Dugonjic v Stegbar Pty Ltd
[2014] VCC 799
•12 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-04277
| DUGONJIC | Plaintiff |
| V | |
| STEGBAR PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 & 30 May 2014 | |
DATE OF JUDGMENT: | 12 June 2014 | |
CASE MAY BE CITED AS: | Dugonjic v Stegbar Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 799 | |
REASONS FOR JUDGMENT
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Subject:Accident Compensation
Catchwords: Accident Compensation Act 1985; s134AB Application under paragraph s37 (a) and s38; Injury to neck with associated pain in upper limbs; Claim for loss of earning capacity; inconsistency between notice by defendant to effect that plaintiff entitled to pain and suffering damages and submission that injury non-organically caused; principles of res judicata, issue estoppel considered but dismissed: Verwayen’s case and Gardiner v Agricultural and Rural Finance Pty Ltd
Legislation Cited: Sections 134AB (37), (38) of the Accident Compensation Act 1985
Cases Cited:Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz [2012] VSCA 6; Wells v D’Amico [1961] VR 672; Brunsden v Humphrey (1884) 14 QBD 141; Commonwealth v Verwayen (1990) 170 CLR 394; Gardiner v Agricultural and Rural Finance Pty Ltd (2008) 238 CLR 570; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Elias-Mikre v Royal Melbourne Hospital [2013] VCC 1860; Roleff v Chubb Insurance Company of Australia Pty Ltd (2011) 31 VR 235;
Judgment: Leave to the plaintiff, pursuant to s134AB, to bring a damages claim for loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Mighell QC with Mr R. Ajzensztet | Maurice Blackburn |
| For the Defendant | Mr A. Middleton | Hall and Wilcox |
HIS HONOUR:
Background
1 The plaintiff seeks leave pursuant to s134AB of the Accident Compensation Act 1985 to bring a claim for damages against her former employer, the defendant Stegbar Pty Ltd (“Stegbar”) for work-related injuries which she says she suffered as a result of Stegbar’s negligence.
2 Ms Dugonjic, was born in Bosnia-Herzegovina. She migrated to Australia with her husband in 1995. During her first two and a half years in Australia she was unemployed, despite her efforts she was unable to master the English language. She is now aged 53.
3 In 1998 she obtained full-time work for Stegbar as an assembler/machine operator. She said that part of the work which she did “required repetitive forceful work with my arms putting vinyl and rubber into strips of aluminium and repetitively using hand tools, including pliers”.
4 On 28 September 2007, as part of her duties she was cleaning a machine. A lid attached to the machine dropped uncontrollably and struck her on the head. Her affidavit in this proceeding is not specific as to exactly how this event occurred. However, according to a history that she gave to Mr M A Khan, orthopaedic surgeon, to whom she was referred for treatment and assessment by her general practitioner, she described the event as follows:
“She had opened the lid/door of the machine and was attempting to secure it in an open position by placing a bar along it which she had been doing in the past when the lid dropped heavily and struck her on the forehand. She was shocked and was seen by First Aid at work. She had knocked against the left side of her head and received icepacks for it. She was given some tablets, probably Panadol, and driven home by the work attendant (Julie).”
5 This event occurred on a Friday. She attended her general practitioner, Dr Lovric, the following Monday after having rested at the weekend. She told Dr Lovric that she had a headache and a buzzing sensation in her head. The doctor found some bruising on top of her head and tenderness of the cervical spine “but no acute neurological signs”. He diagnosed a soft tissue injury and gave her Panadol and prescribed Mobic (7.5mg). He certified her unfit for work on 1 October 2007.
6 At a further visit on 14 November 2007, Ms Dugonjic complained of “headaches, slight dizziness and pain in her neck and mid-back”. The doctor prescribed Celebrex for 10 days and referred her for x-rays of her neck and mid-spine which x-rays were carried out on 15 November 2007. According to Dr Lovric they “showed some degenerative changes and a mild thoracic scoliosis”. Dr Lovric told me that the x-rays were unremarkable for a woman of her then age who had been doing manual factory work. He gave her another certificate of unfitness and suggested that she do swimming and hydrotherapy. At that stage, Ms Dugonjic made no claim under the WorkCover scheme. On 4 December 2007, Dr Lovric certified her fit for lighter duties and treated her with Mobic (15mg daily). By February 2008, Ms Dugonjic was working her usual hours but reported to Dr Lovric that she was “struggling because of her headaches, neck pain and right and left shoulder pain”. He gave her a certificate of unfitness from 12 February until 14 February 2008. On 26 February, in addition to her previous complaints, there was an added complaint of shoulder pain. The doctor referred her for physiotherapy and gave her a WorkCover certificate certifying her fit for full-time light duties until 23 March 2008.
7 As 2008 wore on, she said she continued to try to work performing modified duties and working reduced hours. She said that by the later part of the year she required a month off and was referred for opinion and treatment to the orthopaedic surgeon, Mr Khan, with whom she had a consultation on 10 December 2008. Mr Khan arranged an ultrasound of her left shoulder and referred her to a specialist in rehabilitation medicine, Dr Clayton Thomas.
8 Dr Thomas saw Ms Dugonjic on an ongoing basis and prescribed a number of medications, including Lyrica. Ms Dugonjic continues under Dr Thomas’s care.
9 In 2010, Dr Thomas referred her for rehabilitation to “Victoria Rehabilitation”. By this time she was working reduced hours, three days a week. She attended English lessons for the other two days a week. Regrettably, she remains unable to fully master the language and gave her evidence at trial through an interpreter.
10 Eventually her daily hours were reduced to four hours a day.
11 Next, she said she suffered numbness in her left leg. She said, “I believe this was as a result of repetitively using a pedal to punch aluminium”. In October 2011 she suffered pain in her hands and was referred by Dr Lovric to a plastic surgeon, Dr Wu. She underwent surgery successively for the left and right arms. This surgery was apparently deemed successful, but she said she remains troubled by pain.
12 Ms Dugonjic has not worked since December 2011. She said, “I ceased work in part because of my neck and shoulder and back problems and, in part, because of the Carpal Tunnel [Syndrome].
13 Ms Dugonjic said that she continues to suffer pain in her neck which goes down into her shoulders, especially her left shoulder with pain referred into her left arm. She also complains of pain in her back. She takes Lyrica regularly, as well as Panadol and Endep every day. She takes Celebrex but tries not to take that medication every day. She takes Effexor “for depression” and sleeping tablets.
