Eldridge v Hachette Australia Pty Ltd
[2016] VCC 751
•6 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02797
| JANET ELDRIDGE | Plaintiff |
| v | |
| HACHETTE AUSTRALIA PTY LTD | Defendant |
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JUDGE: | Her Honour Judge Tsalamandris | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2016 | |
DATE OF JUDGMENT: | 6 June 2016 | |
CASE MAY BE CITED AS: | Eldridge v Hachette Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 751 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Aggravation of lower back injury; pain and suffering, loss of earning capacity
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertson v Skorsis [2000] VSCA 51; Barwon Spinners Pty Ltd v Podolak [2005] 14 VR 622; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC | Zaparas Lawyers |
| with Mr S J A Jurica | ||
| For the Defendant | Mr J Angenent | Thomson Geer |
HER HONOUR:
Preliminary
1 The plaintiff commenced employment with the defendant in about 2006 as a sales and account manager. In this role, the plaintiff was responsible for selling children’s books to bookshops and she travelled to shops, carting suitcases full of sample books. The plaintiff claims she suffered injury to her lower back as a consequence of undertaking those duties.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the ACA”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity.
3 The plaintiff claims she suffered injury to her lower back, with referred pain into her left leg. The body function said to be impaired is the lumbar spine.[1]
[1]Plaintiff’s Court Book (“PCB”) 6
4 Although this serious injury application was originally lodged in respect of a psychiatric injury under s134AB(37)(c), this was abandoned at the hearing.[2] No psychiatric evidence was relied upon in respect of the sub-section (a) application for the lower back injury.
[2]Transcript (“T”) 1, Line(s) (“L”) 13-17
5 Mr Richard W McGarvie QC with Mr Stephen J A Jurica appeared for the plaintiff and Mr Johannes Angenent appeared for the defendant.
6Only the plaintiff was called to give evidence and she was cross-examined. Also in evidence was an affidavit from the plaintiff’s former manager, Christopher Raine, together with medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.[3]
[3]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
Relevant background
7 The plaintiff was born in Melbourne and is 48 years old. She lives with her partner Matt and has no children.
8 The plaintiff completed her secondary school education. After leaving school, the plaintiff worked as a machine operator in a plastic moulding factory for approximately 12 months, before commencing with Kingfisher Books as a sales representative. She worked there for approximately five years, and then worked as a sales assistant at Mary Martin Bookshop for about three years. The plaintiff then worked part-time as a barmaid, and also as a gardener. In 1994, she commenced employment with Taltrade Sales Pty Ltd as a sales representative.
9 The plaintiff said that she had some lower back pain in her mid-20s, but did not seek medical treatment for it.[4] In April 1996, she had further back pain and sought treatment from her mother’s physiotherapist.[5]
[4]T24, L16-19
[5]PCB 11
10 On 18 September 1996, the plaintiff experienced further symptoms of back pain, after packing up books at a trade fair in Sydney. She had a few days off work. She saw her local doctor, Dr Pun. She was given a light duties certificate, but as there were no light duties available, she did normal duties. She lodged a workers compensation claim at that time.
11 The plaintiff said she may have taken Panadol at this time.[6] She obtained physiotherapy treatment for a number of sessions, initially from Mr Liljedahl and later from Ms Bev Dalziel. She said that Ms Dalziel provided her with a lumbar support pillow for her car, and a back brace. Ms Dalziel then recommended she undertake dance exercise, which she commenced in approximately May 1997.
[6]T27, L19-20
12 About this time, the plaintiff left her employment with Taltrade, in part because of her lower back pain.[7] She said that her employment with Taltrade involved a lot of heavy lifting and that she was keen to move into a lighter job in retail.[8] Soon after, the plaintiff commenced work in the book department of a store named Supply and Demands Homewares.
