Dodds v Barry James Roberts Pty Ltd
[2013] VCC 1179
•12 September 2013 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WARNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01187
| SABINE DODDS | Plaintiff |
| v | |
| BARRY JAMES ROBERTS PTY LTD (ceased trading) | First Defendant |
| and | |
| CGU WORKERS COMPENSATION | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 28 and 29 August 2013 | |
DATE OF JUDGMENT: | 12 September 2013 (Melbourne) | |
CASE MAY BE CITED AS: | Dodds v Barry James Roberts Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1179 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity – without injury earnings – issue estoppel – Medical Panel
Legislation Cited: Accident Compensation Act 1985, s68(4), s93CD(4)(b), s134AB(16)(b), (37) and (38)
Cases Cited:Kocak v Wingfoot Australia Partners & Ors [2012] VSCA 259; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hayhill Pty Ltd v Hodge [2006] VSCA 194; AMP Workers Compensation Services Ltd v Chalkley [1998] VSC 29
Judgment: Leave granted to bring proceedings for damages for pain and suffering only. Application for leave in relation to loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendants | Mr P Elliott QC with Mr J Batten | Lander & Rogers |
HER HONOUR
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant in 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. The plaintiff’s general practitioner, Dr Jinks, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
6 On 24 February 2010, the Medical Panel found that the plaintiff was likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury.
7 The Panel noted and formed its opinion in response to a referral from the second defendant pursuant to s93CD(4)(b) of the Act.
8 Section 68(4) of the Act provides
“[F]or the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
9 In Kocak v Wingfoot Australia Partners Pty Ltd & Ors,[1] the Court of Appeal held that a Medical Panel opinion is final for the purposes of determining a question or matter arising under or for the purposes of the Act.
[1][2012] VSCA 259
10 The High Court, having granted special leave, recently heard the appeal in this matter. The Court reserved its decision.
Outline of Section 134AB
11 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
12 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
13 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
14 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
15 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.
16 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.
17 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
18 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
19 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
20 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
The Plaintiff’s evidence
21 The plaintiff is presently aged fifty-two, having been born in October 1960. She lives alone and on most weekends her son, now aged twenty-six, comes home and assists her.
22 The plaintiff was employed the first defendant (“Oasis”) as a nursery hand. She suffered injury as a result of the heavy lifting over the course of her employment, which caused her to become incapacitated in 2007.
23 The plaintiff described in some detail, injury to her lumbar spine as a result of repetitive heavy, difficult and awkward lifting involving large pots, bales of pea straw and lifting trees in pots (“the duties”).
24 The plaintiff developed back pain during 2006 which worsened in January 2007. She then consulted her general practitioner, who certified her fit for modified duties, until he certified her unfit for all work in about April 2007. The nursery was then sold. The new owners did not wish to employ the plaintiff.
25 When she swore her first affidavit on 2 June 2011, the plaintiff was in receipt of weekly payments. She was also then working 15 hours a week, which was the absolute maximum of her capacity, and she was earning about $317 gross per week.
26 In the year ending 30 June 2007, the plaintiff earned $36,097 gross with the first defendant.
27 The plaintiff had had physiotherapy and traction for a period and she had been referred for investigations including a CT scan. All investigations had disclosed considerable pathology to her lumbar spine, accounting for her back and left leg pain.
28 The plaintiff was prescribed Tramadol for pain relief but it caused depression and suicidal thoughts. She was then taking Nurofen and Brufen, fish oil and herbal medications, but her symptoms had continued, with ongoing chronic low-back pain which became worse if she stressed her back too much, which caused her difficulty walking.
29 The plaintiff regularly had left leg pain, which could last up to three weeks. That pain extended from her buttock to her ankle and it could be severe.
30 The plaintiff was then doing light work in a nursery consulting, sales and otherwise general light duties and was just able to cope with the work. Her 15 hours were spread out over the week and she did not believe she could extend them at all, although she hoped to be able to continue working and continue doing activities and work duties that she was performing, to be able to earn an income and maintain some independence.
31 As a result of her injuries and impairment, the plaintiff was restricted in performing many activities including horse riding at her sister’s place, hiking and water skiing. She was limited with housework and was assisted by her son each week. She no longer maintained the garden as she once used to and she paid a gardener once a fortnight to do gardening activities.
32 The plaintiff was limited in sitting, driving, bending and lifting.
33 At one stage, the second defendant suggested the plaintiff should undergo surgery, but when she discussed the suggestion with her general practitioner, he advised her it was not feasible. Thus, she has not been referred to any specialist.
34 The plaintiff was aware of being placed under surveillance, which she found intimidating, abusive and offensive, as she had done the very best to rehabilitate herself.
35 The plaintiff then did not believe she would be able to increase her working hours in the future, nor her income, and she was then earning about $16,000 or $17,000 gross per annum, compared to pre-injury earnings of $36,000. She thought her loss was likely to continue permanently.
36 The plaintiff swore a further affidavit on 28 June 2013.
37 The plaintiff continued physiotherapy on a fortnightly basis until the middle of 2012, when funding was stopped. She sees Dr Jinks every three weeks.
38 The plaintiff takes Brufen approximately a twice a week, fish oil daily and Tramadol about monthly.
39 The plaintiff goes swimming weekly for 30 o 40 minutes to strengthen her back and she does exercises suggested by Mr Casey, her physiotherapist, for about an hour twice a day. She is also trying to walk up to half an hour a day most days of the week.
40 The plaintiff has continued to work 15 hours a week as a nursery hand and is paid $22 per hour for light work involving serving customers and doing watering. There is no heavy lifting, bending or physical work involved in her job. She does not believe she could work more than the current 15 hours a week because it would cause too much back pain and increase her difficulties.
41 Other than her employment, the plaintiff can only do light gardening at home, and certainly no pruning and digging, which she had done previously.
42 The plaintiff has not been able to return to waterskiing. All of her bending and lifting activities are restricted and she does not believe she could lift more than perhaps 3 to 4 kilograms at any one time.
43 The plaintiff can drive for perhaps an hour, or a little bit more, and then has to have a break. She could not drive from Horsham to Melbourne without having a couple of breaks because her back would be too painful.
44 The plaintiff’s pain is there all the time and if she does too much or a bit extra, it increases and she pays the price for a couple of days. Her back is especially painful during winter.
45 The plaintiff’s adult son comes home very regularly and does any of the more active tasks around the household. Vacuuming and cleaning the bathrooms is very difficult for the plaintiff and she has to break it up. She certainly cannot do it in one go and on occasions her son does it when he is at home.
46 Prior to her injury, the plaintiff was extremely active and able to look after herself and her own home without assistance. She did all the physical activities around the house without any difficulties and now that is impossible.
47 The plaintiff used to travel quite a lot and go to Queensland and overseas on occasions and that would now be very difficult, if not impossible. She did not believe she could go on a trip to Bali because the plane trip would cause significant pain.
48 Prior to the injury, the plaintiff used to go snow skiing but she has not done so since because it would be too difficult and she would be at risk of falling over and making her back worse. The plaintiff was not a skier but she would go to the snow and it was something she enjoyed doing.
49 The plaintiff returned to work on 31 May 2013, having been off since mid April 2013 because of surgery for another medical condition involving tumours.
50 If the plaintiff had not had the injury, she believes she would still be working full time in the nursery area. That is now impossible and she is lucky to be able to get light employment, which she currently has, in an area in which she enjoys working. However, it is very frustrating not being able to do the things that are expected of her and to be able to fully participate in the nursery activities and build a better career than she has presently.
51 The plaintiff was cross-examined about her work history since leaving school in Year 12. Having initially worked as a machinist for four or five years, the plaintiff and her then partner ran three plant nurseries in the Dandenongs. The plaintiff’s role was business management, and not really that much hands-on.[4]
[4]Transcript (“T”) 21
52 The plaintiff then separated from her partner. She then did some work as a kitchenhand at Box Hill Hospital before moving to Dimboola. She was then out of the workforce from 1985 caring for her son. She then ran a childcare business from home at Dimboola for ten years.
53 The plaintiff remarried in 1992 and moved to Horsham, where she worked in retail and did cleaning at a motel.
54 In 2000, the plaintiff did a business administration and office course, with a view to going more into management. She looked for work in management with the first defendant. In 2003, she commenced work with the first defendant as a casual nursery girl, and towards the end of her employment, she was running the nursery.[5] Her job involved physical work.
[5]T25
55 The plaintiff agreed she last worked in the week ending 18 March 2007. She was not sure what days she was working but agreed with the days and hours worked set out in the pay records.[6]
[6]DCB 130-132
56 Not long before its sale in 2007, the plaintiff knew Mr Roberts had the nursery on the market.
57 The plaintiff was shown her Claim for Compensation, which she agreed she signed on 23 February 2007. She continued working after she put in the claim. The business was then sold, and she did not get a job with the new owners. The plaintiff then went on weekly payments of compensation until returning to work in mid 2009.