14 Ms Dugonjic says that she is depressed as a result of her pain, her concentration and memory have been affected, and she is anxious. She says she is in constant pain in her neck and suffers headaches. “The pain in my neck is made worse by moving my neck back or holding it in one position for too long. I also experience pain if I twist my neck from side to side. I tend to hold my head down and forward to try and ease the pain”. She complains of difficulty sleeping, “As a result I am frequently tired during the day”. She says she can drive but not for a long distance and cannot now enjoy her previous hobby of gardening in which she is “restricted”. She continues to be unable to master the English language, “I can write a little bit of English, but my writing is very poor. I have difficulty reading English. I cannot use computers”. The only employment she has had in Australia is with Stegbar.
15 On 23 April 2013, a defendant served a notice under the WorkCover (Litigated Claims) Legal Costs Order. According to Mr Mighell QC, who appeared with Mr Ajzensztat of counsel for the plaintiff, “The effect of [this notice] is, we say, to in effect admit that the plaintiff has a serious injury for pain and suffering purposes”.
Legal considerations
16 Section 134AB of the Accident Compensation Act 1985 governs claims for damages for work-related injuries. Section 134AB(2) provides an entitlement to recover such damages “if the injury is a serious injury and arose on or after 20 October 1999. Section 134AB(37) defines serious injury as follows:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
17 In this proceeding reliance is placed solely on paragraph (a) of the definition. The putative serious injury is said to be the injury to the neck with associated pain in the shoulders, in particular the left shoulder, and discogenic headaches. No reliance is being placed on any low back pain or depression or anxiety. It is accepted that the Carpal Tunnel issue is unrelated to the 2007 accident. In the application of the definition of serious injury there are a number of special rules. For instance, s134AB(38)(b) and (c) provide as follows:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
18 In light of the notice served last year, the present proceeding seeks leave to bring a damages claim with respect to loss of earning capacity, and, again, there are special rules to be found in s134AB(38)(e) and (f) relative to a claim for damages for loss of earning capacity. These paragraphs provide:
“(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred.”
19 Section 134AB(38)(g) and (h) is also relevant and provides as follows:
“(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”
20 In judging the seriousness of an injury which aggravates a pre-existing condition, the appropriate analysis is to compare the extent of the aggravation, that is, how much worse the subject is after the alleged aggravation than he or she would have been had the aggravation not occurred. It is only if that aggravation can, according to the rules above, in itself be regarded as a serious injury that leave may be granted. See Petkovski v Galletti [1994] 1 VR 436 and AG Staff Pty Ltd v Filipowicz [2012] VSCA 6. These provisions operate by reference to a definition of “suitable employment” to be found in s5 in the following terms:
"suitable employment", in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker's pre‑injury employment; and
(iii) the worker's age, education, skills and work experience; and
(iv) the worker's place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
Expert opinions
21 Dr Lovric, Ms Dugonjic’s treating practitioner, has had consultations with her on average every four weeks since her accident in 2007. He has furnished some 10 reports, the earliest dated 4 December 2007, and the most recent dated 24 May 2014. In addition, his clinical notes relative to Ms Dugonjic, for the years 2005 to 2009, have been put into evidence.
22 In the most recent report he noted that Ms Dugonjic had suffered two different injuries – one being the injury sustained in September 2007, the subject of this proceeding, affecting the head, neck, shoulder and back with associated headaches and referred symptoms in her left arm; the second one being the Bilateral Carpal Tunnel Syndrome affecting wrists and hands. He said:
“I feel that she is solely incapacitated for work by reason of her initial head, neck, shoulder and back injury and associated headaches and referred symptoms to her left arm sustained in her work accident on 28 September 2007. Her other injury of bilateral carpal tunnel syndromes is different from her initial injury and it has probably exacerbated her overall condition and further prevented her from regaining fitness to return to work.”
23 He said that since his previous report, given 25 February 2014, her condition had remained stable and she remained unfit for all duties.
24 In an earlier report, of 25 February 2012, he said that Ms Dugonjic was “still significantly disabled by the initial work injury and suffers from headaches and pain in her neck, shoulders and back. She also feels very depressed as a result of her injuries and inability to work normally”. He said that she would require continuing medical and specialist care, including pain management. He referred her to Dr Clayton Thomas and said she would require psychiatric assessment relative to depression and possible physiotherapy and hydrotherapy. He concluded that he did not think “she will ever be fit for her pre-injury duties and will have chronic pain in her neck, shoulders and back as a result of her initial work injury”.
25 The doctor gave evidence before me and was cross-examined on the second day of the hearing. He said that upon his observation over the years, Ms Dugonjic’s pain and restrictions, as a result of the 2007 incident, had worsened over the years. He said he was unable to explain why those pain and restrictions had worsened, nor was he able to give any clear explanation as to the mechanism which led to the pain and restrictions. His earlier reports track the general narrative which I have already given. In a report to the Accident Compensation Conciliation Service, dated 21 July 2013, however, Dr Lovric said, “With regard to her original head, neck, shoulder and back injury, I have certified her fit for light duties, however, with regard to her new bilateral carpal tunnel syndromes, she remains unfit for all duties as she has not yet recovered following the surgery”. It will be seen that this statement seems to be at odds with the statement to be found in his most recent report, that Ms Dugonjic is unfit for all work solely as a result of the 2007 injury and independent of the effects of the Carpal Tunnel Syndrome. It did not seem to me that he provided any convincing explanation in cross-examination as to the inconsistency between the two statements. Mr Middleton, on behalf of the defendant, challenged him to identify what events had occurred between July 2013 and May 2014 which had changed affairs as the two statements would suggest they must have changed. No particular event was identified. Again, insofar as he noted a general worsening of Ms Dugonjic’s pain and restrictions, this conclusion was based upon her own complaints and not as a result of any further radiology or clinical examination.
26 Mr Khan, who it will be recalled, saw Ms Dugonjic for assessment as to treatment on 10 December 2008, provided a report to Ms Dugonjic’s solicitors, dated 12 June 2013. He reported a finding of significant restriction of neck rotation to the left but he found a full rotation of 80 degrees to the right. He noted that Ms Dugonjic complained of pain in the neck on turning to the left side with pain radiating down the left arm. “The pain was apparently worse at night time. She did not have any parasthesia or weakness in her hands”. Mr Khan conducted a follow up examination on 21 January 2009. He found her condition “essentially unchanged”. “She complained of an increasing degree of pain in the left side of her neck, left shoulder area and thoracic spine. It was a constant throbbing type of pain affecting the left shoulder and shoulder blade area.” Mr Khan detected no sign of any radiculopathy or nerve root compromise for her arms. He noted Ms Dugonjic had no problem with her right shoulder or arm and, apart from an occasional ache in the lower thoracic and upper lumbar spine, “she did not have any problem with her back. She could move the lumbar spine satisfactorily”. Bone scans of her skeleton, including the shoulders, were normal and plane x-rays of the shoulder “were negative for any bony or joint damage”. An ultrasound, however, found evidence of “subacromial bursitis in the left shoulder but without any evidence of a tear”. Mr Khan said that he confirmed that her condition was consistent with the injury described by her during the course of her employment with Stegbar. He said, “She has a discogenic lesion in her cervical spine with referred pain down the left arm and shoulder blade area but without radiculopathy”. He said he was unable to comment on her present condition. He continued, “She was found to have some non-organic symptoms as well at the time of my examination due to chronic and long standing after effects of the injury during the course of her occupation on 28 September 2007”. He said that her long term prognosis was “guarded”.
