Efem v Back Foods Australia Pty Ltd
[2017] VCC 1221
•7 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00733
| CEVHERIYE EFEM | Plaintiff |
| v | |
| BACK FOODS AUSTRALIA PTY LTD (formerly known as BETTA FOODS (VIC) PTY LTD) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 23 August 2017 | |
DATE OF JUDGMENT: | 7 September 2017 | |
CASE MAY BE CITED AS: | Efem v Back Foods Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1221 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – plaintiff suffered a spinal injury as a result of being engaged in the one form of work – plaintiff employed by three different employers during the whole period of her employment doing that work – whether the plaintiff had suffered a serious injury relevant to pain and suffering and loss of earning capacity – whether the last employer responsible for the serious injury – creditworthiness and reliability
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602
Judgment: The plaintiff has leave to bring a proceeding at common law against the defendant to recover damages for the pain and suffering and loss of earning consequences resulting from the spinal injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Meldrum QC Mr C Hangay | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms D Manova | Minter Ellison |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-one-year-old married woman who was born in Cyprus and who came to Australia in 1966. She has two children, who are both adult and independent of her, and her husband. She suffered injury to her spine arising out of, and in the course of, her employment between April 2002 and October 2013.
2 Mr R Meldrum QC appeared with Mr C Hangay of Counsel for the plaintiff. Mr D Manova of Counsel appeared for the defendant.
The issues
3 The defendant conceded that the plaintiff had suffered an aggravation of degenerative changes in her neck and lower back which constitute compensable injuries.
4 Counsel for the plaintiff submitted that because the injuries to the plaintiff’s neck and lower back arose out of, and in the course of, the plaintiff’s employment, that it was permissible for the plaintiff to submit that the loss of body function is constituted by the spine. Counsel for the defendant did not submit, in reply, that it was not open for me to conclude that the body function which has been impaired is the spine.[1]
[1]Transport Accident Commission v Zepic [2013] VSCA 232
5 The plaintiff was employed by several different employers between April 2002 and October 2013:
· Katch Recruitment Plus, which is a recruitment agency, from 27 March 2002 to 19 August 2002. It placed the plaintiff with Betta Foods (Vic) Pty Ltd.
· Betta Foods (Vic) Pty Ltd from 19 August 2002 to 31 January 2005.
· Grace Tombolato Enterprises Pty Ltd from 31 January 2005 to 1 November 2010.
· Betta Foods (Vic) Pty Ltd from 1 November 2010. It changed its name to Back Foods Australia Pty Ltd. The contract of employment which the plaintiff was required to execute backdated her commencement with this employer to 9 November 2009.
6 The different employers and periods of employment became relevant to an issue raised by the defendant; that is, if the plaintiff has suffered a serious injury, then it is for her to establish which employer is responsible for the serious injury.
7 There were a number of other issues as well: the creditworthiness and reliability of the plaintiff, and whether the pain and suffering and loss of earning capacity consequences meet the statutory test of seriousness.
The Plaintiff’s work
8 The plaintiff described the work she performed between April 2002 and October 2013 as follows:
“7.The work the Defendant required me to perform was heavy, awkward, repetitive and fast-paced.
8.I was required to perform three main tasks for the Defendant as follows.
9.The first task was lifting and stacking tubs of liquorice and marshmallows that had to be stacked from a bench onto a pallet. The tubs were heavy, 14kg or more. The stacks we usually 18 tubs high, above head-height, and four stacks per pallet. The work was fast-paced as one pallet had to be loaded in around 15 minutes.
10.The second task was filling the production line with stock. I was required to remove liquorice out of a box and place it on to the production line. The work was fast and required use of my hands and repeated bending. Chocolate-coated liquorice was moving along the production line and into a tub. I then had to lift and stack the tubs onto a pallet.
11.The third task was packing liquorice into boxes and stacking them. I had to repeatedly use my arms above shoulder height and bend and lift to do this work.