58 The plaintiff did not do any further courses or retraining between 2007 and 2009. During that time, she was looking for work of a light nature, as that was all she believed she could do.[7]
[7]T28
59 Old Peppertree Nursery is larger than the Oasis nursery. There are two owners and four employees working there. The plaintiff was offered her current job by Cathy Roberts, who knew the plaintiff through the nursery industry. The plaintiff agreed she had a good reputation working for the first defendant, and that was carried on in her working at Old Peppertree.
60 The plaintiff agreed that she was not keen to work as a manager at Peppertree because of the bending and lifting required, but she was keen to do other work, particularly consulting and designing.[8]
[8]T29
61 The plaintiff has not sought any training or retraining in design work at TAFE. She has looked things up on the computer, but has not done any courses because of financial reasons. Courses are expensive and she is on a low wage.[9]
[9]T29
62 The plaintiff asked the second defendant to fund courses on numerous occasions some time ago when she was asked to re-educate herself, but her requests were denied. She could not remember the details of the courses. She has never got Dr Jinks involved in assisting her with applying for courses.
63 The plaintiff would describe her present design skills as average, and she agreed they were based on practical experience and self taught on the internet.
64 When Cathy Roberts offered the plaintiff a job, she was happy that the plaintiff just worked whatever she could.[10]
[10]T30
65 There has never been a time in the last year when the plaintiff has worked more than 15 hours. There has been a week when she worked on a Sunday. Saturday is the busiest day, and she has worked on a Saturday in some weeks.[11]
[11]T30
66 The plaintiff disputed she could work seven and a half hours on Saturday and Sunday, although she did acknowledge that she did work consecutive days in her current job. There had been a week when she had worked more than three days, and the largest number of days she worked was four. That was when she could not do her full three days with 5 hours, so she was put on for a couple of hours on another day.[12]
[12]T31
67 The plaintiff pretty much works 5 hours on Monday, Tuesday and Friday.
68 The plaintiff was taken through some payslips, one of the fortnight ending 3 April 2013. She worked two consecutive Saturdays for 7 hours. She agreed she worked 6.5 hours on Saturday, 12 June 2013.
69 The plaintiff agreed that occasionally she did not just work Monday, Tuesday and Friday. The plaintiff denied she worked on the weekends in the fortnight ending 21 August 2013.
70 The plaintiff denied that she did not work on the weekend because she wanted to be at home when her son came from Melbourne. The plaintiff confirmed it was too much to work on the busy weekend.[13] On a Monday there are fewer customers and it is not as busy, but the plaintiff does the same work.
[13]T34
71 The plaintiff confirmed her present duties are advising customers, assisting with retail sales and advising on design.[14] She agreed her major function was giving advice to customers, and that was an area that she was really interested in. The plaintiff has a basic wide knowledge of all plants. In conjunction with giving advice, she does counter work and sales.
[14]T34
72 The plaintiff explained that on a quieter day at the nursery she would do some invoices or a bit of paperwork. She does the ordering, and does hands-on work with the plants at Peppertree. The plaintiff agreed it was accurate she did designs, customers, sales and light duty work, including some of a clerical nature.
73 The plaintiff agreed she sometimes did some design garden work at home on her son’s computer, but that was only for about half an hour. She could not do it at work because there was no computer.[15]
[15]T47
74 The plaintiff confirmed there was not much demand for garden design in the local area, and she is doing design on rare occasions. She does not have any signage or business cards and she does not do any self-promotion as a garden design consultant, nor does she intend to. She does that job through her current employer.[16]
[16]T47
75 The plaintiff has not sought jobs in hospitality or cleaning in recent times. She is not capable of working in those jobs anymore.[17]
[17]T34
76 The plaintiff explained that Dr Brown’s examination was very brief.[18] She denied she told him that her walking capacity was excellent on flat ground. She probably told him that she did short stints of walking because it was good for her back. She had days when she was limping.
[18]T36
77 The plaintiff also denied telling Dr Brown that since February 2010, symptoms of pain spreading into her left ankle and foot had resolved. She did not accept Dr Brown’s opinion that there had been a significant improvement since February 2010.
78 The plaintiff confirmed her job requires her to walk around. She did not know whether she had had any time off work in her current job because of her back.
79 The plaintiff described the home exercises given to her by her physiotherapist. Her doctor and physiotherapist have suggested she swim as much as she can. She last went swimming at Horsham Aquatic Centre in April or May this year. She paid to go to the pool. When the plaintiff attended the pool, she went once or twice a week and did a mixture of strokes and stretching exercises.[19]
[19]T38
80 The plaintiff agreed she had been told by doctors that it was in her interest to walk. She walks a short distance at work and at home. She does not actually go for a walk because she is in too much pain to do so.[20]
[20]T39
81 The plaintiff takes Brufen in the small dose recommended by Dr Jinks. She takes Tramadol maybe once a month in an emergency – when her back is really bad and she is just trying to get some relief – but it does not get rid of the pain. It is also not actually a good medication to take, as it is highly addictive.
82 When it was suggested to the plaintiff that Dr Jinks had not prescribed Tramadol for over two years, she said she still had some at home and she had bought a lot.[21] She had not claimed various chemist expenses from the insurer, having had a lack of success in receipts being paid, the last being sent in April for the pool and chemist.
[21]T40
83 The plaintiff agreed her payments had recently been terminated. She had no intention of increasing her hours if her payments remained terminated.[22] The plaintiff has not discussed with Dr Jinks working more than 5 hours a day. He has not discussed with her working 38 hours a week. When it was suggested to the plaintiff she was not motivated to increase her hours, she said “I can’t”.[23]
[22]T42
[23]T44
84 Dr Jinks knows what the plaintiff does at work because he has seen her at the nursery and they have discussed the plaintiff’s work activities when she has been at the surgery.
85 The plaintiff rarely goes out and socialises with friends. She does not really have a group of friends in Horsham. She has not been counselled by Dr Jinks for mood or anxiety issues, and does not have any problem in that regard.
86 In her spare time, the plaintiff likes to look on the internet and read garden books and magazines.
87 The plaintiff confirmed she had no intention of working as a nursery manager or being involved in a nursery business herself.[24]
[24]T43
88 The plaintiff confirmed that when she was examined by medico-legal examiners she told the truth. The plaintiff could not recall being told by Dr Jinks of any lifting limit, just that he told her not to lift heavier items. She has discussed with him maintaining spinal fitness and doing activities to minimise further injury, such as swimming, walking and exercises.
89 The plaintiff denied that she did the vacuuming, other than for very short periods. She agreed her son visited every weekend, and disputed that was why she was not working on the weekend. He helps her with heavier household tasks.
90 The plaintiff could recall her meetings with Konekt. She was not really happy with their advice because the jobs they were recommending to her involved lifting things that she actually could not do. The plaintiff agreed she told Konekt that she was very interested in the nursery business and designing gardens. That is still the position, but she did not think she could run a business herself.[25]
[25]T50
91 The plaintiff explained she could not increase her hours because she cannot work anymore. She is in pain at work. She struggles. She goes home at lunchtime and lies down and does exercises. When she gets home from work, she lies down for two hours.[26]
[26]T51
92 The plaintiff could not increase her hours and work in reception or administration work because she cannot sit for too long. Although she agreed she could do some of the tasks, the plaintiff has not looked for reception work in the last three years. She tried to work in a health shop before her current job and was not able to work for more than a day because of the lifting that was involved.
93 The plaintiff confirmed her current fortnightly take-home pay is up to $700. She had been receiving a slightly larger amount in a top-up from WorkCover until her payments were terminated in May 2013.
94 In re‑examination, the plaintiff agreed that when she stopped work with the first defendant the change of ownership had not happened.[27]
[27]T55
95 On a normal day the plaintiff starts work at 10.00am and then has a break at about 11.00am for up to half an hour. She needs a break just to sit down, and she is in pain. She works until 12 noon and has lunch for an hour. She goes home and lies down, then goes back to work and has a break at 3.00pm. She finishes work at 4.00pm, and when she gets home she lies down for about two hours, because she gets bad back pain and pains down her leg.[28]
[28]T57
96 The plaintiff can walk for about half an hour, and walk short distances around her double-block garden, doing it at her own pace. She does not have to walk that far at work showing people around.