27 Following Ms Dugonjic’s referral to Dr Clayton Thomas, a specialist in rehabilitation and pain medicine, she has remained under his continuing care to the present. He furnished eight reports dated 25 February 2009, 8 May 2009, 1 July 2009, 12 August 2009, 21 October 2009, 12 January 2012, 31 January 2012 and 11 December 2013.
28 Dr Thomas saw Ms Dugonjic for the first time on 24 February 2009 reporting to Dr Khan the following day. Dr Thomas said that he “formed the following impressions”: first, that Ms Dugonjic was suffering from a “nerve” problem relating to her left arm. “It might have been from the upper cervical spine level”. He suggested an MRI scan of her neck “to exclude any neurological compromise”. He suggested a trial Topamax “over the next eight weeks”.
29 The doctor’s next report was dated 8 May 2009 and addressed to treating general practitioner, Dr Lovric. He noted, first, that the Topamax trial had been unsuccessful because of “unacceptable side effects”. The MRI scan was described as “inconclusive”. He said, “Although there is a very small disc bulge at C2/3, there is no neurocompression from that and overall it was impossible to interpret the relevance or otherwise of this disc bulge.”
30 The next report was dated 1 July 2009, reporting on a consultation occurring on 30 June. Dr Thomas noted “some improvement with Lyrica”. He said that he found her “ability to cope with her pain has improved as a result of being on the Lyrica”. At that stage he reported Ms Dugonjic working five hours per day, five days per week. On 12 August 2009 Dr Thomas sent a report to the WorkCover insurer reviewing his management of Ms Dugonjic, including the introduction of Lyrica. He concluded, “it is reasonable to expect that if her pain was better controlled and if she has acceptable or manageable side effects, then her hours at work could correspondingly increase”.
31 The next report was dated 21 October 2009 addressed to the general practitioner and related to a further consultation held on 12 October. He noted, “She was reporting left-sided cervicogenic headaches”. The dose of Lyrica was of 150mg “at night time only” with one tablet of Celebrex per day and an occasional Panadol. Dr Thomas noted, “She had hyperalgesia to the left shoulder girdle and indeed, hyperpathia, but no brush allodynia”. Therefore he concluded that Ms Dugonjic had a “definite neuropathic pain state – the unknown is – why this has occurred and what is the genesis of this, in so much as what structure is responsible for her neuropathic pain?” He noted Ms Dugonjic had poor sleep and severe headaches “which stem from the left cervical region”. He said he had had an Endep (5-10mg) at night time. He noted that he had referred her to the Victorian Rehabilitation Centre.
32 The next report was dated 12 January 2012, relative to a consultation on 13 December 2011. This report was taken up principally with references to a diagnosis of Carpal Tunnel Syndrome. The doctor observed that Ms Dugonjic “remains at work five days per week, four hours per day, performing light duties”. Dr Thomas said, “She doesn’t seem to be coping that well. I suggested that it would be reasonable with the new symptoms to cut back her hours, perhaps to four days per week with a regular Wednesday. She then told me that indeed, she has been working effectively four days per week in any case.
33 The doctor provided a lengthy report dictated on 11 January 2012 and transcribed on 31 January 2012 to the conciliation officer of the Accident Compensation Conciliation Service. He reviewed his management of Ms Dugonjic at length given the many matters covered in the earlier reports, and some additional material as well. He noted that at a review, conducted on 21 October 2010, Ms Dugonjic had completed her rehabilitation program and the treating psychologist at the rehabilitation centre had recommended that she have a community-based psychologist to assist her. “Her emotional state was still quite precarious. She was on Effexor, 75mg in the morning, and I asked her to increase this to 150mg.” According to the doctor, at this stage Ms Dugonjic was working five hours, three days per week and undertaking English classes on the other days; she was performing light duties at work. He said, “She had significant left shoulder dysfunction with weakness and pain, particularly in abduction and flexion. Neck movements were also mildly limited, particularly extension and rotation to the left. The doctor felt that her condition “had become chronic and she needed ongoing support in managing this”. Dr Thomas said that he reviewed Ms Dugonjic –
“ … on 16 August 2011. She was complaining of worsening pain in the left upper limb with parasthesia. The left shoulder still lacked abduction and flexion secondary to pain. Nonetheless, she had normal neurological examination of the upper limbs. She reported some decreased sensation of the left upper limb in a fairly non-anatomical region.”
34 Dr Thomas suggested then an increase in the dosage of Lyrica and physiotherapy. In December 2011 the diagnosis of Carpal Tunnel Syndrome was made. The doctor said, “The diagnosis is not clear-cut. She does suffer an organic problem. There do appear to be some neuropathic descriptors here. She does seem to have dysfunction of the left shoulder girdle”. The doctor concluded, “She has shown high motivation with respect to her rehabilitation. Despite this, she has a permanent partial incapacity and this is not insignificant”.
35 The last report was dated 11 December 2013 and addressed to Ms Dugonjic’s solicitors. The doctor recorded, “She denies any past history of physical problems”. He said that following surgery for Carpal Tunnel Syndrome, “There were no residual signs of carpal tunnel syndrome in either hand”. He continued:
“Diagnostically, she has a pain syndrome stemming from the event that occurred at work on 28 September 2007. She had neuropathic signs when I initially saw her. I felt that as a treating doctor her condition certainly presented as being an organic one. I think there are signs that she developed central sensitisation.”
36 He said:
“From a purely organic perspective, I think that she does have work capacity. I think she could perform light duties in the vicinity of 15 hours per week, i.e. four hours, four days per week or five hours, three days per week with days off in between. I think lifting would need to be limited to 5 kg between waste and shoulder height and avoid bending, lifting or twisting above-shoulder height or below-waist height.”
37 Those restrictions, he said, should be regarded as permanent and Ms Dugonjic was not fit for unrestricted physical work. He said her injury “should be considered a serious and significant one for a machine assembler expected to carry out repetitive forceful work”.
38 Early this year, Ms Dugonjic attended Professor Richard Bittar, a neurosurgeon and spinal surgeon, for medico-legal assessment and report. He described her current symptoms as follows:
“She complains of constant neck pain which radiates into her shoulders, particularly on the left. The pain then radiates through her left arm, forearm and into her hand. She describes her arm pain as ‘like electricity’. Her neck pain varies in character between sharp and dull and also radiates into her occipitocervical region and is associated with headaches.”