12.On occasions I would also have to clean the inside of a machine that oiled the liquorice. This was difficult, physical work.
13.Sometimes I would also have to pour liquorice out of tubs and onto lines.
14.I was often working in the same position for two to three hours at a time, on some occasions longer than that, if there were a lack of staff members for example. In about the first few years I worked for the Defendant, the rotations were half-day rotations.
15.Until about 2005, sometimes I would also have to manually move the pallets that had the trays on them a metre or two. After that, on occasions I would have to move the pallets using a trolley that had wheels on it, but it still required pushing and pulling of the weight of the load.”[2]
[2]Plaintiff’s Court Book (“PCB”) 10-11
9 The defendant did not challenge the plaintiff’s account of the tasks she was required to perform in undertaking her work, nor the physical stresses and strains associated with undertaking that work.
The occurrence of injury
10 The plaintiff experienced some pain to her body prior to commencing employment with the defendant:
· In October 2005, she experienced pain in both sides of her chest.
· In June 2009, she experienced pain in her lower back.
11 There is nothing in the medical evidence which suggests that the pain in the plaintiff’s chest has any relationship to the impairment of the function of her spine.
12 The plaintiff saw Dr Saban, general practitioner, for treatment for the pain she experienced in her lower back in June 2009. Dr Saban’s clinical notes reveal that the plaintiff saw him on 3 June 2009. His cryptic note is of low-back pain with tenderness over the right sacroiliac joint.[3] The plaintiff subsequently saw him for treatment for other medical conditions, but not her lower back until 11 July 2013. It would appear that what occurred in June 2009 is of doubtful relevance to the onset of lower back pain which the plaintiff contends is a part of the body function which has been impaired.
[3]Defendant’s Court Book (“DCB”) 12
13 Counsel for the plaintiff opened her case by referring to not only the plaintiff’s neck and lower back, but also her shoulders, and principally, her right shoulder. Dr Saban’s clinical notes contain references to occasions when the plaintiff first attended for medical treatment for her neck, lower back and right shoulder:
· March 2011 - the plaintiff complained of left shoulder pain and restricted neck movements. She was referred off to have an x-ray of her neck.[4]
[4]DCB 14
· April 2011 (but probably March 2011) – Dr Saban reviewed the x-ray of the plaintiff’s neck, noting that it demonstrated osteoarthritic changes. He prescribed her Mobic, which is an anti-inflammatory.[5]
[5]DCB 14
· 20 March 2013 – The plaintiff complained of right shoulder pain which Dr Saban considered might have resulted from supraspinatus tendinitis or trochanteric bursitis. He referred the plaintiff to have an ultrasound.[6]
[6]DCB 14
· 30 March 2013 – Dr Saban reviewed the ultrasound which apparently demonstrated right shoulder subacromial bursitis. He advised the plaintiff to continue using Mobic.[7]
[7]DCB 14
· 5 April 2013 – Dr Saban suggested that the plaintiff have an injection into her right shoulder to treat the subacromial bursitis.[8]
· 11 July 2013 – The plaintiff complained of pain in her neck going into her right arm and right sided lower back pain with pain radiating into her right leg.[9]
[8]DCB 14
[9]DCB 15
14 It is unnecessary to review the clinical notes any further because what they demonstrate are complaints by the plaintiff of pain in her neck, lower back and right shoulder, and referral for specialist treatment and opinion to which I will now turn.
15 Dr Saban referred the plaintiff to Mr Dallalana, orthopaedic surgeon, to treat the plaintiff’s right shoulder injury. He, in turn, referred the plaintiff to Mr Quan, orthopaedic surgeon, to treat the plaintiff’s neck injury. The parties tendered a number of letters and reports of Mr Dallalana[10] and Mr Quan.[11] Mr Dallalana concluded that the pain the plaintiff was experiencing was not coming from her right shoulder.[12] That was the reason why he referred her to Mr Quan.