97 When asked about her future work capacity and the fact she had not sought alternate employment, the plaintiff explained that she struggles with what she does at the moment, and she could not do any more hours, because she has too much back and leg pain.[29]
[29]T58
98 The plaintiff could not work as a childcare worker as she had done in the past because she could not lift up children. She thought her lifting limit was about 2.5 to 3 kilograms. She could not bend and touch the floor repetitively or squat. She can drive locally, 5 to 10 minutes maximum, and that is about it.[30] She can sit for about half hour but she is in pain, and similarly, she can stand for half an hour to an hour. She cannot kneel.
[30]T59
Lay evidence
99 The plaintiff’s friend, Gwenda Williams, swore an affidavit on 24 March 2013. Ms Williams has known the plaintiff for about twenty five years, being neighbours in Dimboola, and they have remained friends thereafter.
100 Ms Williams used to see the plaintiff several times a week. However, over the last eighteen months, that has become less frequent due to Ms Williams’ work commitments.
101 Prior to suffering injury, Ms Williams knew the plaintiff to be very physically active, and she particularly enjoyed dancing and gardening. The plaintiff was highly independent and undertook her own home improvements as she was a single parent.
102 Ms Williams described how, since suffering her injuries, the plaintiff had become less active and seemed to be very limited in what she could do physically and for how long.
103 The plaintiff used to enjoy travelling but nowadays driving and travelling seemed to be difficult for her. She has noticed the plaintiff has trouble driving long distances and tends to stop frequently. The plaintiff has become more homebound and Ms Williams thought her difficulties driving had impacted on the time with her son in Melbourne.
104 Ms Williams thought the plaintiff also has difficulty doing the housework and understands that when she does simple household tasks she has to lie down afterwards to recover.
105 Ms Williams believes the plaintiff suffers a lot of pain but she is not one to depend on painkillers. She has seen the plaintiff in agony after physiotherapy treatment. She can also remember several occasions when she had seen the plaintiff feeling very low, as though she felt like giving up.
106 Ms Williams concluded the plaintiff seemed to really enjoy her working life. She thought missing out on the work she loved and being unable to get back to work and advancing her career had been really difficult for the plaintiff. She described the plaintiff as a stoic but noted she seemed to have had a great deal of difficulty adjusting to the restrictions of her injuries.
107 The plaintiff’s son, Benjamin Dodds, swore an affidavit on 19 June 2013. Mr Dodds is currently twenty-six and lives in Melbourne but sees the plaintiff once or twice a fortnight.
108 Mr Dodds described how the plaintiff used to have a real passion for gardening but nowadays she struggles to keep up with it. She continues to do bits and pieces in small stints but has had to employ a gardening service at home.
109 The plaintiff used to take care of all the housework but these days she finds it difficult to get it all done. He tries to help her out by doing a lot of the housework when he goes home.
110 Mr Dodds and the plaintiff used to go away on holidays three to four times a year but now the plaintiff finds it difficult to travel and he cannot remember the last time they went on a holiday together. It takes the plaintiff a long time to travel to Melbourne for appointments as she needs to stop regularly to have a stretch. He has also noticed the trips to Melbourne aggravate the plaintiff’s pain and she tends to suffer for several days after such a trip to Melbourne.
111 Mr Dodds and the plaintiff used to love going out for tea or the movies together. They rarely do so now. The plaintiff finds it difficult to sit for extended periods, particularly on hard chairs, so sitting through a movie is difficult for her. If he and the plaintiff go out for dinner, they have limited options because they have to find somewhere to dine with soft chairs.
Medical evidence
112 The plaintiff first attended Dr Jinks on 29 January 2007. She then described two years of episodic back and left leg pain associated with her heavy lifting in the plant nursery injury and advised she had received chiropractic treatment.
113 Dr Jinks diagnosed lumbar disc degeneration with left sciatic pain and arranged for a CT scan of the plaintiff’s lumbar spine.
114 In March 2007, the plaintiff re-presented with increased symptoms despite modified duties and Dr Jinks referred her to physiotherapy. On 26 March 2007, the plaintiff finished work at the nursery as the business changed ownership. The plaintiff continued to attend Dr Jinks for WorkCover certification as suitable for light spinal duties throughout 2007 and 2008.
115 The plaintiff underwent physiotherapy and intermittent anti-inflammatory medication. Dr Jinks noted, in December 2008, that overall, the sciatica had largely resolved and the lumbar pain was manageable unless challenged by increased bending or lifting episodes. The plaintiff had been unable to find suitable employment with light duties and her WorkCover was drawing to a close.
116 Dr Jinks reported in December 2008 that the plaintiff was reluctant to seek specialist spinal opinion in Melbourne and he suspected she was not a candidate for surgery anyway. He then thought the plaintiff would be suited to other tasks of gainful employment but she continued to be at risk of further episodes of back pain and sciatica in the long term, particularly if working involving lifting or repeated bending or twisting was attempted.
117 Dr Jinks noted the CT scan showed three lumbar discs to be diseased. He thought the plaintiff’s injury was as a result of multiple accumulated stressors over some time prior to the plaintiff’s first presentation in 2007.
118 In November 2009, Dr Jinks confirmed the plaintiff had continued to attend regularly for WorkCover certification. He found her fit to return to gainful employment with restricted light duties, taking into account spinal pathology. He noted symptomatically that the plaintiff had persistent back pain with brief infrequent bouts of left leg pain consistent with sciatica. He referred to the treatment undertaken, and that a review CT scan showed disc degeneration, facet joint arthritis and ligamentous thickening, as per the earlier scan.
119 Dr Jinks confirmed the plaintiff had ongoing symptoms of pain and disability and required interventional physiotherapy for symptomatic relief.
120 Dr Jinks then thought the spinal pathology would be expected to slowly progress and episodic bouts of increased pain and disability could be anticipated. He thought it appropriate the plaintiff maintain spinal fitness with exercise and that symptomatic relief would be important in minimising episodes. He considered lifting restrictions of 15 kilograms was standard and reasonable for the plaintiff’s condition.
121 In November 2009, Dr Jinks reported he believed the plaintiff was currently working at the garden nursery in suitable duties for her condition for a period in the order of 15 hours per week. He then considered significantly increased hours or unrestricted duties in this line of work was likely to aggravate the plaintiff’s spinal symptomatology. Hence, increased weekly earnings by the plaintiff were unlikely to be readily achievable.
122 Dr Jinks further reported in May 2011, noting the plaintiff had continued to attend at three-monthly intervals and she was coping reasonably with 15 hours part-time light spinal duties. He reported the plaintiff had persisting ongoing low-grade back pain, for which she took a small dose of Brufen. There were mild flare ups of left sciatica that had required no further interventions.
123 Dr Jinks then considered the plaintiff’s condition stable, but he thought the prognosis must be guarded, as he felt the nature of the pathology may be easily aggravated and the plaintiff’s ability to remain in gainful employment was somewhat tenuous.
124 In September 2012, Dr Jinks confirmed the plaintiff continued to regularly attend for WorkCover certificates, working 15 hours a week with a 15-kilogram lifting restriction. He noted that over time the plaintiff reported minor flare ups of back pain and right sciatica requiring some analgesia. She continued to require fortnightly physiotherapy but only small quantities of Brufen to maintain her current level of function.
125 Dr Jinks then thought the prognosis remained that of ongoing potential for episodes of increased pain and sciatica with age-related degeneration. He thought maintaining spinal fitness and avoiding further injury would minimise this potential risk.
126 In January 2013, Dr Jinks advised he thought the plaintiff had L4-5 spinal canal stenosis secondary to disc degeneration and facet joint arthritis, noting that resulted in episodic right sciatica and persistent lumbar pain.
127 Dr Jinks thought the plaintiff’s spinal condition likely precluded a return to heavy manual duties of pre-injury employment indefinitely. He noted the plaintiff continued to work in the nursery industry doing light duties for 15 hours a week and he considered the current level of incapacity to be permanent.
128 Dr Jinks suspected social activities involving repeated bending or lifting weights greater than 15 kilograms could aggravate the plaintiff’s spinal symptoms but he did not know of any significant social impairment.
129 Dr Jinks thought that due to the current progressive nature of spinal degeneration pathology, the plaintiff may require episodic increased medication and remedial physical therapies and he did not believe surgery was desirable or likely. He thought the long-term prognosis was that of ongoing spinal irritability and reduced capacity for heavy manual work.
130 In cross-examination, Dr Jinks confirmed he reported to CGU on 18 April 2007. He advised that the plaintiff related a two-year history of back pain without definitive injury and episodic left leg radiation consistent with left sciatica. There was not an incident; her back was just sore from time to time. She had also seen a Dr Cymbalist for cervical dysplasia.
131 Dr Jinks agreed that the report of the 2007 CT scan indicated pathology in the lumbar spine. He concluded the pathology would be sufficient to give the plaintiff some back pain, and that the CT scan showed pathology consistent with the symptoms and the nature of the disease.
