Fielke v Victorian WorkCover Authority
[2015] VCC 420
•13 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-00696
| JULIA FIELKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 February 2015 | |
DATE OF JUDGMENT: | 13 April 2015 | |
CASE MAY BE CITED AS: | Fielke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 420 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – spinal impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering. Application for leave in relation to loss of earning capacity is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A MacNab with Ms Dal Pra | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr M Clarke | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with Ambulance Victoria (“the employer”) on 2 November 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the thoracic spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005)14 VR 622
[2](2006)14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged thirty-nine, having been born in September 1975. After completing Year 12, the plaintiff undertook part of a Bachelor of Commerce degree. She then left university and worked in administration and sales for a number of years.
13 The plaintiff worked at Vodacall in a clerical role doing computer and telephone work. She was the sales manager at All Phone.[3] At Optus, the plaintiff worked in the call centre environment, sitting at a desk, talking on the telephone all day. She also worked for a computer company doing telephone sales before commencing employment with the employer in 2004.
[3]Transcript “T” 21
14 The plaintiff’s work was often heavy and awkward. Prior the said date, she suffered upper back, neck and right shoulder pain as a result of her work.
15 In September 2007, the plaintiff was involved in a high-speed transport accident, resulting in left-sided chest wall pain. After having had three or four weeks off work, by December 2007, the plaintiff had returned to normal duties.
16 On the said date, the plaintiff was lowering a stretcher out of an ambulance to enable a patient to sit on the stretcher. The stretcher failed to engage, and dropped a couple of levels without any warning. The plaintiff was jerked and pulled towards the ground and immediately experienced back and neck pain (“the incident”).
17 The plaintiff continued working over the following two weeks but as time went on, her neck and back symptoms worsened. She attended the St Kilda Road Medical Centre on 19 November 2008, where she saw Dr Oberkaliad, who prescribed Voltaren. He referred her for physiotherapy and also issued a WorkCover Certificate.
18 Towards the end of November 2008, Dr Oberkaliad referred the plaintiff to Dr Wadsley, occupational physician, at the same practice.
19 In about January 2009, the plaintiff managed to return to work on clerical duties for four hours, two days a week, but she struggled. Dr Wadsley subsequently certified her unfit for work and arranged for an MRI scan of her thoracic spine.
20 The plaintiff continued to require pain relief such as Panadeine Forte and Allegron. She had physiotherapy, hydrotherapy and did an exercise program.
21 In about April 2009, the plaintiff managed to return to work again, doing clerical duties on reduced hours, but she had difficulty coping with sitting for lengthy periods. She was subsequently given some work in the equipment store, giving her the ability to vary her posture.
22 The plaintiff continued to suffer from significant flare ups of neck and back pain, and also had problems with reflux and indigestion. Due to ongoing symptoms, Dr Wadsley arranged for a bone scan on 2 October 2009.
23 In late 2009, the plaintiff slowly resumed normal duties as a paramedic on reduced hours.
24 On or about 24 May 2010, the plaintiff suffered a flare up of her back and neck symptoms when assisting an obese patient. As time went on, the plaintiff increasingly struggled, and needed to take extra pain-relief medication. She was not able to work for periods of time due to her symptoms.
25 Dr Wadsley arranged a gastroscopy in September 2010 to investigate the plaintiff’s stomach problems. That month, the plaintiff started work in fleet service as she was not coping with operational duties.
26 In about March 2011, the plaintiff underwent a functional restoration program at Epworth Hospital under the supervision of Dr Lewis. Initially, she found it helped her cope better with her symptoms. It assisted her in managing her pain and taught her how to manage her condition, leading to a return to an administrative role with the employer.[4] Her hours were gradually increased; however, she was prone to suffering flare ups.
[4]T23
27 The plaintiff tried very hard to get back to ambulance duties but later, it became clear that she would not be able to do so, as Dr Wadsley noted on 1 August 2011.[5]
[5]T26
28 In September 2011, the plaintiff was advised by the employer’s rehabilitation coordinator that there were no suitable duties available for her, and she was put off work.