[10]PCB 110, 111 and 112 and DCB 1, 1a-1c and 2
[11]PCB 106, 107 and 108-109
[12]DCB 1 and 2
16 Mr Quan examined the plaintiff on 18 March 2014 and 1 July 2014. He could not find any objective evidence of any neural compressive pathology or radiculopathy on the right side of the plaintiff’s neck that was consistent with the complaints she was making of pain to the right side of her neck and her right shoulder.[13] It would appear that the reason why he was looking for compressive pathology or radiculopathy was to explain the plaintiff’s complaints of pain in her anterior chest wall and down her arm into her forearm and hand, with associated paraesthesia and weakness. In the absence of any objective finding, he offered the opinion which I have just briefly summarised; however, my reading of the manner in which he expressed that opinion is that he did not discount that the plaintiff had suffered some injury to her neck.
[13]PCB 109
17 That brings me to a number of medico-legal assessments, and principally those undertaken by Mr Dooley, orthopaedic surgeon, and Professor Bittar, neurosurgeon. Professor Bittar examined the plaintiff on 9 January 2017 and Mr Dooley examined the plaintiff on 25 January 2017. Both appear to have examined an adequate volume of radiology. Professor Bittar considered that the plaintiff had suffered an aggravation of cervical and lumbar spondylosis.[14] Mr Dooley considered that the plaintiff had suffered a soft tissue injury which involved some aggravation of underlying degenerative disc disease in her cervical and lumbar spine.[15]
[14]PCB 132
[15]DCB 59
18 Counsel for the defendant, after some debate with me during her final address, submitted that the defendant would not resile from the determination that CGU Workers’ Compensation made on 17 July 2015 accepting liability for injuries to the plaintiff’s neck and back.[16] The submission was properly made, and is consistent with the conclusion I would have reached had I been asked to determine whether the plaintiff suffered an injury to her neck and lower back arising out of, and or in the course of, her employment with the defendant.
[16]PCB 50-53
The Plaintiff’s medical treatment
19 The plaintiff has remained under the care of Dr Saban. In his reports dated 4 February 2016[17] and 27 July 2017,[18] he referred to complaints made by the plaintiff of pain in her neck and right shoulder with pain radiating down her arms, and pain in her back radiating into her legs. He also gave a short summary of the treatment he provided the plaintiff, which I will summarise in more detail shortly.
[17]PCB 100-101
[18]PCB 104-105
20 Despite the opinions of Mr Dallalana and Mr Quan, Dr Saban was convinced that there was pathology in the plaintiff’s neck, right shoulder and lower back. For example he considered that the plaintiff had suffered a rotator cuff injury to her right shoulder, foraminal stenosis at C5-C6 in her neck and a disc bulge at L4-L5 in her lower back. The many radiological investigations undertaken on the plaintiff between 4 April 2011 and 26 September 2016[19] do show pathological changes in each of those areas of the plaintiff’s body, but none of them impressed either Professor Bittar or Mr Dooley that they were of any clinical significance. I prefer the opinions of Professor Bittar and Mr Dooley, because of their specialist training in the area of treatment of spinal injuries, over the opinion of Dr Saban.
[19]The plaintiff has had nineteen radiological investigations directed to her right shoulder, neck, lower back, right hip and left heel according to the index in the Plaintiff's Court Book
21 Dr Saban referred the plaintiff to Dr Sullivan, interventional pain specialist and specialist anaesthetist. It would appear that he saw the plaintiff on 3 February 2015 and on a number of subsequent occasions, with the last being on 14 September 2016. He provided a number of letters and reports which outline the treatment he provided the plaintiff.[20] His report dated 6 October 2016 appears to incorporate an opinion based upon each of the occasions that he treated the plaintiff.[21]
[20]PCB 80-81, 82-85, 86, 87-89, 90, 91, and 92-95
[21]PCB 91-95
22 Dr Sullivan obtained a history from the plaintiff of pain in her neck and right shoulder with pain radiating into her right arm, and pain in her lower back radiating into her groins and the posterior aspect of her thighs and bilateral foot pain.[22] He prescribed her a Norspan patch for pain relief, and recommended that she undergo a C6 selective nerve root injection and undergo a multidisciplinary pain management program.[23] The plaintiff refused to undergo the nerve root injection. It would appear that during the time he treated her that, the plaintiff had also had physiotherapy and continued to use medication for pain relief.