132 Dr Jinks had no specialty in orthopaedics. He diagnosed lumbar spine degeneration or lumbar spondylosis with sciatica.[31] He agreed that the degenerative change shown on the CT scan could be longstanding and that it could show changes over the last two years leading up to the presentation to him. He attributed those findings to the nature of the plaintiff’s work at the nursery and certified the plaintiff fit for modified duties.
[31]T65
133 When seen on 27 March 2007, the plaintiff said she had finished work at the nursery and she was having some ongoing left-sided sciatica and some physiotherapy. Dr Jinks was aware of the WorkCover claim when he provided the WorkCover certification.
134 Dr Jinks denied that his opinion in April 2007 that the plaintiff was fit for full-time modified duties had essentially not changed. It was not the fact the plaintiff was working only 15 hours, but because of the episodes of further pain and requiring rehabilitation. Thus, the plaintiff was now reduced to not full-time but 15 hours a week of modified duties.[32]
[32]T66
135 Dr Jinks agreed he certified the plaintiff fit for modified duties all the way through.[33] When he reported to CGU in April 2007, Dr Jinks agreed that his future expectation was that the plaintiff would return to some form of light duties in the short to medium term.
[33]T66
136 Dr Jinks described, however, the plaintiff had had flare ups in March 2007 and as recently as October last year, when he endeavoured to get some funding for a swimming program.[34]
[34]T67
137 Dr Jinks agreed that given the underlying condition, one would expect the plaintiff to have exacerbations of pain from time to time, and that is the nature of lumbar spondylosis.
138 There had been no definitive injury since March 2007, but there had been exacerbations for whatever reason, whether it be the nature of the work, the nature of the weather or the nature of the underlying condition.[35]
[35]T67
139 If Dr Jinks felt the plaintiff required surgical opinion, it would have meant sending her to Melbourne, and that has not happened. He perhaps offered a specialist referral and was more inclined to do so, if one was available, in compensation cases.
140 Treatment at the moment essentially is seeing the plaintiff three monthly for certificates.
141 Dr Jinks explained he sent the plaintiff for a further CT scan in mid 2009 to assess the prognosis of the disease, and also because WorkCover had ceased and there were some concern with the new employer regarding the plaintiff’s injury. The CT scan was undertaken to see if, over the two-year period, there had been any dramatic deterioration in the plaintiff’s condition.[36]
[36]T69
142 Dr Jinks agreed the second CT scan showed mild degenerative change at L4‑5 and canal stenosis. The wording in the report of that scan was not the same as the first report, and it was done by a different radiologist. Dr Jinks thought it may be a little worse than the original CT scan but he would have to ask the radiologist.[37] Dr Jinks explained that, certainly, the radiological changes had not improved.[38] He disagreed that the findings on CT scan were usual for a fifty-three year old woman.
[37]T70
[38]T71
143 Dr Jinks agreed that the underlying low back problem was age-related degeneration.
144 In late 2008, Dr Jinks agreed he reported that, overall, the plaintiff’s sciatica had largely resolved and the lumbar pain was manageable. He agreed that the plaintiff had a light work back and he would not send her back to heavy work. From the time he first saw the plaintiff until the nursery closed he had certified her fit for modified full‑time duties.[39]
[39]T73
145 Dr Jinks was not involved in the rehabilitation program, nor did he know anything about the Konekt report. Dr Jinks had not done any assessment of the plaintiff’s past work history and sales and other jobs.
146 There was some suggestion of getting approval for a WorkCover course on 15 April 2009 in Dr Jinks’ notes.
147 Dr Jinks reported in December 2008 that the plaintiff would be suited to other tasks of gainful employment. He disagreed that that meant full‑time duties. It meant employment for money.[40]
[40]T75
148 The plaintiff was last prescribed Panadol in July 2007. There had been ten prescriptions of Brufen, but the plaintiff could also get that over the counter.[41] Whilst he had earlier described the dosage as small, Dr Jinks said it was a moderate dosage and 400-milligram tablets were taken for episodes of increased pain. He explained that the plaintiff takes far fewer analgesics than many other people with chronic pain and, in his mind, that is a good thing.[42]
[41]T76
[42]T77
149 The main physical examination and testing was on the initial examination.[43]
[43]T78
150 Dr Jinks agreed he wrote a certificate for the plaintiff to have special consideration on 22 July 2009, setting out that, in his opinion, she would be fit to undertake part-time light spinal duties at the Grow Master Nursery from early August 2009.
151 Dr Jinks also wrote that “it is anticipated that some gradual return to full-time duties will be required to avoid a relapse of more severe symptoms, and it would be thus beneficial if special consideration could be given to her for WorkSafe payments during this transition period”.[44]
[44]T79
152 Dr Jinks’ use of the word “anticipated” was not quite a prognosis; “it was sort of a combination between that and hope”.[45] He was hopeful that maybe the plaintiff would be able, but not entirely surprised that she had not been able, to go to more than 15 hours per week.
[45]T80
153 Dr Jinks explained that his success in returning the plaintiff to the workforce had certainly been better than with many other patients with chronic pain.[46]
[46]T79
154 Dr Jinks has attended the nursery as a customer. Dr Jinks had seen the plaintiff at work behind the counter and serving customers.[47] He knew that she did some design work on the computer. He imagined she did some clerical work at the nursery.
[47]T80
155 If the plaintiff asked him to certify she was fit to work 38 hours a week, Dr Jinks would be very surprised, given the limitations he had noted in her function over time, but he would probably consider it. A job that did not involve bending, lifting or carrying weights in excess of 15 kilograms did not seem unreasonable. However, he explained it is all very well to do her current duties for 15 hours “but to do the same thing for 40 hours is a significant extra demand, just standing even”.[48]
[48]T83
156 Dr Jinks did not know if the plaintiff had worked in any one week more than the arbitrary 15 hours. She had never requested an increase in her hours. Over a period of time, the plaintiff had had a number of presentations with increased pain when working her 15 hours, and he would imagine she would say an increase beyond that would only give her more episodes of pain. Dr Jinks thought the risk then would be a complete breakdown and the plaintiff would be unfit for all work and then not employable.[49]
[49]T84
157 When it was suggested to Dr Jinks that the plaintiff was not motivated, he suspected that she feared that increased hours would increase the exacerbation she was already getting working 15 hours.[50] The plaintiff got exacerbations from the light duties she was now doing. There had been flare-ups where she sought remedial therapies on a number of occasions from CGU.[51]
[50]T85
[51]T85
158 Whilst the plaintiff had not had not had a further days off work, Dr Jinks guessed that showed motivation.[52] She showed motivation to work despite having pain and an increase in her pain.[53]
[52]T85
[53]T86
159 Whilst the plaintiff had not told Dr Jinks specifically of symptomatic relief from exercises and engaging in swimming, he had noticed variations in her condition where there had not been much sciatica, or a little bout of sciatica which had settled.[54]
[54]T87
160 Dr Jinks confirmed he thought 15 kilograms was an appropriate lifting limit. That would be the maximum he would like the plaintiff to lift at any one time on any one occasion, but she may not have to do that on any one day.[55] He anticipated she could lift more than 3 kilograms.
[55]T85
161 Dr Jinks accepted there may be a non-organic component in the plaintiff’s presentation, but he has not really seen any significant psychopathology in her disorder.[56]
[56]T88
162 Dr Jinks agreed he did not have any expertise in occupational health.
163 Dr Jinks thought Dr Yong’s 5-kilogram lifting limit was very conservative. When Dr Yong’s opinion that the plaintiff could work 32 hours a week with the gradual program taking four to six months was put to Dr Jinks, Dr Jinks commented that Dr Yong was writing for the insurance company. Dr Jinks basically expected, if the plaintiff was pushed, she would get more symptoms and was likely to end up unfit for work for a lengthy period of time.[57]
[57]T90
164 Dr Jinks did not think the plaintiff was managing, as Dr Brown described. Despite not having time off, the plaintiff had episodes when there were periods of increased pain.[58] He stated “that is his opinion” when asked about Dr Yong’s view that the plaintiff could work full time.
[58]T93
165 Dr Jinks thought the plaintiff was walking to try and improve her back, and it was a good activity to maintain muscle strength and mobility. He confirmed that the plaintiff would require remedial therapies now and then in cases of flare up.
166 Dr Jinks agreed the sciatica appeared to have resolved most of the time, but in October last year, the plaintiff had a flare up of right-sided sciatica for two months.