[7]T29, L2-3
[8]T29, L9-15
13 In September 1998, the plaintiff was examined by medico-legal physiotherapist, Mr Ron Munro, as part of her workers compensation claim. He noted that she had experienced improvement in her symptoms over the last 12 months, with significant improvement in the last six months. However, she still complained of “intermittent severe left-sided low back pain”[9] and he noted, overall “she is only slightly greater than 50% better.”[10]
[9]Defendant’s Court Book (“DCB”) 24
[10]DCB 24
14 At that time, she was unable to return to activities she previously enjoyed, including rollerblading, tennis and snow skiing.
15 The plaintiff then obtained a sales representative position with Transworld, which later became Random House Publishers.[11] On 29 March 2000, the plaintiff suffered further back pain with discomfort in her left buttock and upper left leg, when, in the course of that employment, she slipped and fell on some stairs while carrying a case of books. The plaintiff sought treatment from physiotherapist, Nicholas Allen. He noted that she had experienced a flare-up of pain following excessive lifting, sitting and carrying of heavy loads.[12]
[11]PCB 12
[12]DCB 30
16 The plaintiff later saw physiotherapist, Darren Stojanovic, at Dynamic Stability Physiotherapy.[13] She undertook regular Pilates classes at his clinic, and felt it improved her core strength and mobility.
[13]PCB 12
17 In September 2000, the plaintiff commenced employment as a sales and account manager with Watts Publishing Australia and New Zealand Pty Ltd.
18 In 2003, the plaintiff suffered further back pain. On this occasion she attended the Vermont Medical Centre, where the doctor arranged for a CT scan to be performed. This CT scan, taken on 17 December 2003, showed disc degenerative disease, broad based disc bulges at L4-L5 and L5-S1, with no neural impingement.[14]
[14]DCB 13
19 The plaintiff said she would suffer occasional flare-ups of lower back pain, but she would have extended periods of time where she was pain-free.[15] Besides the brief use of Panadol in 1996, she did not take any medication for her lower back pain.[16] She regularly obtained myotherapy treatment and undertook Pilates.[17] She sometimes obtained physiotherapy treatment.[18] She continued working full-time, performing normal duties. She returned to recreational activities including rollerblading, skateboarding, snow skiing, water skiing, tennis, golf and dirt bike riding. She also enjoyed going to watch live bands perform.[19]
[15]T37, L16-20
[16]T27, L14-20
[17]PCB 13
[18]PCB 92-94
[19]PCB 21
The plaintiff’s employment with the defendant
20 The defendant took over Watts Publishing in 2006, at which time the plaintiff formally commenced employment with the defendant. She continued in the same role as sales and account manager, although her workload increased. She was responsible for selling sample books to her customers, who were mostly based in the City of Melbourne. She said this involved placing the book samples into wheeled suitcases, which she would take in and out of her car. She would then pull the suitcases to the retail outlet. She had originally sworn that the suitcases weighed about 20 kg, and that she would often take two suitcases with her to appointments. In her more recent affidavit, she said the suitcases usually weighed up to 40 kg each. She usually had two large suitcases with her, as well as two small suitcases which weighed up to about 15 kg each.
21 Her former general manager, Mr Christopher Raine, provided an affidavit in which he confirmed the substantial number of books she was required to carry in multiple suitcases. He estimated that she would have to lift them in and out of her car, up to five to six times per day. He considered the work quite strenuous. He recalled the plaintiff complaining to him in late 2007, that she was having difficulties with the heavy weight of the suitcases, and that it was causing her problems with her back. He further recalled, that from 2007 until 2010, the plaintiff would have “up-and-down” periods of back pain, from which he felt she was not improving.
22 Mr Raine said that in late 2010, the plaintiff complained that her back pain was getting worse because of the heavy suitcases. He then restructured her workload to reduce the physical demands of her job. From 2011 to 2013, he gave the plaintiff days off work as needed because of her back pain. He said she made up the hours at other times.
Injury and its consequences
23 The plaintiff claims that her lower back injury was caused by the nature of her duties with the defendant and, in particular, the lifting and carting of heavy suitcases, over the course of her employment.