[22]PCB 80, 83, and 87
[23]PCB 8
23 In his report dated 6 October 2016, Dr Sullivan provided a diagnosis of the plaintiff’s injuries to her neck and lower back which is consistent with the opinions of Professor Bittar and Mr Dooley. In relation to her neck, he considered there was an organic basis for her complaints of pain because of the presence of degenerative changes at C5-6. In relation to her lower back, he considered that there was an organic basis for her complaints of pain because of the presence of degenerative changes at L4-5 and L5-S1. He considered that the neural foraminal congestion at C5-6 affecting the C6 nerve root “potentially” provided an explanation for left-sided brachialgia, but that would appear to be inconsistent with the opinions of Professor Bittar and Mr Dooley. I prefer their opinions over the Dr Sullivan’s.
24 The plaintiff was next referred to undergo a multidisciplinary cognitive-based pain management program. Dr Weekes, pain specialist, attended on the plaintiff during her participation in that program. He provided a report dated 8 August 2017[24] in which he described the treatment which the plaintiff was provided, and his diagnosis of her injuries. His diagnosis was the same as Professor Bittar, Mr Dooley and Dr Sullivan. He considered that the plaintiff had suffered an aggravation of cervical and lumbar spondylosis.
[24]PCB 59-61
25 Concentrating on the plaintiff’s treaters, it would appear that they all agree that the plaintiff has suffered an aggravation of cervical and lumbar spondylosis, except for Dr Saban, who considered there was stronger organic pathology present to explain the plaintiff’s complaints of pain.
26 Dr Sullivan was convinced that the plaintiff was “completely precluded from returning to work in any meaningful capacity” because of the injuries to her neck and lower back.[25] He expressed the same opinion with respect to her right shoulder; however, for reasons which I think are implicit in my reasoning so far, I do not accept that the plaintiff suffered an independent injury to her right shoulder, and if she did, it is of little consequence. Dr Weekes was of a similar opinion regarding the plaintiff’s capacity for work. He considered that the longevity and severity of her symptoms provided for an unfavourable prognosis, leading him to conclude that she was highly unlikely to be without pain in the future. He did not offer an opinion whether the plaintiff’s injuries impaired her capacity to work, but it is a strongly expressed opinion from which I think I can infer that pain of that order would interfere with her capacity to work.
[25]PCB 94
27 Although Dr Saban based his diagnosis on his view that there is an organic basis for his diagnosis of injuries to the plaintiff’s neck, right shoulder and lower back, he was otherwise of the opinion that at the time when he wrote his last report on 27 July 2017, the plaintiff was unfit for her pre-injury work or alternative work. He was issuing her with certificates for incapacity to that effect.[26]
[26]PCB 104-105
28 Dr Saban referred the plaintiff to Dr Rasaratnam, rheumatologist. The plaintiff saw him on 18 July 2013, 13 August 2013 and, lastly, on 8 October 2013.[27] It would appear that the purpose of the referral was for Dr Rasaratnam to investigate the plaintiff’s complaints of pain in her right shoulder, and, to a lesser extent, in her left shoulder. He referred the plaintiff to have a number of examinations to determine whether she had any pathology in her right shoulder, which could explain her complaints of pain, and my appreciation of the purpose of those investigations was to determine whether she had an active inflammatory arthritic condition. None of the letters which he wrote to Dr Saban touch on the plaintiff’s injuries in any material way, so I am not convinced that they are of any particular relevance to the issues which I am to consider in this application.