29 When the plaintiff saw Dr Lewis in September 2011, he entertained the thought that having been injured maybe she would not have a long career as a paramedic, noting she primarily wanted to return to that job very strongly. The plaintiff was then considering other alternatives if a return to her old job did not work out.[6]
[6]T25
30 In November 2011, the plaintiff returned to clerical duties, perhaps working four hours a day, four days a week.
31 The plaintiff thought she was coping, as Dr Lewis noted when he saw her in December 2011, but she did not recall being completely symptom free for months; however, her back deteriorated since that time.[7] She did not go back to Dr Lewis because she learnt how to manage in the program.
[7]T28
32 In early 2012, the plaintiff started a six-year part-time Bachelor of Psychology online doing two subjects. She then had a break and did three subjects whilst she was still working.
33 As of April-May 2012, the plaintiff was working four-and-a-half days a week. It was planned to increase to two, six-hour observer shifts and then increase to full-time duties at the end of June 2012.[8]
[8]T32
34 As at 18 April 2012, Dr Wadsley noted that the plaintiff was going fairly well, but on 3 May 2012, her back pain had deteriorated and she had to take the rest of the week off and then resumed working for four hours, four days a week. Dr Wadsley then noted that it was unlikely the plaintiff would return to operational duties.
35 However, even working reduced hours, the plaintiff was unable to cope. She ceased work on or about 8 May 2012 and has not returned to work with the employer since that time.
36 The plaintiff was initially in receipt of weekly payments, then went on a pension after a period of sick leave.[9]
[9]T35
37 The plaintiff was granted an ESSS Disability Pension in November 2012.[10] The pension involves payment of 70 per cent of her salary during the three years she is undertaking her present course, having been certified unfit for her normal duties.[11] There will be an assessment at the end of three years and a decision made as to whether she is permanently disabled. The plaintiff had been told that the temporary pension could not be extended during her Honours course.
[10]T22
[11]T36
38 The plaintiff had not looked for work since she started on the pension because her entitlements would cease if she did so.[12]
[12]T38
39 As of October 2013, the plaintiff continued to suffer from back, neck and right shoulder pain, and also right leg pain at times. She was seeing Dr Wadsley regularly and she was prescribed Tramadol, Panadeine Forte and Endep. She continued physiotherapy and regular attendances with an exercise physiologist.
40 The plaintiff’s ability to undertake activity involving lifting, pushing or pulling was restricted and she struggled to sit, stand or walk for lengthy periods.
41 The plaintiff’s sleep was poor. She had difficulty getting comfortable in bed, was often woken by pain during the night and at times needed to take a sleeping tablet.
42 The plaintiff’s ability to do household tasks and cooking was restricted. She had to pace herself. If she overdid it, she paid for it afterwards.
43 Prior to suffering injury, the plaintiff considered herself to be very active, enjoying hiking, camping, running, gymnasium classes and swimming, and she also enjoyed an active social life. As a result of her symptoms, her enjoyment and ability to participate in those activities had been affected considerably.
44 It devastated the plaintiff that she was no longer able to work as an ambulance officer as she very much enjoyed the work and considered she was very good at it. Prior to the incident, she considered she had an excellent future career path. If she had not hurt herself, the plaintiff would be a paramedic. She loved that job and it was exactly what she wanted to be doing.[13]
[13]T55
45 Before the injury, the plaintiff had applied for an advancement program with a view to a team management position and her hope was to move into that area. She does not believe that she would ever get back into that type of work. That is devastating, because it is exactly what she wanted to be doing with her time. She did not want to leave that job and worked really hard to get back to it.[14]
[14]T55
46 Then, in the second year of her psychology course, the plaintiff had to study in very short blocks or she suffered significantly worse back and neck pain. She then did not believe she would ever be capable of returning to the workforce in a full-time capacity and, at best, was hopeful of part-time work but concerned about her prospects of suitable employment. As a result of suffering injury, she had suffered a very considerable loss of earnings.
47 As at the hearing date, the plaintiff had finished studying the Bachelor of Psychology at Deakin University and was just about to do her exams.[15]
[15]T40
48 The plaintiff continues to suffer from significant pain and restriction of back movement. Her back pain is constant but varies, depending on the level of physical activity. The pain goes into her neck, up her back and scapular area, into her lower back and at times her right buttock.