39 He said that her main complaint was of neck pain which has an average of 7 or 8 out of 10. She also complained of interscapular pain “which radiates into the lower thoracic midline and lumbar spine”. She complained also of lower back pain and numbness throughout her leg. He said, “Overall her symptoms are progressively worsening”. While the professor noted a “nonantalgic gait” and restriction of spinal flexion in the cervical and lumbar areas, with pain and limitation of movement in the left shoulder with pain, he observed “straight leg raising was normal. I could not detect any evidence of radiculopathy or myelopathy”. He made the following diagnoses:
(i)aggravation of cervical spondylosis with intractable neck and left arm pain;
(ii)cervicogenic headaches which are a result of the aggravation of cervical spondylosis;
(iii)aggravation of thoracic and lumbar spondylosis with thoracic back pain and lower back pain;
(iv)a left shoulder condition which is beyond my area of expertise;
(v)Bilateral carpal tunnel syndrome which has been successfully treated with surgery.
40 He said that Ms Dugonjic was “permanently incapacitated for her pre-injury duties”. He suggested an investigation with a “nuclear medicine (SPECT) scan in order to identify which structures may be contributing to her pain”.
41 Ms Frances Gray, physiotherapist, provided a report to Dr Lovric, dated 17 April 2008. She reported that “Vesna is progressing very slowly”. She said:
“We are managing to slowly increase her cervical range of motion, currently we can get to 60 degrees rotation on the right, but only 40 degrees to the left. Extension is still very painful and limited. Upper cervical extension is okay, but there is no lower cervical extension possible.”
42 She said that pain was “still the major problem”. She concluded, “With the timeframe involved, the repetitive nature of Vesna’s work and the continuing mechanical allodynia, maybe we should start thinking about chronic pain management”.
43 Occupational physiotherapist, Christopher Snell, from the same clinic as Ms Gray, viz, Waverley Park Physiotherapy Centre, provided a report dated 26 November 2012 to Ms Dugonjic’s solicitors. Under the heading, “Diagnosis”, Mr Snell said:
“Considering Ms Dugonjic was not seen until five months after the initial incident, the underlying problem had most likely shifted its weighting from predominantly the initial mechanical injury, to being mostly persistent/chronic pain.”
44 He said:
“Ms Dugonjic continues to experience symptoms that appear to be consistent with those seen by her initial treating physiotherapist back in 2008. Her baseline of symptoms has gradually deteriorated, with no incident evident.”
45 There was also a report, by way of VWA Physiotherapy Management Plan Form, completed by Mr Jonathon Stanley-Clark of Active Physiotherapy in Waverley Road, Mt Waverley, and dated 29 October 2009. This reported some progress described as “have increased by 30 mins over the last six weeks”. The diagnosis was shown as “cervical disc bulge/radiculopathy”.
46 Ms Dugonjic was interviewed on 11 December 2013 by Ms Kaye Angel of Flexi Personnel Pty Ltd for the purpose of assess her “realistic prospects of being able to undertake suitable alternative employment, given her limited capacity for work, resulting from injuries she sustained …”. Ms Angel reviewed Ms Dugonjic’s pain and restrictions by reference to the history and reports of Ms Dugonjic herself, and a number of the medical reports which I have already summarised. She said, “In my opinion Vesna’s neck, head, upper and lower back and both shoulder injuries and subsequent right and left hand impairments has [sic] significantly affected her work capacity”. She said that –
“ … the loss of use of a person’s upper limb [especially their dominant limb], drastically reduces their productive work capacity, most of all when performing tasks which require strength, speed and dexterity of hand and arm movements. In my opinion this supports my view that Vesna’s injuries had a significant negative impact on her work capacity and her prospects of being able to productively perform suitable alternative employment. From a recruitment perspective I would not refer Vesna to even sedentary sales or clerical duties due to her impairments and the pain she suffers throughout her body, which would also have a negative impact on her ability to consistently perform light bench type factory/process work.”
47 She said that she would not be successful in placing Ms Dugonjic in suitable alternative employment. She said:
“It would be extremely difficult for her to perform productively in the general workplace in any vocation, even with allowances being made for her restrictions, Vesna’s low level of English would also hinder her in safely and efficiently performing alternative work if she was not as fortunate to gain work with other Bosnian [sic] speaking people.”
48 She felt that Ms Dugonjic’s “medicated state” would prohibit her from operating or working around machinery.
49 Ms Dugonjic also attended Ms Katrine Green, a psychologist, for a vocational assessment report. Ms Green referred to Ms Dugonjic’s history and quoted at length from the medical report. She considered a number of possible fields of employment including “product assembler”, “production machine operation”, “factory process worker”, “product examiner/inspector”, “hand packer”, and “cleaner-domestic”. She concluded that there were no suitable employment prospects for Ms Dugonjic “within the foreseeable future”.
50 Ms Dugonjic underwent a number of medico-legal assessments at the request of the defendant. She was examined and assessed by orthopaedic surgeon Mr Michael J Dooley on 8 May 2014. He reported to the defendant’s solicitors in a report dated the following day. As to her neck, Mr Dooley reported:
“Flexion is to 30 degrees and extension is to 20 degrees. Lateral flexion to the left and to the right is to 20 degrees. Rotation to the left and to the right is to 40 degrees. Mrs Dugonjic notes pain with these movements and she grimaces during the examination process.
This said, there was a general reduction in power in the left arm but that reflexes were present and symmetrical in the arms.
51 He noted reduction in active abduction and forward flexion of the left shoulder to 40 degrees. Like restrictions in other movements. He said, “Attempts to move the left shoulder passively beyond the active range of motion are met by resistance”. He noted pain and restrictions in the lumbar spine but observed “power, tone, sensation and reflexes are intact in the lower limbs”. Mr Dooley said that Ms Dugonjic –
“ … may have sustained a soft tissue injury to the cervical spine region. This would have accounted for initial neck pain and headache. I remain of the view that one would have expected substantial recovery over a three month period. Following this period of time, I would have expected Mrs Dugonjic to have noted some intermittent neck pain and headache. I remain of the view that one cannot explain the constancy and intensity of her ongoing pain and her described disability on the basis of organic injury only. I remain of the view that much of Mrs Dugonjic’s current presentation relates to her psychological condition. She has become depressed and anxious in time. Clinical examination reveals no evidence of objective neurological deficit affecting the limbs.”