[27]DCB 5-8
The Plaintiff’s medico-legal examinations
29 The plaintiff saw Mr Blombery, vascular physician, on 26 February 2015 and 19 January 2017. He provided two reports dated 16 March 2015[28] and 17 February 2017.[29] On the first occasion he examined her, he considered that the pain experienced by the plaintiff resulted from previously asymptomatic degenerative changes in her neck and lower back becoming symptomatic. He also considered that there were some changes in her right arm, which were consistent with a component of Complex Regional Pain Syndrome Type 1, fulfilling an internationally acceptable diagnostic criteria.[30]
[28]PCB 113-117
[29]PCB 118-128
[30]PCB 116-117
30 On the second occasion Mr Blombery examined the plaintiff, he expressed the same opinion relevant to the injuries he considered the plaintiff had suffered, and that she had features of a widespread Pain Syndrome which he considered remained consistent with a Complex Regional Pain Syndrome Type 1. He added that he considered that the plaintiff’s injuries were organically based and were amplified by the Pain Syndrome which he considered was also organically based.[31]
[31]PCB 120-122
31 On both occasions that Mr Blombery examined the plaintiff, he considered that her injuries and the impairment caused by them was having a “very marked effect” on her ability to undertake her pre-injury employment and alternative suitable employment.[32]
[32]PCB 121-122
32 Professor Bittar examined the plaintiff on 9 January 2017.[33] I have already dealt with his opinion in some relevant detail. He expressed a similar opinion to Mr Blombery, that the injuries to the plaintiff’s neck and lower back have a significant organic component, and that the plaintiff does not have a realistic capacity to return to her pre-injury employment or undertake suitable employment.[34]
[33]PCB 129134
[34]PCB 130-134
The Defendant’s medico-legal examinations
33 Counsel for the defendant largely analysed the defendant’s medico-legal examinations from the perspective of the plaintiff’s creditworthiness and reliability.
34 It will be seen shortly that Dr Littlejohn, rheumatologist, Dr Elder, occupational physician, Dr Slesenger, occupational physician, Dr Karna, rheumatologist, and Mr Dooley placed significant emphasis on the results of their examinations of the plaintiff, which then became a major focus for them in diagnosing whether the plaintiff had suffered an injury.
35 The plaintiff saw Dr Littlejohn on 9 January 2014 and 19 August 2014. He provided two reports bearing those dates.[35] A comparison between his two reports demonstrates that he expressed a very similar opinion in his second report, which is the one I propose to concentrate on. Initially, he did not consider that the plaintiff was exhibiting any signs of abnormal pain behaviour,[36] which is in contrast with what other examiners considered to be the case. On examination, he did not find any neurological abnormality in the plaintiff’s right arm. He found inconclusive signs of bicipital tendinitis and de Quervain’s tenosynovitis.
[35]PCB 191-207
[36]PCB 194
36 Dr Littlejohn concluded that the plaintiff had a significant myofascial Pain Syndrome to which psychosocial factors were contributing. It was those factors which he considered were generating pain amplification and regionalisation of her pain. He did not discount that there was an organic basis for her complaints.[37]
[37]DCB 196-197 and 204-206
37 The plaintiff saw Dr Elder on 25 June 2015. He provided one report bearing that date.[38] After conducting a clinical examination, he concluded that the plaintiff presented with “an overwhelming pain presentation”.[39] He accepted that her work was the cause of her neck and lower back injuries, but he considered that Dr Blombery’s diagnosis was wrong. He considered that the plaintiff was suffering from a Complex Regional Pain Syndrome.[40] The balance of his opinion is of no relevance because it is related to an impairment assessment.