167 The plaintiff has never come to him and said that she does not have any low back pain. He did not specifically know about her level of housework involvement
168 When it was suggested that there was a risk that general practitioners get too close to their patients, Dr Jinks said he hoped general practitioners get close and asked “but does that cloud their judgment? One would hope not, but he guessed there was an element of risk.”[59]
[59]T95
169 Whilst Dr Jinks agreed that conservative treatment over four years had not resulted in one hour of increased work activity, on the other hand, the results of the conservative treatment had meant the plaintiff was working 15 hours a week on an ongoing basis with what he agreed was an uncomplicated degenerative lumbar spine.[60]
[60]T96
170 The plaintiff attended Mr Casey at the Horsham Physiotherapy Practice in April 2007. She gave a history of lumbar pain with bilateral sciatica present since lifting at work in January that year. She reported a previous episode of low back pain in June 2006 which was not severe.
171 On presentation, the plaintiff had bilateral leg pain and a positive straight leg raise bilaterally and had reactive spasm in the lumbar and gluteal muscles and she was tender throughout the whole lumbar spine.
172 The initial working diagnosis, backed up by the February 2007 CT scan, was one of discogenic lesion and the plaintiff was commenced on a program of extension exercises.
173 Mr Casey noted there was initially a positive response to treatment but on 20 April 2007, the plaintiff was significantly aggravated having a return to work trial and her straight leg raise deteriorated as a result. Over the next twelve months, her symptoms stabilised somewhat with improved tolerance to walking, sitting and car travel, although he noted the plaintiff was prone to significant flare ups.
174 The plaintiff continued with treatment in 2009, having six further treatments, during which time her symptoms remained relatively similar to previously.
175 In his November 2009 report, Mr Casey noted the plaintiff had commenced some part-time work at a local nursery with understanding employers. While the plaintiff’s symptoms overall were much the same, he thought she still suffered from back stiffness and some leg pain.
176 In June 2011, Mr Casey reported that after conciliation in January, the plaintiff was granted twenty further sessions of physiotherapy and she was suffering some aggravation following a break in treatment.
177 The plaintiff last attended on 29 February 2012 after these extra sessions. Mr Casey thought the plaintiff’s physical injuries were likely to provide restriction in relation to her social, domestic and recreational activities for the foreseeable future. He considered she still had a capacity for at least part-time work and would therefore be suitable for potential retraining. Part-time work, given her periods of exacerbation, would be all he would expect her to tolerate.
178 Mr Casey concluded the plaintiff had had a significant volume of physiotherapy for her injury without a definite resolution of her symptoms. There had been some symptomatic relief. He thought more treatment was unlikely to provide a definitive cure but may provide symptomatic relief.
Medico-legal evidence
179 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in May 2013.
180 The plaintiff’s complaints were then of constant back pain with disturbed sleeping pattern. There was restriction of lumbar spine movement, no sciatic signs and no other neurology, but pain in the left hamstring.
181 There were no investigations available, but Mr Kossmann was provided with a number of reports. He diagnosed discogenic and mechanical back pain on the basis of mild degenerative L4-5 spinal canal stenosis due to mild posterior disc bulging, facet joint arthritis and ligamentum flavum hypertrophy and mild posterior L5-S1 disc bulge with minor involvement of the thecal sac.
182 Mr Kossmann thought the plaintiff was not able to work on full-time duties, noting she was now working very light duties for 15 hours a week. Mr Kossmann considered the condition from which the plaintiff was suffering will last most likely the rest of her life. He believed she could be treated conservatively with pain medication, anti-inflammatories, physiotherapy and hydrotherapy. He could not exclude surgery in the future.
183 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in July 2013.
184 The plaintiff then complained of pain in the lower back area but the severity of it depended on activity. She advised of being unable to do the heavier parts of housework and gardening. She was not able to go water skiing and avoided travelling and was unable to go to social occasions which required long sitting. She could not go horse riding and was not able to ski but she did go swimming.
185 Mr Brearley noted the plaintiff gave a history in a straightforward and clear manner with no suggestion of exaggeration.
186 On examination, there was no deformity in the back but there was very marked tenderness over the whole lumbar region. There was limited flexion and mild flattening of the thoracolumbar spine. Straight leg raising was to 70 degrees bilaterally. All reflexes were markedly hyperactive. Sensation was normal in all areas and there was no wasting.
187 Mr Brearley had available the reports of the CT scans. He diagnosed mechanical lumbar back pain, disc injury to the L4-5 and L5-S1 intervertebral discs with consequent low back pain and nerve root irritation causing leg pain. He thought there was no evidence of radiculopathy.
188 Mr Brearley considered the plaintiff was precluded in regard to employment and other physical activities to a considerable extent. He thought she was unable to do the work she was previously doing or do any significant lifting or much bending and stooping as she did previously. He thought she did not have the capacity to do pre-injury duties either full or part time. He noted the work involved much lifting of heavy trees and shrubs and trays of seedlings and there was much reaching and bending and stooping.
189 Mr Brearley reported the plaintiff could not do her former work and she was now engaged in garden design which she did part time, 15 hours a week. The plaintiff told him she would not be able to work for more hours than this because of the likely increase in back, and also leg pain.
190 Mr Brearley thought the incapacity for the plaintiff’s previous job and for other than part-time garden design work was permanent. He also considered there were restrictions with recreational activity and housework. He thought the prognosis was not good and the likelihood was that the plaintiff’s symptoms would persist in much the same condition as they are now for the foreseeable future.
191 The Medical Panel responded to a referral from CGU, pursuant to s93CD(4)(b) of the Act with the following opinion.
“Question 1:
Is the worker likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury?---
Yes.
Question 2:
If not, what further employment or work is the worker capable of undertaking?---
Not applicable.”
Investigations
192 Dr Jinks organised a CT scan of the plaintiff lumbosacral spine in February 2007.
193 It was reported at L3-4, there was mild annular disc bulge, no herniation and there was mild facet joint degenerative changes bilaterally. At L4-5, there was disc herniation more fully described as a moderate-sized broadbased herniation of the disc in the posterior midline and para-median position bilaterally. It was noted it indented on the anterior thecal sac. At L5-S1, it was reported there was mild annular disc bulge without any focal herniation. There was no pars interarticularis defect or listhesis, no vertebral body destructive lesion or paravertebral soft tissue mass. It was concluded there was L4-5 disc herniation.
194 A CT scan of the lumbosacral spine was organised by Dr Jinks on 8 September 2009.
195 It was reported there was a mild degenerative L4-5 spinal canal stenosis due to mild posterior disc bulging, facet joint arthritis and ligamentum flavum hypertrophy. There was also a mild posterior L5-S1 disc bulge with minor involvement of the thecal sac only.
Claim documentation
196 The Worker’s Claim Form signed on 23 February 2007 set out the plaintiff was working 40 hours a week with the ordinary hourly rate at $17, with a pre-injury average ordinary weekly gross earnings at the time of injury of $680. She described her injury happened as a result of continuous lifting of heavy plants, trees and hay bales.
197 In a CGU register of injuries, incidents and near misses form signed by the plaintiff on 25 January 2007, the plaintiff set out the nature of injury/incident was lifting over time, got worse at 2.00pm on 25 January 2007.
Vocational evidence
198 Katrine Green carried out an assessment on 1 July 2013 to identify alternative vocational options.
199 Taking into account all the medical opinions provided, the analysis of the suggested occupations of retail sales assistant, cashier/checkout operator, sales representative, courier driver, housekeeper and kitchenhand, and the physical demands of the core duties, Ms Green concluded that due to the plaintiff’s back injury and current physical capacity, she was not able to perform the inherent duties of her previous occupation and garden and nursery assistant or the inherent duties of other suggested suitable employment.
200 Ms Green thought, due to many of the roles as a receptionist/information officer, being based behind a desk and indeed requiring prolonged sitting, it was considered that due to her back injury and current physical tolerances, the plaintiff would find it difficult to secure employment in that occupation.
201 Ms Green concluded the plaintiff is able to perform the occupation as she currently does, providing the employment is within her current physical restrictions and up to 15 hours a week.
The Plaintiff’s earnings
Financial Year
Gross Income
Workers Compensation
2004
$1,045
Nil
2005
$28,342
Nil
2006
$26,783
Nil
2007
$27,880
$8,305
2008
Nil
$27,646
2009
Nil
$27,255
2010
$11,854
$5,511
2011
$16,931
$13,900
2012
$17,436
$18,062
2013
$15,921
$16,127
The Defendant’s medical evidence
202 On 29 January 2007, Dr Jinks certified the plaintiff fit for modified duties from 26 February to 26 March 2007 as a result of back pain and left leg pain but there was to be no heavy lifting.
203 Following examination on 10 April 2013, Dr Jinks certified the plaintiff fit for modified duties/light spinal duties from 16 April to 9 July 2013 for 15 hours a week due to back and leg pain.