52 Mr Dooley provided a further report on 13 July 2012 relative to an examination of Ms Dugonjic on 25 June 2012 at the request of the defendant’s solicitors. Once again, Mr Dooley found limitations in left rotation of the neck and also on lateral flexion. Again, there were restrictions in the various movements of the left shoulder and “attempts to move the shoulder passively beyond the active range of motion are met by resistance”. He noted pain and restrictions in the lumbar spine but “reflexes are present and symmetrical”. As to the neck he said that MRI scanning carried out in April 2009 showed some mild degenerative change but there was “no evidence of disc prolapse or of nerve root entrapment”. As to the September 2007 injury, he said a soft tissue injury might have been expected, “One, however, would have expected symptoms to have substantially settled within a period of three months or so”. He expressed the same view as in his previous report as to the implication of functional factors. He said, “The large majority of her current condition relates to her psychological situation”. He said from an orthopaedic point of view, “Mrs Dugonjic needs to increase her activity and undertake some regular exercise”. He said, “From an orthopaedic viewpoint only, Mrs Dugonjic would be able to carry out light physical work and clerical duties”.
53 Ms Dugonjic was assessed on 5 August 2011 at the request of the WorkCover insurer by Dr David Fish, consultant, occupational and environmental physician. She described to Dr Fish, “A left shoulder problem in the past … but it resolved after two weeks treatment with tablets and had not required any loss time injury”. He found her right shoulder normal but the left shoulder had restricted motion with tenderness over the anterior rotator cuff but no wasting on circumferential measurement. “Power, reflexes, and sensation were normal.” He said this was an aggravation of cervical and thoracic spondylosis.
54 Dr Fish provided a supplementary report dated 12 September 2011 to the insurer, apparently responding to queries as to injuries to Ms Dugonjic’s skull. He said, “I conclude that while she did suffer bruising to the head, this has since resolved and that there are no direct sequelae and there is therefore no additional impairment”.
55 Ms Dugonjic was also assessed by Dr Hilol Das, consultant psychiatrist, at the request of the WorkCover insurer, on 28 October 2009. He provided his report in a letter, dated 1 November 2010. The doctor noted that Ms Dugonjic “sighed a lot and she often spoke in an over inclusive manner. Pain preoccupation was evident and she conveyed a sense of frustration and helplessness”. He said that her affect was anxious and teary. There were no psychotic symptoms and her insight was unimpaired. The doctor diagnosed an Adjustment Disorder with depressed mood. He said:
“Purely from the perspective of her psychiatric condition alone and the claim she would perhaps be able to return to her pre-injury employment for reduced hours on a gradual basis,…there would be no other restrictions or modification necessary.”
56 The insurer also had Ms Dugonjic assessed by Mr Clive Jones, orthopaedic surgeon, on 16 September 2010. Mr Jones reported to the insurer in a letter dated 20 September 2010. He said, “Currently, she is working five hours a day on suitably lightened duties. Up until May of this year, she was only working three days each week, with two days a week spent in rehabilitation, which has now ceased”. Mr Jones said, “I thought neck movements appeared to be artificially restricted and the neck was held quite stiffly, particularly in rotation. I noted, however, that she was able to turn her head normally to speak to the interpreter”. As to the left shoulder, he said, “Findings … were not dramatic and may reflect a mild shoulder bursitis”. He said there were “no abnormal neurological signs in the arms”. The left shoulder ultrasound “shows thickening of the subacromial bursar as the only positive finding”. He noted an MRI identified no focal disc protrusion or foraminal stenosis. He concluded, “These radiological appearances appear benign in the extreme”. He said that Ms Dugonjic continued to complain of “reasonably intense and presumably neuropathic pain involving the neck and left arm”. The scans displayed no obvious cause for the pain. He said that she suffered from “a very mild shoulder bursitis on the left side (and) may have neck discomfort associated with age-related degeneration of the spine potentiated by depression and the emergence of a pain disorder”. He said he believed her work capacity would remain reduced “until her depression has cleared”. As to the 2007 injury, he said, “Any aggravation caused by the event would in my view have long subsided and it is difficult to see employment as a cause at this point in time”. He said that her depression was the most significant factor currently affecting her.
57 Mr Jones provided a further report, dated 1 May 2014, to the defendant’s solicitors relative to a re-examination that he carried out on Ms Dugonjic on 3 April. He referred to pain and restrictions but observed a normal slump test and “the legs and arms are neurologically normal”. Mr Jones said, “It is impossible to reconcile this lady’s complaints of severe intractable and ongoing pain with any physical cause”. He said he believed that her arm pain was “neuropathic in origin, but a source has not yet been identified”. He said, “The prognosis is reserved. A well entrenched pain syndrome appears to be present”.
58 There was also an assessment by Dr Ralph Poppenbeek, an occupational physician, at the request of the WorkCover insurer. He examined Ms Dugonjic on 20 November 2008 and visited her workplace on 27 November 2008. Dr Poppenbeek conferred, “It is now two years since the work injury of September 2007. I believe she suffered a physical injury being aggravation of pre-existing degenerative disease, but more importantly psychological issues and a chronic pain issue”. He said by this stage “ … it is reasonable to conclude that the physical injury effects have settled”. On the basis of physical injury only, he believed that Ms Dugonjic had “a capacity to resume pre-injury duties of unrestricted hours”.
59 On 18 March 2013, Dr Tony Kostos, a rheumatologist, examined Ms Dugonjic at the request of the insurer. His assessment seemed to focus on the Carpal Tunnel Syndrome which is not part of the present application. Dr Kostos said, “It is clearly apparent that this woman is trying to portray herself as an invalid today and there is no doubt that her complaints are particularly exaggerated”.
60 Associate Professor George Mendelson, a consultant psychiatrist and specialist pain medicine physician, assessed Ms Dugonjic on 28 April 2014 at the request of the defendant’s solicitors. He was provided with a wide range of previous medical reports and observed, “The information concerning Ms Dugonjic’s physical condition that is currently available to me indicates that her complaints of constant widespread pain do not have an objectively demonstrable organic basis”. The material provided no basis, he said, that the 2007 accident –
“ … had caused a physical injury that could explain the gradual extension of pain from the area that had been struck, namely the ‘top of her head’ … to the neck, low back, shoulders, and the left side of her body. The natural history of soft tissue injuries is for gradual improvement and resolution over a period of weeks, rather than for extension of pain to other areas of the body.”
61 Dr Mendelson said that Ms Dugonjic –
“ … could be described as having ‘learned pain behaviour’, as discussed in [an] enclosed editorial from the British Medical Journal. In this situation pain complaints and pain behaviour are maintained and reinforced by environmental factors, as discussed in the editorial. From Ms Dugonjic’s account, it would appear that her husband has taken over the role of her carer and also takes care of almost all the housework, and this also tends to reinforce her pain complaints and pain behaviour.”