24 The plaintiff’s regular general practitioner is Dr John Arnold, from the Hennessy Clinic in St. Kilda. He had treated her since 2 January 2002, but his first recorded note of lower back pain was on 13 January 2009. At that time, he took a history of her lower back pain, noting that she initially suffered pain in 1996 when lifting heavy boxes at a trade fair.
25 Dr Arnold stated that:
“in addition to her lifting injury at the trade fair in Sydney, her subsequent occupation… involved the daily lifting of heavy book sample cases and driving long distances, as well as interstate travel in her role as a sales representative. Repeated aggravations of her original injury through her work duties have caused symptoms to increase to incapacitating levels.”[20]
[20]PCB 56
26 Dr Arnold arranged for a CT scan to be taken on 28 January 2009, which was reported as normal.[21]
[21]DCB 14
27 The plaintiff next attended Dr Arnold in relation to lower back pain on 28 January 2011. On this occasion, he arranged a further CT scan, which again reported as normal.[22]
[22]DCB 15
28 In July 2011, the plaintiff was referred to sports physician, Dr Peter Baquie. He noted that she had previously hurt herself at work carrying books, initially in 1997 and then again three years later. He then noted she had eight years where her condition had improved.[23] However, in the last 12 months her pain had altered, and there was more pain into her left leg, with an altered sensation in the left foot. He noted that she had been diligent in her physiotherapy and Pilates rehabilitation. He recommended a facet joint injection.[24]
[23]PCB 67
[24]PCB 64-65
29 The plaintiff received the facet joint injection in about August 2011, but complained that it worsened her symptoms.[25]
[25]PCB 65
30 Dr Baquie considered the plaintiff was suffering a functional diagnosis of subacute back strain, superimposed on longer standing back strain. He considered the pathoanatomic basis was likely to be two-level lumbar discoapathy and left sided lower lumbar spine facet joint arthrosis.[26] He felt he was unable to comment on the relationship between her current condition and her employment with the defendant, as he did not have details of the more recent episodes of lower back pain.
[26]PCB 68
31 About this time, Dr Arnold prescribed the plaintiff Panadeine Forte.
32 The plaintiff was then referred to pain management specialist, Dr David Vivian. He obtained a history that she had initially injured her back in 1996 and then again in 1999. He noted that she had exercised and then recovered reasonably well. He obtained a history that 18 months ago, for no apparent reason, she developed left-sided low buttock pain, with numbness in the left foot.[27] Dr Vivian prescribed Lyrica, and then later OxyContin, Temazepam and Arcoxia.[28]
[27]PCB 70
[28]PCB 77
33 Dr Vivien reviewed the plaintiff on several occasions, and last saw her on 14 August 2013. At that time, he diagnosed neuropathic type low back pain, and referred leg pain. As he did not obtain a history of her work duties, he made no comment as to whether her condition was related to her employment with the defendant.
34 The plaintiff was next reviewed by neurosurgeon, Mr Bhadu Kavar, whom she consulted in March 2012. He noted that she had initially sustained an injury to her back over 15 years ago whilst lifting books at work. He noted she had exacerbations since that time. He noted that 12 years ago she had suffered left paraspinal pain, but that in the last 18 months it had become severe left gluteal pain, with pain and altered sensation in her left foot. On examination, he found altered sensation over the left anterior thigh and the lateral foot. He recommended a repeat MRI scan.
35 This further MRI scan was taken on 21 March 2012. It demonstrated posterior annular disruption at L4-5 and L5-S1 with moderate disc dislocation and mild bulging.[29] There was no evidence of compressive pathology, justifying surgical intervention.[30]
36 In a report dated 9 July 2004, Mr Kavar stated that:
“The process of heavy lifting, bending twisting can certainly precipitate back pain associated with leg pain and repeat injuries can certainly aggravate an underlying condition. From my perspective, her history is consistent with her injury. The dilemma of course is trying to find a surgically treatable cause and certainly none has been found.”[31]
[29]PCB 121.1
[30]PCB 88
[31]PCB 91
37 Mr Kavar diagnosed low back pain and leg pain, spondylotic in nature, with no neural compressive pathology. He said that:
“her pain phenomenon is likely to be generated from the soft tissue structures for which there is certainly no easy solution.”