[38]PCB 208-212
[39]PCB 211
[40]DCB 208-212
38 The plaintiff saw Dr Slesenger on 27 November 2015. He provided three reports. The first was to CGU Workers’ Compensation dated 16 December 2015,[41] a short supplementary report dated 9 February 2016[42] and a further report dated 20 October 2016 to the solicitors for the defendant.[43] In his first report, he referred to his clinical examination of the plaintiff, concluding that there was no physical basis for the plaintiff’s impairment. He added that he considered that there might be a psychogenic cause for the way she behaved when examined.[44]
[41]DCB 30-41
[42]DCB 42
[43]DCB 43-46
[44]DCB 39-41
39 The examination conducted by Dr Slesenger is very extensive, and so much so that I do not propose to summarise it in much detail except that he noted the following: the plaintiff was observed to have difficulty moving onto, and off the examination couch, a chair, a bed, needed assistance in dressing and undressing; she walked with a pronounced left-sided limp which varied, and her neck movements improved when she was distracted. Otherwise, he does not appear to have been impressed by any of the other examination results relevant to other parts of her body which he examined including her lower back.[45]
[45]DCB 35-37
40 In his report dated 9 February 2016, he expressed much the same opinion; that whatever physical impairment and disability the plaintiff had suffered had resolved. He considered that she could return to her pre-injury duties and was fit for the alternative work options identified through a vocational assessment report of an organisation known as Co-Work.[46]
[46]DCB 42-46. The Co-Work report he referred to is at DCB 136-188
41 Mr Karna examined the plaintiff on 12 May 2016. He provided two reports dated 19 May 2016[47] and 13 September 2016.[48] In his first report, he referred to his clinical examination of the plaintiff, concluding that she demonstrated a full range of lateral neck movement, and variability in shoulder movement. He was unable to examine her lower back because of abdominal pain resulting from gynaecological surgery she had undergone in the previous week. It was his impression that there was no objective, reproducible or clinically verifiable physical findings to suggest that she had any ongoing neck or shoulder pathology which was work related. He considered that she may have suffered a soft tissue injury to her neck and shoulder, but considered it was less likely that she had suffered such an injury to her lower back.
[47]DCB 47-54
[48]DCB 55-56
42 Dr Karna considered that the plaintiff had features of a Chronic Pain Syndrome of a fibromyalgia type, which he thought might have been related to psychiatric issues or what he described as “extracurricular” psychiatric factors. He did not consider that she was suffering from any work-related injuries at the time when he examined her,[49] and he repeated that opinion in his second report. In that report, he considered that she was capable of the same work on which Dr Slesenger commented.[50]
[49]DCB 50-52
[50]DCB 55-56
43 Mr Dooley examined the plaintiff on 25 January 2017. I have already dealt with his opinion in some relevant detail. He noted that there were inconsistent signs produced during his clinical examination, and he considered that her disability was greater than one would expect to see from the organic injuries which he diagnosed. Unlike Dr Slesenger and Dr Karna, he considered that she was only fit for work as a school crossing supervisor and not for the other forms of alternative employment referred to by Co-Work.
44 Counsel for the defendant undertook a careful and lengthy analysis of each of the medical reports for the purpose of demonstrating that the plaintiff made complaints of widespread pain in her neck, shoulders, arms, lower back and legs. Additionally, the plaintiff gave varying histories of her capacity to sit, stand and walk. For example a fair amount of time was spent by Counsel for the defendant cross-examining the plaintiff about a diagram which would appear to have been created at the request of the author of the Co-Work report. The plaintiff maintained that the pain she has in her legs is on the inside of her legs, whereas the diagram, which I am satisfied the plaintiff completed, points to the pain being on the outside of her legs.
45 Rather than rehearse each and every aspect of the criticism made by counsel for the defendant of the plaintiff’s case, I think it is sufficient to sum it up this way. Counsel submitted that the plaintiff’s creditworthiness and reliability are very much in issue. I should not accept her evidence because the complaints of pain in her shoulders, arms and legs is difficult to verify based upon the evidence of, for example, Professor Bittar and Mr Dooley, and others who accepted that the plaintiff suffered an injury to her neck and lower back. I should prefer the evidence of Dr Elder, Dr Slesenger, Dr Karna and Mr Dooley whose examinations reveal not only inconsistency in presentation, but widespread complaints of pain that were difficult to associate with any organic pathological process.