62 He said, nevertheless, that Ms Dugonjic “does not have any diagnosable mental disorder”.
63 The editorial from the British Medical Journal is dated 4 January 1986 over the signature of SP Tyrer, a consultant psychiatrist, at the Pain Relief Clinic at the Royal Victoria Infirmary in Newcastle-upon-Tyne. He suggested the need to distinguish organic pain from learned pain behaviour, observing –
“ … warning signs from the history include improbable descriptions of the pain - for example, whole leg pain – using affective words like ‘sickening’ and ‘blinding’ to describe it, progression of the severity and extent of the pain over time, and multiple treatments. The patient may evidence exaggerated facial expression of pain, abnormal posture, frequent grimacing and sighing, and rubbing of the affected parts. Past experience and personality factors may be of value. Patients with previous devotion to the work ethic, adoption of an adult role early in childhood, those who had been able to receive attention and help during life only by complaining of pain, and patients who have been brought up in a household with a chronically sick relative may be particularly susceptible to learned pain behaviour … Physical examination may elicit non-organic physical signs. These have been best worked out in relation to low back pain; they include over-reaction to examination; superficial skin tenderness, distribution of sensory or motor abnormalities that are not determatomic in distribution, and simulation and distraction tests. Excessive guarding and bracing movements may also be found.”
64 The defendant also relied on a report from Dr Dominic Yong, specialist occupational physician, who examined Ms Dugonjic on 25 July 2012 at the request of the insurer. Dr Yong found that Ms Dugonjic had current capacity to perform tasks but with restrictions:
·reduction in working hours;
·avoid repetitive firm gripping tasks;
·avoid repetitive hand or wrist movements;
·avoid firm pushing or pulling;
·avoid lifting more than 3kgs on a repeated basis.”
65 He concluded, “Ms Dugonjic has the presence of a psychological comorbidity [for] which she takes anti-depressant medication. She did report that these symptoms are increasing since her recent claim. This would need to be assessed by an expert in the field, a psychiatrist”.
Conclusion
66 Ms Dugonjic’s presentation in the witness box was entirely consistent with her reported pain and restrictions.
67 Her affect was flat. Despite the observations made by Mr Jones, when she conversed with the interpreter who assisted her in giving her evidence, she did not rotate her neck except to a limited extent, rather she swivelled the chair in the witness box. Her neck seemed permanently flexed forward. She alternated her posture between standing and sitting, apparently as a result of lumbar pain and restrictions, though these issues, whatever they may be, do not form part of her present application.
Organic?
68 This application is based entirely on paragraph (a) of the definition of serious injury, that is, it is based upon alleged organic injury, not on any psychological or psychiatric injury.
69 In serious injury applications under the Accident Compensation Act where physical pain and restrictions derive from non-organic causes, the consequences may be considered only for the purposes of paragraph (c) of the definition of serious injury (s134AB(38)(i)). It follows that acceptance of the views advanced by, for instance, Associate Professor Mendelson, a consultant psychiatrist, and Messrs Dooley and Jones, orthopaedic surgeons, that the plaintiff’s pain and restrictions are functional or non-organic or are such to a predominant degree, would necessarily mean the failure of this application.
70 In the present case, the argument in favour of this view of things is compelling. The opinions expressed by the defendant’s experts already referred to are clear and well argued. The plaintiff’s situation bears many of the features described by the editorialist in the British Medical Journal relative to learned pain behaviour, which I quote above. The progressive worsening of Ms Dugonjic’s symptoms observed by all examiners and testified by her progressive inability to continue with her work in circumstances where she was initially able to return to full-time duties shortly after the accident is inexplicable as the defendant’s experts observe, and I did not understand this to be disputed, the normal pattern of soft tissue injuries is one of healing rather than worsening. Dr Lovric agreed that X-rays of Ms Dugonjic’s spine in February 2007 and after the incident in September of that year were not materially different. Both sets were unremarkable for a woman of her age who had undertaken manual work. Dr Clayton Thomas, even although he advocated an organic cause for the pain and restrictions, noted that the pain is to some degree non-anatomical.
71 In Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46 at [9], Maxwell P said of these issues:
“For the assistance of judges, the applicable principles may be summarised as follows:
(1) Where an applicant for leave under s 134AB(16)(b) relies on physical injury — “permanent serious impairment or loss of a body function” — the Court in assessing the “pain and suffering consequences” must exclude “the psychological or psychiatric consequences” of the injury: s 134AB(38)(h).
(2) Accordingly, so far as the evidence allows, the Court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3) The Court must therefore exclude any pain and suffering consequences which result from or are a manifestation of —
•any recognised psychiatric condition (eg depression, adjustment disorder);
•chronic pain syndrome or disorder;
•functional overlay;
•exaggeration of symptoms, whether conscious or unconscious; or
•any other aspect of the injured person’s psychological response to the physical injury.
(4) Where the Court is unable to “disentangle” the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion (“more than significant or marked, and … at least very considerable”).
(5) For the assistance of the Court in deciding such matters, any medical witness who is of the opinion that there are both organic and non-organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.
(6) The reasoning in Richards v Wylie has no application to proceedings under s 134AB.”
72 In the present case we find references to Chronic Pain Syndrome and cognate concepts sprinkled through the assessments relied on by both defendant and plaintiff. These matters would, in themselves, be sufficient to dispose of this application in favour of the defendant.
73 But matters are not as straightforward as this. In opening his case on behalf of the plaintiff, Mr Mighell QC, who appeared with Mr Ajzensztat, after noting the service of a notice by the defendant, the effect of which was to entitle the plaintiff to bring a damages claim for pain and suffering, said, at Transcript (“T”) 2, Lines (“L”) 4-6:
“So the remaining issue to be determined, we say by Your Honour, is whether or not the plaintiff meets the necessary threshold for economic loss purposes.”
74 He continued at T2, L13-18:
“Your Honour, I have just had a discussion with Mr Middleton [counsel for the defendant] – we won’t burden Your Honour further with the issue of the notice. What we can say to Your Honour is that there is no issue that the plaintiff’s injury constitutes a serious injury for pain and suffering purposes.”
75 Counsel for the defendant did not dissent from that statement. When Mr Mighell completed his opening, I invited counsel for the defendant to make any remarks in opening which he cared to. He replied:
“Not particularly at this stage, Your Honour. Just that the issues relate to capacity for employment and also to the effect of the injury of September 2007 and what – I think Mr Mighell took you to – the differences of opinion about certain aspects. And, of course, at the end I’ll be submitting that on all the evidence, that we haven’t reached the threshold, or the plaintiff hasn’t discharged the burden of proof to get to that mathematical figure required.” (T12, L19-27)
76 The reference to a “mathematical figure required” is obviously to the 40 per cent requirement of loss of earning capacity referred to above in s134AB’s provisions as to damages for pecuniary loss viz s134AB(38)(e) and (g).