38 The plaintiff also consulted orthopaedic surgeon, Mr Roy Carey, in May 2013. He did not recommend surgery either.[32]
[32]PCB 15
39 Throughout this period, the plaintiff continued to work full-time. She said she struggled to keep up with her customer appointments, and would often have to work at night time or weekends to keep up with her workload.[33]
[33]T85, L21-31
40 The plaintiff was made redundant in September 2013, along with the defendant’s entire sales team. Her manager, Mr Raine, recalled that 12 to 18 months prior to her redundancy, he had stopped her travelling to Sydney and reduced her work load.[34] He considered that the plaintiff seemed, at times, “spaced out with the pain medication”.[35] He felt that she needed to sort out the problems she was having with her lower back injury, or he would need to lay her off.
[34]PCB 47
[35]PCB 47
41 At the time she was made redundant, the plaintiff had already planned to travel interstate on a holiday. Before leaving for this, she intended to take up a part-time job she had been offered with Dymocks. Whilst away, the plaintiff attempted to stand up in a café and suffered an exacerbation of lower back pain. She felt this pain was so bad that she could not work at all, and, upon returning to Melbourne, declined the offer of employment.[36]
[36]T43, L10-25
42 The plaintiff attempted a return to work in 2014, doing telephone sales for a schoolbook company. She obtained this work through a former customer. She said she did a few hours a day, every day, for a week. She struggled in this work. She felt that she was too disorganised and was unable to sell the products. After a week she stopped this work. She has not worked since, nor has she applied for any jobs.
43 The plaintiff was referred to rheumatologist, Associate Professor Peter Ryan, whom she consulted in May 2014. He considered that the plaintiff had “a major problem” but as her complaints were non-specific, he could not identify the source of her pain.[37]
[37]PCB 107
44 In March 2015, the plaintiff consulted a neurologist, Associate Professor Owen White. He considered her back pain appeared to be musculoskeletal, rather than neurological, but he was uncertain as to its cause.[38]
[38]PCB 115
45 The plaintiff was then referred to neurosurgeon, Professor Gavin Davis. He diagnosed entrapment of the lateral cutaneous nerve in her left thigh and recommended surgery to decompress the nerve. This surgery was performed on 7 April 2015, and provided the plaintiff with a significant improvement in the spasms she had experienced in her left thigh. The condition was not claimed as being work-related, and was simply a complication on top of the plaintiff’s lower back injury with referred left leg pain.
46 On 22 June 2015, Dr Arnold arranged for a further MRI scan. It demonstrated the following:
“At L4/L5 a large postero-central annular fissure, and small, posterior disc protrusion, causing indentation of the anterior thecal sac, encroaching on the caudal aspect of right neural foramen and causing mild left foraminal stenosis;
At L5/S1 there is a small postero-central annular fissure and small posterior disc protrusion, indenting on the anterior thecal sac and encroaching on the caudal aspect of both neural foramen.
Multilevel mild facet joint degenerative changes are seen in the lumbar spine.”[39]
[39]PCB 123.2
47 Dr Arnold referred the plaintiff to a pain management course at Caulfield Rehabilitation Hospital in February 2016. It was an eight week course.[40] She continues to have hydrotherapy there twice a week. She also has physiotherapy twice a week.[41]
[40]PCB 24
[41]PCB 25
48 Dr Arnold continues to see the plaintiff on a regular basis. He currently prescribes Endone, at 5 mg, twice per day and OxyContin, at 15 mg, twice per day. Her OxyContin dose increased in February 2016, from a previous level of 10 mg, twice per day.[42]
[42]T23, L9-17
49 The plaintiff claims she suffers constant lower back pain. She said she frequently gets a stabbing pain during the day, and this is associated with pain into her left buttock and left leg. She uses a heat pack to alleviate her back pain and can have up to three hot showers a day, as that also helps with her pain.