Rationalising the medical evidence
46 My overall impression of the plaintiff is that she has presented to her treating medical practitioners and the medico-legal medical practitioners in much the same way. She has complained of pain in her neck, shoulders, arms, lower back and legs, but not always to the same extent or with the same emphasis.
47 However, the difference between the medical evidence relied on by the plaintiff, from those relied on by the defendant, is that the medical evidence the plaintiff relies on comprises examinations by medical practitioners who were probably confronted by the same widespread complaints of pain, but notwithstanding that, they were able to determine that there was an organic injury. The medical evidence relied on by the defendant is characterised by many of the examiners focusing on the plaintiff’s presentation, and what they saw as inconsistencies in the manner in which she presented to them.
48 There is a thread through some of the medical evidence relied on by the defendant, of acceptance that the plaintiff may have suffered an injury to her neck and lower back, because the work she performed suggests that at least soft tissue injuries could be caused by that work. Mr Dooley went further than Dr Elder, Dr Slesenger and Dr Karna in taking into account the way the plaintiff presented on examination and looking beyond that to ask the question - notwithstanding her presentation - has she suffered an injury? Clearly, his answer to that question, is that she has.
49 I have resolved the medical question in this application in the following way: I prefer the evidence of the plaintiff’s treating and medico-legal medical practitioners, with the exception of Dr Saban, that the plaintiff has suffered an aggravation of degenerative changes in her neck and lower back which are organic in nature and which are responsible for the impairment of the function of her spine. Furthermore, I prefer their evidence that the plaintiff is, in effect, incapacitated for her pre-injury work and for alternative suitable employment, including the alternative employment referred to in the report of Co-Work.
50 A finding that the plaintiff satisfies the statutory test relevant to loss of earning capacity permits her to bring a common law claim to recover damages for pain and suffering as well. I do not propose to separately consider the plaintiff’s pain and suffering consequences based upon the reasoning of the Court of Appeal in Advanced Wire and Cable Pty Ltd v Abdulle.[51]
[51][2009] VSCA 170 at paragraphs [62]-[64]
51 Inherent in the conclusion I have reached is my acceptance of the plaintiff’s evidence of the extent to which her capacity to function is impaired by the spinal injury,[52] and the evidence of her husband, Ahmet Efem,[53] and her daughter, Ebru Efem.[54]
[52]Including her affidavits at PCB 9-34b
[53]PCB 35-40
[54]PCB 41-49
Contribution by the Defendant
52 This very issue was dealt with by the Court of Appeal in Barwon Spinners Ltd & Ors v Podolak (“Barwon Spinners”).[55] One of the four workers whose case was considered by the Court of Appeal was a Mrs Gledhill, who suffered an injury which evolved over a period of time before 20 October 1999.[56] The submission relied upon in her case was that it was enough for her to prove that the impairment occurred after 20 October 1999. The Court of Appeal relevantly said:
“Mrs. Gledhill discovered early in the year 2000 that she was suffering from carpal tunnel syndrome, yet she could not bring herself within s.134AB because the evidence led upon her application for leave to commence a proceeding against the employer did not establish how far the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date. Such an enquiry might be thought somewhat artificial: certainly it could be difficult for doctors, particularly those consulted late in the piece, to express a reliable opinion on such an issue. In the foregoing, we have opined that s.134AB(1) requires that the overall injury, when evolving over a period of time spanning the critical date, be distributed, as it were, between employment on or after 20 October 1999 and employment before that date; but even if we were wrong and it was sufficient to satisfy s.134AB(1) that the injury relied upon (in that case, carpal tunnel syndrome) was in part linked to employment on or after 20 October 1999 (albeit that part of it was referable to employment before that date), the plaintiff might well be no better off because, under s.134AB(2) she is permitted to sue only if the injury ‘is a serious injury and arose on or after 20 October 1999’. Either way, then, it may be that a plaintiff must establish the extent to which the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date.”[57]