49 The 2012 exacerbation to the plaintiff’s back symptoms suffered has not fully resolved. Her back is now more irritable and prone to flare ups, and she does not have the same level of strength in her back as was the case in 2012.
50 The plaintiff has not seen any improvement in her back since May 2012, having ceased work. Her pain is variable.[16]
[16]T43
51 The plaintiff indicated the site of her back pain as around the area of her bra strap. The pain can go into her lower back and into her neck. The worst pain is in the upper back.[17]
[17]T52
52 The plaintiff separates tasks like washing and making the bed over the day to reduce the impact. She continues to have difficulty with activities involving bending, lifting, stooping and twisting. She has difficulty with prolonged postures, which cause increased back pain, and she tries to rotate between sitting and standing where possible.
53 The plaintiff’s back pain and restriction restricts her ability to walk for long periods. She has tried to walk for longer as part of an exercise program and now walks twice daily for about 20 minutes.
54 In about early to mid 2014, as part of her undergraduate course, the plaintiff was doing three subjects. Previously, she did subjects online at home, which allowed her to pace herself and change her posture and work when it suited her. In 2014, she began two on-campus subjects, as well as one online subject.
55 The plaintiff had to travel to Deakin University, Box Hill, a journey of 45 to 60 minutes, twice a week. She had three hours of classes one day and two hours on another day. The combination of driving and, in particular, attending the classroom, significantly exacerbated her back symptoms.[18]
[18]T44
56 Previously, when there were flare ups, the plaintiff could rest to alleviate her symptoms. Her study commitments in 2014 did not allow her to rest when she liked, so the flare ups lasted longer.
57 To continue with her studies, the plaintiff has reduced many other activities, such as outings or social events, and tried to rest as much as possible outside her core studies.
58 Having completed her exams, the plaintiff will start the Honours Program two weeks later. Studies in that regard will be on campus one day a week and the plaintiff is concerned about her back, given her previous problems attending campus to undertake studies.[19]
[19]T45
59 If the plaintiff did no further study, she would have the Bachelor of Applied Science in Psychology. If she does another year, then she would obtain a Bachelor of Psychology. The plaintiff agreed that she had multiple high distinctions and would have no difficulty being accepted into the honours course.[20]
[20]T42
60 To qualify as a practising clinical psychologist, the plaintiff has to do a Masters, which includes a clinical component. After completing the Masters, then there is supervision by a qualified psychologist for one or two years.[21] The plaintiff is concerned whether she would be able to practise as a psychologist in a clinical setting, given her problems attending campus. She is not currently undertaking any clinical work as part of her qualifications.
[21]T39
61 Before being a qualified psychologist, the plaintiff could obtain work as a counsellor, which is something that she is certainly interested in, having undertaken a semester course in early 2014.[22]
[22]T40
62 The plaintiff finds sitting at a desk and doing computer studies very uncomfortable and causes her significant back pain. She has tried to create the most ergonomically appropriate environment. The only thing that assists is taking regular breaks. She also tries to split her time between the computer, where she sits, and a laptop, where she stands.
63 When qualified as a psychologist, the plaintiff would like to do some counselling work or maybe some sort of training work, but she has not discussed this it at length with anyone.[23] She would like to work more in a private practice type of setting. She did not believe that there would be much physical component in that role but there would be some prolonged sitting and talking with clients.
[23]T45
64 The plaintiff does not know what would really happen in private practice as she is now a student and has no practical experience. However, she would need to have constant eye contact with a client, not shift around too much, and have an open body posture to make the client feel comfortable.
65 If the plaintiff was able to stand and sit, she believed she could undertake psychologist work if she completed the training. That would be an ideal situation for her. However, she did not believe she had the capacity to work full-time hours based on her past experience with work and the 2012 flare up of symptoms when working and studying.
66 The plaintiff denied her duties with the employer were more onerous than working in private practice. The employer provided a supportive environment and was generous in the modification of duties offered.[24]
[24]T48
67 The plaintiff believes that she would be able to work part time in the future and would be very happy to do so.[25] She could work in employment where she was able to sit and stand performing sedentary duties rather than in her previous role as a paramedic.[26] Her doctor had suggested part-time work, and they had discussed it many times.