50 The plaintiff claims that as a consequence of her lower back injury, she has stopped doing many of the recreational activities she previously enjoyed. She is no longer able to go rollerblading, skateboarding, snow skiing, water skiing, and dirt bike riding and she does not play tennis or golf. Until recently she was still able to cycle, but following a recent flare-up she has not done this for several months.
51 She said her sleep is interfered with.[43]
[43]PCB 19
52 She is limited in her capacity to sit, and suffers increased pain after sitting for 10 to 15 minutes. She avoids long distance driving.
53 She is also limited in her capacity to stand, and she uses a walking stick.[44]
[44]PCB 26
54 She takes Oxycontin, Endone and Lyrica on a daily basis. At times she also takes Arcoxia.[45] She feels the medication affects her concentration.
[45]PCB 26
55 I accept the plaintiff as a reliable witness. She gave straightforward answers, without exaggeration. There was no attack on the plaintiff’s credit, and Mr Angenent’s cross-examination of her was limited to her past history of back problems, and her capacity for suitable employment. I have no hesitation in accepting her evidence in its entirety.
Medico-legal evidence
56 The plaintiff’s solicitors arranged for her to be examined by vascular physician, Dr Peter Blomberry, in November 2015. He obtained the history of the initial back pain in 1996, and the flare-up in 2000. He then noted that from 2001 to 2005, she had no major problems with her back. She suffered increased pain after carrying heavy boxes or going on long drives. By 2011 she began to develop increasing back pain, as well as left hip and left leg pain, with some numbness in the left foot after long walks.
57 Dr Blomberry diagnosed the plaintiff as suffering previously asymptomatic degenerative changes in the spine, which had been rendered symptomatic, especially after the 2000 and 2011 work incidents.[46] He also believed there was a component of a pain syndrome or central sensitisation. He explained this can occur when there is a sensitisation of the pain nerve pathways, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.[47]
[46]PCB 127
[47]PCB 137
58 The plaintiff’s solicitors also arranged for her to be examined by neurosurgeon, Professor Richard Bittar, in December 2015. He obtained the history of the initial back pain at work in 1996, and the further incident in 2000. He noted that she made a good recovery and that thereafter, she only experienced intermittent lower back and left leg pain.[48]
[48]PCB 131
59 Professor Bittar noted that the plaintiff started working with the defendant in 2000.[49] He then referred to the company expanding in 2005 or 2006, at which time she was required to carry more books.[50] Professor Bittar noted that at that time, her episodes of lower back pain, radiating into her left leg, became more frequent and severe.
[49]PCB 129 - This year is incorrect. The plaintiff started with the defendant’s subsidiary company in 2000
[50]PCB 130 - 2006 was the year when the plaintiff commenced with the defendant.
60 Professor Bittar recorded that her duties included interstate travel, and travelling around Melbourne with suitcases of books, weighing up to 40 kg each. He then noted that her condition deteriorated significantly around 2010, during the course of heavy lifting.
61 Professor Bittar diagnosed aggravation of lumbar spondylosis, with her lumbar facet joints being the most likely source of her pain. In his opinion, the plaintiff’s employment with the defendant was the major contributing factor to her ongoing pain and disability.[51]
[51]PCB 132
62 In relation to capacity for work, Professor Bittar was of the opinion that she was permanently incapacitated for her pre-injury duties, and that she did not have any realistic capacity for suitable employment.[52]
[52]PCB 133
63 The plaintiff also relied upon a report from sports physician, Dr Timothy Wood, who examined her for the defendant in February 2013. He obtained the history of the initial back pain in 1996 and the flare-up in 2000. He noted that it took a couple of years for the pain to settle, but that she then had a “reasonable stretch”[53] up until 2010.