[55][2005] 14 VR 622
[56]20 October 1999 was a critical date because it was when the common law right to damages was reinstated, that right having been removed as and from 11 November 1997
[57]Barwon Spinners (supra) at paragraph [139]
53 In Grech v Orica Australia Pty Ltd (“Grech”),[58] Ashley JA referred to Barwon Spinners, and observed:
“Most of what the Court said in Barwon Spinners in the passages which I have cited should admit of no confusion. It is for a plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999, and to sufficiently establish what that injury was. Only then will it be possible for a plaintiff to establish that such injury was, in its consequences, serious injury as defined. It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.”[59]
[58](2006) 14 VR 602
[59]Grech (supra) at paragraph [45]
54 A simple summary, which suffices for my purposes, of what Ashley JA was considering is as follows:
“There was certainly medical opinion that the bilateral median nerve compression from which the plaintiff suffered - pertinent symptoms having their onset in 2000 – was caused by repetitive forceful use of his hands in his work. On the evidence, the plaintiff performed such work, though not to the same extent in latter years, from the time of his commencement of employment with the defendant until he went off work in early 2001. The medical evidence, in the event, implicated employment strains before and after 20 October 1999 in the development of the compressive neuropathy.”[60]
[60]Grech (supra) at paragraph [61]
55 What Ashley JA then observed, which is highly relevant to the question I am dealing with here, is as follows:
“But the plaintiff in fact continued to use his hands in stressful fashion at work on and after 20 October 1999. Symptoms of compression developed. The inference is very strong that the plaintiff suffered injury on and after 20 October 1999, involving the further hypertrophy of tissue, and compression of the median nerve on each side sufficient to produce compressive neuropathy. Upon that analysis, the plaintiff sustained injury meeting a condition of compensability in that period. It was productive of consequences. But it does not follow that such consequences – that is, the entirety of the consequences - did not also result from, or at least were not materially contributed to, by injury sustained before 20 October 1999. That is so even though the consequences of injury – which, let it be assumed, met the definition of ‘serious injury’ – did not ensue until after 20 October 1999. Whether there was such a connection would be a question of fact, to be decided on the evidence.”[61]
[61]Grech (supra) at paragraph [64]
56 Applying the same logical approach as Ashley JA, it occurs to me that it is likely that if the plaintiff’s spine had been x-rayed at the time she commenced employment with the defendant, some degenerative changes would have been evident. However, her spine was symptom free until March-April 2011 when she first consulted Dr Saban with neck pain. It was then that he referred her to have an x-ray which demonstrated osteoarthritic changes.
57 With respect to her lower back, it was not until 11 July 2013 that the plaintiff first consulted Dr Saban with persisting lower back pain. She said that the reason she went to Dr Saban on 11 July 2013 was because the pain had worsened over some months.[62]
[62]Transcript 53
58 I think evidence permits me to conclude that the stressful work which the plaintiff undertook both before and after she commenced work with the defendant materially contributed to the spinal injury which was diagnosed after the plaintiff commenced work with the defendant.
59 I think it is probable that had the plaintiff not worked for the defendant, she would not have suffered the injury to her spine, because there would have been an absence of the continued stress that her work placed on her spine. Therefore, I think the inference is very strong that the plaintiff suffered injury to her spine in the period that she worked for the defendant, sufficient to produce significant symptoms of pain resulting in significant disablement, as is obviously the case from the medical evidence, which I accept.
60 I am, therefore satisfied that that the plaintiff suffered a compensable injury in the course of her employment with the defendant and that the impairment of function resulting from the injury meets the statutory test of seriousness.
Conclusion
61 I will, therefore, grant the plaintiff leave to bring a proceeding at common law against the defendant to recover damages for the pain and suffering and loss of earning consequences resulting from the spinal injury.
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