77 Evidence in support of the view that Ms Dugonjic’s pain and restrictions are organically caused is relatively slight. Dr Clayton Thomas diagnoses a Chronic Pain Syndrome but describes it as “organic”. A number of practitioners, including Dr Clayton Thomas and Dr Lovric, refer to “neuropathic pain”. This appears to mean no more than “nerve pain”. Since all pain is perceived or mediated through nerves it is far from clear what neuropathic pain is. Dr Lovric described it as a diagnosis of exclusion by which he took to mean a diagnosis to give where nothing else seemed to fit. He agreed with me that it was equivalent to “idiopathic”. In the circumstances, is it competent for the defendant to rely on the argument that the plaintiff’s pain and restrictions do not count because they are not proven to be organically caused? The logic of agreeing to the plaintiff being entitled to bring a damages claim for pain and suffering must be that, in accordance with the general principles as to what constitutes a serious injury as appearing from the definition in s134AB(37) and the pertinent provisions to be found in s134AB(38), there has been an organic injury productive of consequences when judged by comparison with other cases and the range of possible impairments which may fairly be described as being more than significant or marked and as being at least very considerable. This is entirely inconsistent with the view that the whole of the plaintiff’s pain and restriction do not count because they are not proven to be organically-based. Can it be right for the defendant to be permitted to maintain these inconsistent positions?
78 The notice served by the defendant in April 2013, is not the result of an adjudication by a court or tribunal. On the face of it, therefore, it would not appear to be apt to create either a res judicata or an issue estoppel; but litigious steps falling short of determinations by a court or tribunal can have this effect. In Wells v D’Amico [1961] VR 672, a driver crashed his car negligently damaging the structure of a shop and also its stock in trade. A complaint was filed in the Court of Petty Session to recover the value of the stock damaged. The defendant admitted liability and settled the proceeding which was struck out; but the complainant refused to sign a release, then issued further proceedings seeking to recover the damage to the structure. Gavan Duffy J on review held that the cause of action for the damage to the stock was substantially the same cause of action as the claim for damage to the structure and, therefore, a res judicata arose and the further proceeding was properly dismissed. This case, and the famous case of Brunsden v Humphrey (1884) 14 QBD 141, show that a step such as taking money paid into court can also have the effect of creating a res judicata. In the present instance I was not taken to the subordinate legislation under which the relevant notice was served, or given any argument based on these doctrines.
79 It is unnecessary in the circumstances to pursue these matters further because, in my view, independently there are other grounds which preclude the defendant from now relying upon a contention that the plaintiff’s pain and restrictions are not organically based.
80 In Commonwealth v Verwayen (1990) 170 CLR 394, the Commonwealth of Australia had given a plaintiff who claimed damages arising out of the loss of HMS Voyager in 1964, to understand that it would not rely on the Statute of Limitations as a defence. The Commonwealth repented of that view and sought to rely on the statute. By a majority of four to three, the High Court held that the Commonwealth was estopped from relying on the statute. The dissenting Justices were of the view that justice could be done between the parties by ordering the Commonwealth to pay the costs thrown away by reason of its initial failure to plead the Statute of Limitations. The majority, however, felt that the expense and stress entailed in prosecuting the case, in the belief that no Limitations of Actions Act defence would be taken, was sufficient detrimental reliance to preclude the Commonwealth from relying on the statute. Verwayen’s case is controversial because it is impossible to extract a clear ratio decidendi from the judgments. Nevertheless, to allow the defendant here to rely on the contention that the plaintiff’s pain and restrictions are non-organic would, in my view, be inconsistent with the decision in Verwayen. Despite the lack of a ratio decidendi, Verwayen’s case has not been overruled, and I do not understand there to be anything inconsistent with what I have just said in the court’s more recent decision in Gardiner v Agricultural and Rural Finance Pty Ltd (2008) 238 CLR 570.
81 At T76-77, Mr Mighell QC, in submissions in reply, submitted that in light of the exchanges in the openings by the parties, which I have quoted above, it is not competent for the defendant now to raise an issue as to alleged non-organic causes for the plaintiff’s pain and restriction. For the reasons already given I accept that submission. The case, here, may be regarded as stronger than Verwayen’s because in Verwayen the trial had not commenced when the defendant made its change of front. Here, both sides had closed their evidence before it became evident that the defendant was going to rely on a contention that the pain and restrictions of the plaintiff were non-organically caused and therefore not proper for consideration.
The economic issue
82 I turn, then, to discuss the economic issues relative to the plaintiff’s alleged loss of earning capacity. The plaintiff, to succeed, must establish now that she will suffer a financial loss of 40 per centum or more of her earning capacity (s134AB(38)(e)) and that even with rehabilitation and retraining she would not be able to earn more than 60 per cent of the gross income of which she would have been capable of earning without the injury.
83 Whilst the evidence that the plaintiff gave at trial, and her history to most of the medical examiners that she suffered no neck or back problems before September 2007, is belied by the clinical records from Dr Lovric’s surgery showing complaints of neck and back pain and referrals for radiological examination in February 2007, it seems that the plaintiff was asymptomatic in the sense of being able to cope with full-time employment immediately before the incident of September 2007. Therefore, whilst the 2007 injury should be regarded as an aggravation rather than an entirely new injury, the relevant comparison is between the plaintiff’s ability to engage in full-time, unrestricted work prior to the accident and her restriction to limited light duties and ultimately permanent cessation of work after it.
84 At T24, Mr Middleton asked the plaintiff:
85 “Q: If you had a miracle recovery from your neck and your shoulder and back pain tomorrow, do you think you could go back to the job you were doing if you stopped back in 2011?---“
86 The plaintiff replied:
87 “A: No.”