Medico-legal evidence
204 Dr David Ho first examined the plaintiff in June 2007. The plaintiff told him of her injury at work. Until the business was sold on 7 April 2007, the plaintiff was working full-time modified duties, lying on the floor to rest her backache every day and every hour.
205 The plaintiff said she had lower backache on and off from the heavy lifting at work. She was running the nursery on her own in 2006, during which time she developed some low back soreness, which cleared up. The lower back pain came back in January 2007 from general lifting.
206 Dr Ho noted the CT scan of February 2007 revealed an L4-5 disc herniation.
207 On examination, L4-S1 were tender and thoracolumbar spine movements were restricted. Straight leg raising was to 60 degrees bilaterally and there were no neurological problems.
208 Dr Ho then thought the plaintiff had sustained an L4-5 protrusion in her lower back against a background of degenerative changes in the lower three levels in the course of her employment which involved heavy lifting and manual handling. Currently, the plaintiff had a constant ache in her lower back with an ache into her left leg.
209 Dr Ho considered the plaintiff was not currently fit for her pre-injury duties but had a capacity for suitable employment with a 5-kilogram lifting restriction, avoiding repeated bending and twisting at her waist and heavy pulling and pushing and involving regular changes of posture. If suitable duties were available, he thought she should commence on a graduated return to work program, noting she was well motivated to return to suitable employment if it was possible.
210 On re-examination in March 2008, Dr Ho confirmed his earlier diagnosis and noted that there had been further improvement in the plaintiff’s condition clinically since the last examination. She no longer had any symptoms in her legs. There was essentially a full range of movement in the lower back without any neurological signs in the legs.
211 Dr Ho noted the plaintiff reported better capability; however, there was evidence of some degree of exaggeration of her pain.
212 Dr Ho believed the plaintiff had recovered further since the last examination, noting she had a residual ache in her lower back most likely from the degenerative disc changes.
213 Dr Ho thought the plaintiff was currently fit to work on suitable duties with a 10-kilogram lifting restriction and that she must henceforth observe a proper back injury prevention program. He thought self-managed exercises rather than physiotherapy were appropriate.
214 In a supplementary report, Dr Ho advised he did not believe the plaintiff’s employment was materially contributing to her current exaggerated pain and incapacity as of April 2008.
215 Dr Ho re-examined the plaintiff in November 2008. Save for a cold, the plaintiff said she was progressing very well since the previous examination. She complained of a dull ache in her lower back most of the time. She had not had any leg symptoms for two months.
216 Dr Ho thought, since the last examination, the plaintiff had progressed further, with substantial recovery or improvement in her condition to the point where she only now had a residual ache in the lower back without any leg symptoms for the last two months.
217 Dr Ho noted clinical examination was essentially normal with a full range of movements in the plaintiff’s lower back without any reported pain. He believed the plaintiff had recovered very well from the L5-S1 disc protrusion in her lower back sustained in January 2007.
218 Dr Ho considered the jobs suggested by Konekt were suitable and he considered that employment was now not materially contributing to the plaintiff’s current incapacity. She did not require further treatment and her prognosis remained favourable.
219 Dr Ho re-examined the plaintiff in May 2009. The plaintiff told him that her condition since the earlier examination was essentially the same and she currently had an ache in her lower back all the time which was sometimes not as bad. Sometimes she had an ache in the lateral aspect of the left lower leg which comes and goes.
220 Dr Ho noted, since the last examination, the plaintiff had reduced the frequency of physiotherapy to once a month and had not been taking any medication. She then reported only a residual ache in her low back without any specific leg symptoms and occasionally had a slight ache in the lateral aspect of her left lower leg.
221 Clinical examination again revealed a full range of movement in the lower back without any reported pain and there were neurological signs in the legs. Dr Ho confirmed his diagnosis and conclusions from the earlier examination and added that the plaintiff’s residual minor symptoms may well be related to the underlying degenerative changes in the lower back.
222 In view of her clinically good recovery and stabilisation of her lower back, Dr Ho believed the plaintiff was currently again fit to return to work on most duties on a full-time basis. But in view of her history of injury, he believed she must take care of her lower back henceforth and be careful with heavy lifting in excess of 10 kilograms and repetitive strenuous bending or twisting. He did not think she required further physical therapy given her clinically good recovery.
223 Dr Ho believed the jobs identified by Konekt in its 130-week report dated 6 March 2009 of sales assistant, bank teller, youth worker, garden designer, administration assistant, receptionist, child carer-after school carer were suitable for the plaintiff. He noted she indicated her preference was to resume work as a garden consultant-designer. Dr Ho noted the impediment to her return to work currently was the lack of work opportunities in the rural area.
224 Dr Kotzman, occupational physician, saw the plaintiff for the purposes of an AMA assessment in June 2010.
225 The plaintiff then complained of constant lower back pain radiating to the left buttock and thigh, extending as far as the ankle.
226 Dr Kotzman noted CT scans dated 16 February 2007 and 7 September 2009 showed mild, multi-level degenerative changes with disc bulges at L4-5 and L5-S1, and mild canal stenosis.
227 Examination of the lumbar spine revealed lower lumbar tenderness, particularly on the right, with some paravertebral muscle spasm. Range of motion of the lumbar spine was moderately restricted on flexion, and left lateral flexion and other movements were only mildly restricted. Neurological examination of both lower limbs revealed normal power and reflexes with non-dermatonal sensory changes involving the whole of the left leg but no clinical evidence of radiculopathy and there was no significant thigh or calf-wasting.
228 Dr Kotzman thought the plaintiff was suffering from persisting low back dysfunction without radiculopathy as a consequence of aggravation of lumbar degenerative disc disease relevant to the accepted low back injury. He thought her injuries had stabilised and there was a small degree of permanent impairment.
229 Dr Yong, specialist occupational physician, examined the plaintiff in November 2012.
230 The plaintiff gave a history of, in 2009, getting work at a different larger nursery. She worked reduced hours, 15 hours a week, and there were no requirements for lifting any significant weights. Her work involved working at registers, customer service tasks and garden design. The plaintiff sometimes did garden design work at home when using her son’s computer. She said she was coping with those tasks and continued with the role.
231 The plaintiff advised that her pain had continued in her back and both legs.
232 Dr Yong noted he had viewed the reports of various investigations.
233 In terms of social history, the plaintiff stated her twenty-six year old son visited her on the weekend. Apart from work, she could walk and read at home. She could do cooking, vacuuming with an upright vacuum cleaner for shorter periods, shopping, laundry, ironing and sweeping. She was unable to strip the bed or mow the lawn.
234 On examination of the lumbosacral spine, there was no swelling. There was significant superficial tenderness to palpation in the midline of the low and mid back. There was some restriction of movement and bilateral straight leg raise was to 40 degrees. There was no sensory loss of the legs and the reflexes were normal, as was tone. Power was not unreasonable. The axial loading test was negative and distracted straight leg raise was possible while sitting over the end of the bed to 80 degrees.
235 Dr Yong thought the plaintiff had a capacity for work within the following restrictions – avoiding bending and twisting the back, firm pushing or pulling and lifting more than 5 kilograms on a repetitive basis. He thought her current tasks complied with the restrictions and were reasonable.
236 Dr Yong considered the plaintiff would have the capacity as part of an activity based recovery program to increase her working hours to perform tasks within these restrictions. He thought she would have a capacity to participate in a graduated return to work program and that would be achievable for her to return to four days a week, or 32 hours a week over four to six months.
237 Dr Yong thought the plaintiff would also have a capacity to perform other tasks which comply with the restrictions. He noted she had previous experience in retail and it was likely that those tasks should comply with the restrictions.
238 Another specialist occupational physician, Dr Brown, examined the plaintiff in June 2013.
239 Dr Brown noted the plaintiff obtained work in another nursery in 2009 and since had been working 15 hours per week over three to four days while avoiding heavy lifting.
240 Dr Brown reported that the plaintiff said she was managing quite well and could sit down from time to time, although she preferred to walk around. In terms of clinical history, Dr Brown noted the plaintiff said her symptoms were worse if she did heavier tasks.
241 The plaintiff advised that her walking capacity was excellent on flat ground. She was able to drive her car, provided she took breaks. She did the shopping, but avoided heavy lifting and heavier tasks in the garden and had a gardener.
242 Dr Brown noted CT scans in February 2007 and September 2009 showed disc degeneration at the lower levels.
243 On examination, the plaintiff walked normally with no limp. There was quite significant tenderness to very light palpation across the lower back. She could stand on her heels and toes without difficulty and the axial loading was negative. There was limited thoracolumbar movement. Muscle power, sensation and reflexes in the lower limbs were normal. Straight leg raising while seated was completely unrestricted but in the supine position, led to the complaint of low back pain at 45 degrees bilaterally.