[53]PCB 123.4
64 Dr Wood was of the opinion the plaintiff suffered chronic non-specific somatic low back pain. He considered the most likely source of her pain was one or both discs, which were abnormal on the MRI. Dr Wood considered the original injury was caused by work. He felt the exacerbation in 2010 occurred without reason. From his report, it is apparent he obtained some detail from the plaintiff as to the nature of her work duties, including visiting clients 50 per cent of the time. However, he does not refer to her lifting and carting suitcases during the course of her employment.
65 The defendant arranged for the plaintiff to be examined by occupational and musculoskeletal specialist, Mr Michael Troy, in February 2015. Mr Troy obtained a history of the initial back pain in 1996. He then obtained a history of her subsequent employment, but there is no reference to the nature of her duties with the defendant, in particular the lifting and carting of suitcases filled with books. Instead, Mr Troy stated that she was doing “light administrative work.”[54] He diagnosed her as suffering degenerative discs in her lumbar spine, but was of the opinion that the symptoms in her lower back were not affected by her employment. He was of the opinion that she had a current work capacity.
[54]DCB 35
66 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Rodney Simm, in February 2016. Mr Simm obtained a history of the initial back pain in 1996 and the treatment she obtained afterwards. He then noted she suffered further pain in 2000, and noted that “from then on she had pain radiating from the lower back into the buttock and left thigh.”[55] He stated she had some difficulty coping with her work duties but remained at work. For five years, he noted that she had few problems with her back, and that she was able to ski and play golf. He noted that in 2006 she started to notice recurrent lumbar back pain and from that time her job involved more bending and lifting. He noted that from 2010 she developed pain radiating down the left foot and numbness on the other side of her foot.
[55]DCB 45
67 Mr Simm was of the opinion that:
“The nature of her work over the years could certainly have initiated and exacerbated symptoms from underlying lumbar disc degeneration, but one would not expect the work to have altered the pathology of the lumbar disc degeneration, which is constitutional degenerative pathology.”[56]
[56]DCB 50
68 He was of the opinion that exacerbations of pain associated with her work would be temporary, as “she recovered from those work-related exacerbations of pain”.[57]
[57]DCB 51
69 Mr Simm considered the plaintiff would be capable of suitable employment, but would need some flexibility with sitting and standing, and in the handling of light objects.[58]
[58]DCB 52
Causation
70To succeed in her claim, the plaintiff must establish that her employment with the defendant is a cause of her lower back injury.[59]
[59]Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141, [8]-[11]
71Mr McGarvie submitted that the plaintiff had suffered a new injury as a consequence of her employment with the defendant. Mr Angenent submitted it was an aggravation case, and that the plaintiff’s lower back condition is a continuation of her pre-existing degenerative condition.
72I do not accept Mr McGarvie’s submission that this was a new injury. There is no evidence of any new pathology arising after she commenced her employment with the defendant in 2006.
73I accept the plaintiff suffers aggravation of a degenerative condition in her spine.
74Professor Bittar also considered the source of pain to be the facet joints. Dr Blomberry raised the possibility of an organic-based pain syndrome. These additional comments do not detract from the overwhelming medical opinion that it is a degenerative condition, without neural compromise.
75The plaintiff’s degenerative condition first became symptomatic in 1996. She had occasional flare-ups of lower back pain after that, including in 2000 and 2003. However, the plaintiff also had extensive periods in which she was pain-free.[60]
[60]T37, L16-20
76I accept that when she commenced her employment with the defendant, her degenerative lumbar spine was predominantly, but not entirely asymptomatic.
77I accept her workload subsequently increased when she commenced with the defendant. Her duties included the frequent lifting of heavy suitcases filled with books, which she then carted to retailers. These work duties were confirmed by Mr Raine, who further confirmed the plaintiff’s complaints in late 2010 that she believed her back was getting worse from lifting the heavy suitcases.