[25]T48
[26]T49
68 The plaintiff believes that she could cope working around 15 hours a week.[27] Her issue would be the need to change her posture and problems then maintaining eye contact with a client.[28]
[27]T52
[28]T53
69 In a private practice, the plaintiff may have more control over the clients she sees and what times they are scheduled. These factors could assist her in managing her back symptoms.[29]
[29]T54
70 The plaintiff’s pain ranges from three to four out of ten, maybe up to seven or eight, with a four on a normal day. Sitting for 30 minutes causes a flare up and increases her pain to maybe eight out of ten. She usually has such a flare-up once a week, which can last anywhere from a few hours to a week.[30] She then does stretches and exercises, and uses a massage ball and heat pack.
[30]T54
71 The plaintiff continues to see Dr Wadsley regularly. The plaintiff takes 100-milligram Tramadol slow-release daily; an additional 50-milligram Tramadol for breakthrough pain twice a day; Endep 25-milligrams; Panadeine Forte, Nexium for reflux; Celebrex very rarely when she goes overseas; Temazepam, occasionally, three or four times a month; and Valium, only when travelling.[31]
[31]T18
72 The plaintiff has taken different amounts of medication at different times. She has had the current regime for the last twelve months or so.
73 The plaintiff has recently been referred by her general practitioner for an ultrasound of her groin, which is somehow connected to her back pain.[32]
[32]T29
74 The plaintiff continues to see her physiotherapist weekly to fortnightly. That treatment reduces her pain. She also does Pilates with an exercise physiologist twice a week.
75 The plaintiff continues to have problems sleeping due to pain and restricted movement in her back. It is painful to turn over in bed. At times, she has to get up and do stretches to alleviate her symptoms and at times, take medication.
76 The plaintiff continues to have difficulty with household chores including cleaning, shopping and cooking. She lives in a small flat so she takes the time and paces herself with cleaning. She makes simple meals. The plaintiff paces herself with housework. She has a robot vacuum cleaner.[33]
[33]T49
77 The plaintiff has difficulty driving and, if possible, limits the trips she takes. Longer driving exacerbates her back and if that is planned, she tries to get out of the car and walk around if possible.
78 The plaintiff has not returned to her interests such as running, camping, hiking or swimming.
79 The plaintiff began hiking when she was still a kid as part of the Venturer’s Program. She then went bushwalking on her own for a couple of years. She used to go away one or two nights with a backpack weighing 18 to 20 kilograms, preferring to walk uphill, sleeping on an air mattress in a tent. She recalled camping and hiking twice at Wilson’s Promontory in the twelve months prior to November 2008.[34]
[34]T49
80 The plaintiff would now struggle to carry a backpack and would have difficulty walking long distances, and it would be very difficult to sleep in a tent.
81 The plaintiff feels restricted in the type of activities she can now do. That situation does not make her feel good. She has tried to run, swim and hike but finds those activities too strenuous and they markedly increase her back pain. She has a plan with her physiotherapist to try and get back into swimming.
82 The plaintiff was previously a social person and attended functions, such as lunches with friends. That activity is now far more limited. She struggles to sit and stand for long periods, which can be difficult when she is out. A number of her friends live a distance away, which requires her to drive to see them.
Investigations
83 Dr Oberkaliad organised a CT scan of the plaintiff’s cervical spine on 4 April 2007. This examination was normal, as was an MRI scan of the cervical spine arranged by Dr Wadsley in August 2007.
84 An MRI scan of the right shoulder in 2007 showed minor subdeltoid bursitis and minor tendinosis of the rotator cuff. There was no tear of the cuff.
85 An MRI scan of the thoracic spine was organised by Dr Wadsley in January 2009. It was reported there was multilevel disc degeneration seen from T5-T6 to T10-T11, with small central-right paracentral disc protrusion at T6-T7 without cord compression.
Treaters
86 Dr Wadsley, a qualified occupational physician, at St Kilda Road Medical Centre (“the Medical Centre”), has been the plaintiff’s general practitioner since late 2008, the plaintiff having been referred by Dr Oberkaliad at that Clinic. Dr Wadsley has provided numerous reports and also gave viva voce evidence.