244 Dr Brown thought the plaintiff had chronic uncomplicated lower back pain. He considered there appeared to be a continuing contribution from her employment to her current condition and work capacity.
245 Dr Brown thought there were no obvious non work related factors, apart from some degenerative change seen radiologically. He noted the plaintiff no longer had access to pre-injury duties but had the capacity to continue with her current similar employment on full hours. Dr Brown noted the plaintiff was having little difficulty with the current work and she said she was managing quite well. Provided she avoided heavy manual tasks, he thought the plaintiff had the capacity to continue with the current work tasks on full hours. He considered she should continue with the self managed exercise program.
246 Dr Brown noted when the plaintiff was assessed by the Medical Panel in February 2010, she continued to have symptoms of pain in the left lower back, spreading to the left ankle and foot. He noted since, those leg symptoms had resolved. The plaintiff was now able to walk for 30 to 60 minutes, and said her walking capacity was excellent.
247 When seen by the Medical Panel, the plaintiff was taking Brufen and Nurofen but had now ceased taking the Nurofen. At physical examination, the Medical Panel noted the plaintiff had marked pain on examination but that was not evident at his examination.
248 Dr Brown noted the Medical Panel stated the plaintiff was suffering from an L4-5 disc prolapse but this was not consistent with the radiological information provided, which showed only a disc bulge at L3-4.
249 Dr Brown commented that overall, there appeared to have been a significant improvement since the Medical Panel assessment.
250 In conclusion, Dr Brown noted the plaintiff continued to complain of significant low back pain but there were some inconsistencies on physical examination and she was managing with minimal medication. He thought the documentation suggested there were degenerative changes in the lumbar spine but no evidence of a serious spinal injury. He noted the plaintiff had good walking capacity but appeared to have difficulty with bending and lifting tasks at home.
251 Dr Brown commented that there appeared to have been a significant improvement since the Medical Panel assessment about three years ago, which he noted was consistent with the usual natural history in conjunction with good compliance with an exercise program.
252 Dr Brown thought the plaintiff was managing quite well at work at present and was able to change posture on a regular basis while avoiding frequent bending and heavy lifting. He thought that was the ideal job for an individual with uncomplicated lower back pain. Based on his assessment of that day, Dr Brown thought the plaintiff has the capacity to continue with that work on full hours, provided she continues to avoid more demanding tasks.
253 Dr Newlands, psychiatrist, examined the plaintiff in July 2010. She confirmed the plaintiff had no psychiatric disorder and no treatment was required as no condition existed.
Vocational evidence
254 There were a number of vocational reports relied on by the defendants.
255 Konekt carried out an initial assessment in May 2007 in which the jobs of business administration/reception, child carer and sales assistant were identified suitable employment options in order of priority.
256 In a further vocational assessment report of July 2007, similar jobs were identified as suitable for the plaintiff.
257 In the 130-week vocational assessment in February 2009, the jobs of sales assistant, bank teller, administration assistant and receptionist were identified as immediate work readiness, with retraining required to work as a child carer and training required as a youth worker.
258 Konekt reported in June 2013, suggesting the following represented suitable employment options based on the plaintiff’s current medical status, work and educational history and transferrable skills – general sales assistant, general clerk, receptionist, checkout operator and office casher and retail manager.
Pay records
259 At the time she ceased work with the first defendant in March 2007, the plaintiff was working a 38-hour week earning $680 per week – working 8 hours on a Wednesday, Thursday and Friday, 7.5 hours on a Saturday and 6.5 hours on Sunday.
260 The plaintiff’s PAYG summary for the 2011-2012 financial year showed gross payments of $17,436.
261 Payroll advices from Old Peppertree Nursery set out the plaintiff is currently paid $22.39 per hour during the week, $25.74 on Saturdays and $35.82 on Sundays.
262 From March this year, the plaintiff has worked 5.75 hours on a Sunday in one fortnight, and in four fortnights, she has worked on a Saturday, with the most hours in a fortnight being 14 and the least 4.75.
Claim documents
263 The plaintiff lodged a Claim for Impairment Benefits on 10 December 2009, describing her injuries as the spine, with bilateral referred leg pain, L4-5 disc prolapse, spinal stenosis, anxiety, depression and arthritis.
Overview
264 There is no dispute the plaintiff suffered a compensable injury to her back in the course of her employment with the first defendant.
265 The consensus of medical opinion is that the plaintiff suffered an aggravation of underlying degenerative change and lumbar spondylosis with sciatica, although the defendants ultimately submitted any sciatica had resolved.
266 There is really no suggestion of any significant functional component in the plaintiff’s presentation. Although Dr Jinks, in cross-examination, accepted there may be a non-organic component, he did not think there were any significant psychological factors present.
267 Whilst there is evidence of degeneration shown in both the 2007 and 2009 CT scans, in cross-examination, Dr Jinks was not prepared to concede there had been an improvement in the plaintiff’s condition reflected on those investigations and, in fact, said there had perhaps been a worsening. No other medical practitioner has compared the findings on the respective CT scans.
268 Counsel for the defendants conceded the plaintiff clearly had underlying spondylosis. She had a degenerative back condition which had been contributed to by work and continued on the evidence of Dr Brown.[61]
[61]T105
269 Counsel for the defendants submitted that the consequences of the plaintiff’s back condition had to be addressed in light of the admissions made by her as to her level of activity in cross-examination and when seen by doctors. There was no concession in this case that under the narrative test, the impairment was very considerable.
Credit
270 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
“… 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.”
[62](2010) 31 VR 1 at paragraph [12]
271 I found the plaintiff to be a credible, truthful witness who did not overstate the extent of her pain and restriction. Obviously, in the witness box she was in some discomfort, having to sit and stand a number of times whilst giving her evidence, consistent with her problems with prolonged sitting or standing.
272 I do not accept that in recent times, the plaintiff’s condition has significantly improved or that her walking is now excellent, as Dr Brown reported. The plaintiff experienced a flare up of sciatica for two months in October 2012, as Dr Jinks noted.
273 There is surveillance film that was not shown. Dr Ho is the only examiner who suggested there was an exaggeration on examination.
274 Affidavit evidence from the plaintiff’s son and the plaintiff’s friend corroborating the plaintiff’s account of her pain and restriction was not challenged.
275 I accept that the plaintiff is a very motivated woman who continues to work despite her constant back pain.
276 In terms of pain and suffering, the issue really is one of range, as it was submitted by counsel for the defendants that the plaintiff did not meet the narrative test.
277 However, I accept that the consequences of the plaintiff’s back injury are serious.
278 I accept that since January 2007, the plaintiff has suffered ongoing low back pain with sciatica, varying in intensity at different times depending on her level of activity.
279 As a result of her pain, the plaintiff is restricted in her movements, in particular bending, lifting and prolonged sitting or standing.
280 The plaintiff has undergone various treatment regimes, including physiotherapy, until the middle of last year, and earlier she had some traction. At present, she does exercises at home and swims when she can. She takes over-the-counter Brufen and, very occasionally, she takes Tramadol from her last prescription in 2007.
281 I am satisfied that as a result of her pain and restrictions, the plaintiff is limited in her ability to do housework and she requires assistance from her son in heavier tasks.
282 The plaintiff also has problems with prolonged sitting affecting her ability to drive further than locally. She also is now unable to travel to holiday destinations like Bali which she previously enjoyed visiting, having taken regular holidays before suffering injury.
283 The plaintiff is no longer able to engage in a number of sporting activities including skiing and waterskiing, horse riding and hiking which she enjoyed before injuring her back. She has to employ someone to help her with gardening and mowing at home.
284 The plaintiff’s evidence of the effects of her injury on these activities was unchallenged.
285 As counsel for the defendants conceded, the plaintiff, as a result of her back impairment, no longer has the capacity to do unrestricted full-time manual employment. It was conceded, clearly, she had an inability to do repetitive bending, lifting of weights of more than 15 kilograms, and Dr Yong thought the lifting limit should be 5 kilograms.
286 However, it was submitted by counsel for the defendant that this was not a serious consequence, as the plaintiff could not do manual work given her age and her degenerate back condition.
287 It was submitted the plaintiff’s lack of motivation was the “thrust” of the defence of this application[63] and that the plaintiff had been fit for modified duties years ago when examined by Dr Ho.
[63]T108
288 Taking away the subjective complaints of the plaintiff and accepting there were no psychological factors, it was submitted an absence of motivation in the context of litigation left a fair attack on the plaintiff’s believability.[64] The question was posed why the plaintiff could not do her current work on an increased hours’ basis, given her work was so light.[65]
[64]T108
[65]T109
289 I am not satisfied however, that the plaintiff only works 15 hours per week to maximise her entitlement to top up compensation payments. I accept that she is motivated to work further hours and duties but she is restricted in her capacity to do so by her back pain.