78Many of the doctors did not obtain details of the frequent and heavy lifting the plaintiff was required to do in her employment with the defendant. This included Dr Baquie, Dr Vivian, Associate Professor White, Dr Wood, and Mr Troy. I am therefore not assisted by their opinions on the matter of causation.
79Of those doctors who obtained the history of heavy lifting, most related the aggravation to her employment with the defendant. This included Dr Arnold, Mr Kavar, Dr Blomberry and Professor Bittar.
80Dr Ryan obtained the history of lifting heavy books, but as he could not diagnose the course of her pain, he did not comment on the issue of causation.
81Mr Simm stated that any aggravation by work had only been temporary, as the plaintiff had recovered from the work-related exacerbations of pain. This opinion ignores the plaintiff’s consistent complaints of constant pain since about late 2010.
82 I find it improbable, that if the plaintiff’s work caused the onset of constant lower back pain and the symptoms have persisted ever since, that work is no longer a cause of that pain. Mr Simm is a respectable orthopaedic surgeon. However, on the issue of causation, I prefer the opinions Dr Arnold, Mr Kavar, Dr Blomberry and Professor Bittar.
Aggravation
83 In accepting that the plaintiff’s injury is an aggravation of a pre-existing lower back condition, and that it was caused by her employment with the defendant, it is necessary for me to compare the plaintiff’s pre-existing condition prior to 2006, with the aggravated state. I must consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti,[61]
[61][1994] 1 VR 436
84Chernov JA, in R J Gilbertson v Skorsis,[62] summarises the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”
[62][2000] VSCA 51 at [40]
85 Prior to 2006, her degenerative condition was occasionally symptomatic. She required regular myotherapy, Pilates and some physiotherapy, but she did not take medication. She was able to undertake very active recreational pursuits. She was working full-time, doing normal duties. Her impairment at that time was mild.
86 Since late 2010, the plaintiff has suffered constant lower back and left leg pain. She takes opioid-based medication on a daily basis and this affects her concentration. She is no longer able to undertake the active recreational pursuits she previously enjoyed.
87 The plaintiff remained in full-time employment until September 2013. Leading up to that time, Mr Raine had reduced her duties, to minimise the strain on her lower back. He was of the opinion that it was only a matter of time before she would have ceased work because of her injuries. The plaintiff agreed that her work situation “couldn’t go on”.[63] I accept both the plaintiff and Mr Raine’s evidence on this. If not for the redundancy, I consider it probable that because of her constant lower back pain, the plaintiff would have ceased her work with the defendant by late 2013.
[63]T84, L18-31, T85, L1-2
88 When she was asked to compare her situation now, with her pain between 1996 and 1998, she said it is now “extraordinary – it’s off the scale.”[64]
[64]T88, L20-27
Loss of earning capacity
89 To succeed in her application, the plaintiff has the onus of satisfying me that as at the date of hearing, as a consequence of the aggravation, she has sustained a loss of earning capacity of 40 per cent or more; and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In assessing this, I must consider what the plaintiff is capable of earning in suitable employment.
90 The definition of suitable employment is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[65]
[65]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 at [25] and [28]
91 In undertaking this task, I must compare what the plaintiff is capable of earning in suitable employment, with her pre-injury earning capacity. To determine her pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had she not suffered the injury:
“a. the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
b. the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[66]
[66]s134AB(38)(f)
92 The plaintiff’s gross income from the defendant was as follows:
2010/11: $105,499
2011/12: $106,559[67]
[67]Exhibit C – “Summary of Earnings”
93 The income received in the following year included a long service leave payout, so Mr McGarvie submitted the figure from the 2011/12 financial year most fairly reflected her pre- injury earning capacity. I agree with that, as it was the year closest in time to when she stopped working.
