.
77 Therefore, I find that the plaintiff is not capable of any suitable employment. I find that the plaintiff has suffered a permanent loss of earning capacity of 40 per cent or more as a direct consequence of the impairment of the function of her lumbar spine and that the loss of earning capacity she has incurred is “at the least very considerable” and I make that finding based upon a comparison as I have referred to in my discussion of the statutory scheme.
Conclusion
78 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the first defendant on 24 March 2004.
79 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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