88 It follows that the comparison which s134AB requires me to make, is not between the plaintiff able to carry out full-time unrestricted duties on the one hand and now prevent it from engaging in any employment at all, but, rather, her ability to carry out full-time unrestricted duties before September 2007 and her situation, thereafter, limited to part-time light duties before the supervening consequences of the Carpal Tunnel Syndrome led her to cease work entirely. Mr Middleton submitted that the approach to the operation of the various sub-paragraphs in ss(38) relative to loss of earning capacity, was authoritatively stated by the Court of Appeal in a joint judgment in Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33. In that case, Ormiston, Chernov and Phillips JJA were considering an argument based on a view that injured workers become unemployable because of the existence of their WorkCover claims and the history of injury means that employers would not take the risk of re-employing them. Hence, so the argument ran, workers in this situation had suffered a total loss of earning capacity. The court rejected that argument, stating at paragraphs [27]-[31]:
89 “The possibility that, irrespective of the nature and extent of the injury first suffered, a worker becomes unemployable because of the subsequent claim for compensation, is troubling. On the one hand, it may be said to be a realistic approach to the possibility of further employment, which will lead to common law damages for those in our community who are the most vulnerable because of injury at work. On the other hand, the mere reference to “capacity for any employment” does not, on its face, suggest that Parliament was concerned with an economic capacity rather than a physical or mental capacity. For instance, in para (g) what is relevant, after considering rehabilitation or re-training or the possibility of rehabilitation or training, is —
90 ‘… a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion …’
91 In our opinion, the expression “if exercised” means “if exercised in employment”. Parliament is looking here to a physical capacity for work which, if exercised in employment, would bring about the result that the worker was earning more than the limit relevant to serious injury. It is not concerned with whether employment will or will not be obtained: it is concerned rather with the economic yield of such work, if the capacity for that work was in fact exercised in employment. Mr Forrest pointed out that this was at least consistent with the definition of “suitable employment” which spoke of employment “for which the worker is currently suited (whether or not that work is available)”.
92 Accordingly, we would reject the argument that paras (e) to (g) of subs (38) are concerned with anything but the physical or mental capacity of the injured worker to work again. That appears consistent, too, with the expression found in para (b) of subs (38), and as well para (c) — namely —
93 ‘… when judged by comparison with other cases in the range of possible impairments or losses of a body function etc etc.’
94 That describes an objective test, not a subjective one, and it supposes a wide spectrum of cases which, if the argument about non-employability by reason of the making of the claim were accepted, would be very significantly reduced — and reduced without sufficient justification.
95 Next in relation to s134AB(38), there is the question of onus of proof in relation to economic loss. Paragraph (e) expressly casts upon the worker the burden of establishing that he or she has, at the date of the hearing of the application, “a loss of earning capacity of 40%um or more” and that that loss will “continue permanently”. As we have seen, para (f) then explains how to measure the loss and para (g), in directing the court to bring to account the possibility of rehabilitation or re-training, reads, so far as relevant to onus of proof —
96 ‘a worker does not establish the loss of earning capacity required by paragraph (b) [of subs (38)] where the worker has or would have after rehabilitation or re-training … a capacity for any employment … which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion … had the injury not occurred.’
97 Mr Forrest urged that the burden of dealing with the possibility of rehabilitation or re-training within para (g) rested on the worker, but that was disputed. Mr Maxwell pointed to the difference in wording between para (e), where the burden was expressly cast on the worker, and para (g) where it was not, or at least not in express terms. If the two were to be equated, he asked rhetorically, why was the same formula not used in both? The answer, he submitted, was that it was not up to the worker to prove that he or she did not have or would not have after rehabilitation or re-training, a relevant capacity for employment; it was up to those who asserted the contrary to establish it.
98 We consider that Mr Forrest’s submission is to be preferred. The burden of proving economic loss is expressly placed by para (e) on the worker, and as the question of rehabilitation or re-training is but part of that larger issue, we think the better view must be that the onus remains on the worker even in relation to the matters canvassed by para (g). Indeed subs (19)(b) appears to provide so expressly. It reads: —
99 ‘For the purposes of subsection (16)(b) — …
100 (b) for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.’
101 Accordingly, in our opinion the burden of proof under para (g) of subs (38) does not shift from the one upon whom the overall burden lies of proving the case for leave.”
102 Mr Middleton also referred me to a recent judgment of Judge Jordan in this court in the matter of Elias-Mikre v Royal Melbourne Hospital [2013] VCC 1860 where His Honour stressed the burden which lay on a worker in circumstances such as the present. Mr Middleton said at T74-75, L31-10:
103 “As I said, Your Honour, the plaintiff is required to show that rehabilitation and retraining would not achieve the level of 61 per cent, if we use the reverse. And that’s in circumstances where, in my submission there is sufficient evidence to suggest this lady, as a result of her injuries in September 2007, has a capacity for suitable employment. The burden of proof is for her to show that the retraining or rehabilitation would not achieve that. There is no evidence of that, in my submission, and no attempt by the plaintiff to discharge that burden.”
104 Mr Mighell QC and Mr Ajzensztet, on behalf of the plaintiff, submitted that in the three financial years prior to her injury, as well as the year of her injury, her gross income was as follows:
2004/5 $42,411 2005/6 $46,558 2006/7 $35,746 2007/8 $46,363
105 The plaintiff’s without injury earnings, they submitted, should be regarded as $50,653, representing increases provided for by the relevant enterprise agreement. They referred to Roleff v Chubb Insurance Company of Australia Pty Ltd (2011) 31 VR 235 at [31] per Ashley JA, and [41] per Hargrave AJA. They said 60 per cent of that figure was $30,391. They submitted that the plaintiff does not have a capacity to work at all. Alternatively, her residual work capacity would be limited to 15 and a half hours per week, which would constitute less than 60 per cent of a full working week, and therefore less than 60 per cent of her “without injury” earning. They said, at 15 and a half hours per week, her earning rate would be $27 per hour.
106 These submissions appear to me to be plausible. I do not regard the plaintiff as malingering. I have explained why a contention that the pain and restrictions which she undoubtedly suffers must be regarded as organically based for the purposes of the present determination. Both pain and restrictions have been, according to all the medical evidence, in particular the evidence of Dr Clayton Thomas and Dr Lovric, worsening. The assessment of an ability to work no more than 15 and a half hours per week seems to me to be realistic.
107 The plaintiff’s unchallenged evidence is that she has been unable to master English. Again, no one has suggested that this is a pretence and it accords with the observations made by all those who have assessed this, that it represents a formidable obstacle to effective rehabilitation and retraining. The consultants, whose reports are relied on by the plaintiff, negate the possibility of effective retraining and their evidence stands uncontradicted. Kaye Angel, the human resources consultant, identified a number of possible employment options for the plaintiff, the highest being a quality assurance inspector at a rate of $19.66 per hour. At that earning rate, at 15 and a half hours per week, the plaintiff would not attain 60 per cent of her accident pre-earnings. I should record that there seems a certain unreality in considering a role such as this could be fulfilled by a person with a demonstrated inability to obtain a command of English. These limitations should be regarded as permanent, having regard to the fact that she is now in her middle 50s and remains unable to cope with English almost 20 years after migrating to Australia.
108 Mr Middleton submitted that the plaintiff’s case did not deal at all with her prospects of retraining as distinct from rehabilitation. Therefore, he said, she failed to discharge the onus necessary for success on her application. I reject that submission. It was not suggested to her that her failure to master the English language was because of a lack of effort. This failure negates the possibility of her retraining and moving to some other form of work.
109 Accordingly, the Court grants leave to the plaintiff, pursuant to s134AB, to bring a damages claim for loss of earning capacity.
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