94 Accepting this sum of $106,559 as her pre-injury earning capacity, the average weekly wage is therefore $2,049.21 gross per week. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $1,229.52 per week, and that such a restriction on her earning capacity will be permanent.
95 The plaintiff was examined by two vocational assessors. The plaintiff’s solicitors arranged for her to be interviewed by Mr Bill Radley in March 2016. The defendant had the plaintiff interviewed by Ms Katrina Jakovljevic in April 2016. I gain little assistance from either of these reports. It is a matter of medical opinion as to the restrictions which should be imposed on the plaintiff, as a consequence of her aggravated lower back injury.
96 Further, the report of Ms Jakovljevic contained errors as to the nature of the plaintiff’s duties with the defendant.[68] I also considered her unrealistic in proposing the plaintiff perform jobs such as personal assistant and word processing operator, when she had no secretarial or word processing experience. The only relevant job appeared to be sales representatives work, which the plaintiff had done for over 20 years. The issue for me to decide is whether the plaintiff has the capacity to do such work now.
[68]T68, L23-28
97 In this regard, I am most assisted by the medical opinions of Dr Arnold, Dr Blomberry and Professor Bittar.
98 In a report dated 12 May 2015, Dr Arnold responded to the jobs proposed by Ms Jakovljevic. He stated that until the plaintiff:
“is able to find modalities to manage her pain and is able to stop her narcotics and pain modifiers, I would find it impossible for her to return to work in the roles that have been suggested. I also find it very improbable that any employer would employ her.”[69]
[69]PCB 63.1
99 Professor Bittar was of the opinion that given the nature and severity of her lumbar spine condition, she did not have any realistic capacity for suitable employment.[70]
[70]PCB 133
100 Dr Blombery was of the opinion that she was not fit for her pre-injury employment, but could do part-time alternate duties, a few hours a week, provided it did not involve any significant lifting, bending or prolonged driving. He considered she would be limited in terms of the hours that she could do, given the significant amount of opioid analgesics she took.[71] I note her OxyContin dose has further increased since the time he saw her in November 2015.
[71]PCB 128
101 Mr Simm did not comment on the impact her opioid medication would have upon her ability to return to suitable employment. Nor did Mr Troy, who stated in his report that she would be fit to go back to modified duties.
102 I accept the plaintiff’s evidence that when she attempted to undertake book sales work in 2014, she found it difficult to concentrate. She feels her reading and writing skills are adversely affected by her medication and pain levels.[72]
[72]T67, L3-5
103 Her opioid medication has been further increased since that time. I consider this a significant impediment in her ability to obtain suitable employment.
104 She has not applied for any jobs. The plaintiff said she would love to work again, but she said that at the moment:
“I’m not able to tell you which days I can walk or which days I can think or both.”[73]
[73]T82, L8-12
105 I accept the plaintiff’s pain levels would make it difficult for her to be a reliable employee.
106 I consider the most realistic, medical opinion on work capacity is that of Dr Blombery. If it is that she was able to obtain employment for a few hours a week, with the restrictions he identified, then she would still readily suffer a loss of earnings of at least 40 per cent.
107 I must also be satisfied that this 40 per cent loss will be permanent. The plaintiff has recently increased her morphine based medication. She did not obtain benefit from the pain management course. There is no proposed treatment that offers her any prospect of improvement.
108 In these circumstances, I am satisfied that into the future, she will continue to suffer the requisite loss of 40 per cent.
109 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[74] Given my finding that the plaintiff suffers a total loss of earning capacity, this pecuniary disadvantage is so great that I consider that her loss of earning capacity can be described as very considerable.
[74]s134AB(38)(c)
Conclusion
110 As the plaintiff has satisfied me that she suffers a serious injury in respect of loss of earning capacity, it is not necessary for me to consider separately her pain and suffering consequences.[75]
[75]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
111 I am satisfied that the plaintiff should be granted leave to commence proceedings for pain and suffering and pecuniary loss damages.
112 I shall make the consequent orders.
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