290 I accept the plaintiff is working at her capacity given her need to rest throughout the work day and at the end thereof.
291 Dr Ho’s examinations and his conclusions that the plaintiff as fit for full-time work pre-date the plaintiff’s return to work in 2009 and the difficulties she has experienced since.
292 Counsel for the defendants relied upon Dr Jinks’ certification of fitness or full-time modified duties from the outset. However Dr Jinks explained in his viva voce evidence that there had been flare ups and he thought the plaintiff’s present capacity was 15 hours and not more.
293 Counsel for the defendants also submitted that the plaintiff left work because she was not employed by the new owner. Counsel for the plaintiff however, pointed to the plaintiff’s evidence that she last worked on 18 March 2007, although Dr Jinks might have thought it was 26 March 2007[66] and it was submitted the plaintiff stopped because of her back pain.
[66]T126
294 I do not accept the submission that Dr Jinks was too close to the plaintiff and was an advocate for her. I found his evidence to be credible, clear and professional in its content and I prefer his opinion, having seen the plaintiff on numerous occasions over many years, to the opinions of medico-legal examiners who have only seen her once or twice.
295 The loss of capacity to work full time as a nursery hand or any other job requiring heavy lifting such as child care is a serious consequence for the plaintiff.
296 Whilst the plaintiff has not been referred to a specialist and she has little over‑the‑counter medication, she continues to require painkilling relief and undertakes exercises at home.
297 As the plaintiff’s back condition has persisted with little improvement, I am satisfied her prognosis is not good and the likelihood is that her symptoms will persist in much the same condition as they are now for the foreseeable future, as Mr Brearley opined. Restrictions with recreational activity and housework will continue, as will the need for conservative treatment at times.
298 Taking into account all the evidence, I am satisfied the consequences of the plaintiff’s impairment are serious. Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
Loss of earning capacity
299 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, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
300 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.
301 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
302 “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.
303 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.
304 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.
305 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
“It must be remembered that under subs (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. …”
See Barwon Spinners Pty Ltd & Ors v Podolak.[67]
[67](supra) at paragraph [70]
“Without injury” earnings figure
306 Counsel for the defendants ultimately submitted the appropriate “without injury” earnings figure was the gross earnings of $28,342 from the 2005 financial year (the highest gross earnings in the six-year period). This results in a weekly figure of $734 per week, 60 per cent of which is $327.
307 I was not asked to annualise the $680 the plaintiff was being paid when she ceased work with the first defendant in 2007.[68]
[68]T117
308 Counsel for the plaintiff submitted a higher “without injury” earnings figure was appropriate. One approach was based on $680 gross per week, which was accepted as the plaintiff’s actual earnings in March 2007, which, on an annual basis, is $35,360.
309 The weekly rate is $680, 60 per cent of which is $408.
310 In the alternative, it was put that the plaintiff’s hourly rate when first employed by Peppertree in September 2009 was an appropriate figure. On the basis of an hourly rate of $21.15, working a 38-hour week, the plaintiff would earn $803, annualised at $41,792, 60 per cent of which is $481 a week.
311 In my view, the figure that most fairly reflects the plaintiff’s earning capacity had the injury not occurred is the rate at which she was being paid at the time she ceased work – $680 per week – annualised at $35,360. Sixty per cent on a weekly basis is $408.
312 The alternative relied on by the plaintiff lacks certainty, as counsel for the defendants submitted, because there is no direct evidence there was work available for the plaintiff in that job at Peppertree/Growmaster in 2007 and 2008.
313 Further, counsel for the defendants pointed out that in the financial year ending June 2010 (albeit after the expiry of the statutory three-year post injury period), the plaintiff earned $11,850 or $282 a week.
314 The parties agreed that the current hourly rates were as follows:
·normal weekly rate − $22.39;
·Saturday rate − $25.74; and
·current Sunday rate − $35.82.
315 If the plaintiff worked for 6.5 hours on a Saturday at $25.74 an hour, she would earn $167.31. Working 6.5 hours on a Sunday at $35.82 an hour, she would earn $232.83.
316 If the plaintiff worked 8.5 hours during the week ($190.31) and 6.5 hours on Saturday ($167.31), she would earn $357.62. If she worked 6.5 hours on a Sunday rather than a Saturday ($232.83), she would earn $423.14.
317 Working 8 hours during the week ($169.12) and 7 hours on a Sunday, (246.59) the plaintiff would earn $415.71
318 I am not satisfied the plaintiff could not work two weekdays and a Sunday in her present condition. She usually works three 5-hour days during the week. Working 15 hours, two weekdays and Sunday, the plaintiff has the capacity to earn in excess of the “without injury” earnings figure of $408. Therefore, she has not suffered the requisite loss.
319 The analysis of the figures in this case, and what ultimately involved a matter of a few dollars, demonstrates the difficulties faced by the Court in applying the formula set out under the Act and confirmed by the Court in Hayhill Pty Ltd v Hodge.[69]
[69][2006] VSCA 194
320 In light of my findings as to the plaintiff’s limited ability to work in her current job, I do not accept that she has the capacity to work full time as a garden designer ($700 per week) or as a receptionist ($800 per week), as suggested by Konekt. Receptionist work requires prolonged sitting beyond the plaintiff’s capacity. Nursery management or garden design would involve manual work and prolonged standing. Her leg symptoms continue, with Dr Jinks confirming a significant flare up in October 2012.
321 Also, accepting the plaintiff’s evidence as to the difficulties she experiences in carrying out her duties for 15 hours, I do not accept she has a capacity to work greater hours in her present job, as Dr Yong and Dr Brown opined.
322 In this regard, the plaintiff disputes matters of history relied upon by Dr Brown and he really does not explain the basis of his view that the plaintiff can work full time. Further, Dr Yong, in one sense, poses considerable restrictions with a 5-kilogram lifting limit.
323 Dr Miller examined the plaintiff twice and his reports were provided to Dr Brown but not put before the Court.
324 I accept the plaintiff is working at her full capacity and is capable of only working one day of a busy weekend in any one week. Visits by her son on the weekends do not stop her from working consecutive days on the weekend. She is unable to do so because of her back pain.
325 In my view, the plaintiff does not have the capacity to work in excess of 15 hours a week, working two weekdays and one day on the weekend.
326 Another consideration is the Medical Panel opinion of February 2010 that the plaintiff would continue indefinitely to be incapable of undertaking further or additional work because of the injury (more than 15 hours per week).
327 Submissions were made by both counsel in relation to Kocak v Wingfoot Australia Partners & Ors.[70]
[70]Supra
328 Counsel for the defendants submitted the Medical Panel opinion was no more than a finding as of February 2010.
329 Counsel relied upon the decision of McDonald J in AMP Workers Compensation Services Ltd v Chalkley,[71] where his Honour held that a finding of total and permanent incapacity in November 2004 was no more than a finding at that time. Such a finding did not mean that a person will be totally incapacitated for the future.
[71][1998] VSC 29
330 His Honour noted that a number of factors subsequent to a finding of this nature, such as an unexpected improvement in a person’s condition, advances in medical science, the achievement of fresh skills or even an improvement in the labour market or the opportunity to learn fresh skills participating in an approved occupational rehabilitation service, may bring end to incapacity or reduce it.[72]
[72](supra) at paragraph [37]
331 It was submitted that the medicine in this case indicated there had been an unexpected improvement in the plaintiff’s condition since the Medical Panel decision in February 2010, as Dr Yong and Dr Brown described, and that such an improvement was consistent with the usual natural history in conjunction with good compliance with an exercise regime.[73]
[73]T113
332 Counsel for the plaintiff stressed Kocak remained the law and there was a requirement to show a change in circumstances. It was submitted the defendants had failed to show that change, and it was not sufficient, with respect to the way the case had been conducted, to simply rely on Dr Browns’ opinion.
333 I accept this submission.
334 I am not satisfied there has been an unexpected improvement in the plaintiff’s condition. I prefer the evidence of her treating general practitioner, Dr Jinks, who has seen the plaintiff on many occasions, to the views of Dr Brown and Dr Yong, who have seen her only once. Further, I note the history taken by Dr Young, and denied by the plaintiff, is inconsistent with Dr Jinks’ view as to the plaintiff’s continuing incapacity.
335 However, this finding does not assist the plaintiff in the present case in terms of her claim for loss of earning capacity, as on the relevant figures, the plaintiff has not established the requisite loss.
336 I am therefore not satisfied the plaintiff has suffered the requisite loss of 40 per cent and her application for leave to bring proceedings for damages for loss of earning capacity is dismissed.
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