87 Dr Wadsley initially diagnosed a thoracic disc injury and thought MRI-scan findings were consistent with the plaintiff’s clinical findings of pain and tenderness at the level of T5-T7 with pain referred under her left breast. She noted the plaintiff continued to have thoracic spine pain, although later on, she developed some pain in her neck, shoulder and lower back.[35]
[35]T58
88 Since the incident, Dr Wadsley thought the plaintiff had developed pain across her upper back, neck and both shoulders, representing a centrally mediated Chronic Pain Syndrome directly arising from the original disc prolapse.[36] This syndrome was one where, following injury, a sensitivity to pain developed. It was a real physical problem. The nerve pathways are more sensitive to pain and they perceive pain for most of the time. This situation persists after the original injury. Physiotherapy and massage do not remedy the situation, which just persists. Once it has occurred, it is very hard to get rid of.[37]
[36]T59
[37]T60
89 The plaintiff has been very focussed on trying to solve the problem of her pain and has been through pain management. Dr Wadsley has not seen any evidence of the plaintiff exaggerating her symptoms, nor has she found inconsistencies in the plaintiff’s presentation.[38]
[38]T60
90 Dr Wadsley reported in February 2015 that she had looked after the plaintiff for many years, and during that time, attempted to get her back to work on both her pre-injury duties and full-time alternate duties. When it became clear she could not manage full-time work due to constant flare-ups of her symptoms, the plaintiff decided to retrain as a psychologist.
91 In her report of July 2012, Dr Wadsley noted she had certified the plaintiff unfit for all duties from early May 2012. She has attempted to return to work as a paramedic on numerous occasions and each time she increases her activity levels to about half-time hours on sedentary duties, she suffered a major aggravation of her symptoms. Following intensive rehabilitation, she and the plaintiff were attempting to get her back to pre-injury duties after her most recent injury with the support of the defendant.
92 However, in May 2012, it became clear the plaintiff was having a major increase in her pain levels related to simply day-to-day activities at work and at home. Then, tasks like prolonged standing or sitting were increasing the plaintiff’s pain levels and it was not settling. It had now become clear she would never get back to full-time duties as a paramedic.
93 In the last three years whilst studying, Dr Wadsley noted it was clear the plaintiff was very limited in her tolerances for any prolonged activity. In particular, prolonged sitting, such as when she was required to complete assignments or attend lectures, resulted in significant aggravation of her pain. The plaintiff managed sitting activities by varying her posture regularly, but when she had to go to university lectures in April 2014, she had to sit for three hours, and her pain flared for the next two days.
94 Dr Wadsley thought the suggested jobs of receptionist, admissions clerk and general clerk required prolonged sitting with few breaks and few options to vary posture except for some very short periods. Of the other jobs, such as psychologist and social worker, Dr Wadsley noted they often involved some breaks and had more individual control on the workflow, but even then, she thought it unlikely the plaintiff could work for more than 20 hours a week in those jobs and it was more likely that she would only cope for three hours per day.
95 In cross-examination, Dr Wadsley agreed she was originally optimistic that the plaintiff’s condition would resolve the same as any other disc injury within six to eight months.
96 The referral to pain management was soon after the problem of muscle spasm developed. Dr Wadsley was then still hoping that they could settle the plaintiff’s symptoms but she seemed to be getting worse despite other treatment. The plaintiff was also sent for acupuncture.[39]
[39]T64
97 The pain management was a multidisciplinary program including psychological counselling. Dr Wadsley did not think it necessarily true that pain amplification was caused by stress or psychological factors, noting everyone reacts differently.[40]
[40]T65
98 By “Chronic Pain Syndrome”, Dr Wadsley meant the plaintiff was getting pain that was more persistent than she would have expected if it followed the usual course. The plaintiff was starting to get pain increasing with activity. In Dr Wadsley’s view, an effort had to be made to restore the plaintiff’s function so she could get back to work as a paramedic but that had not subsequently worked out.
99 When it was suggested that Dr Lewis did not think there was a correlation between MRI-scan findings and the symptoms, Dr Wadsley could only say the plaintiff had had persistent thoracic spine pain since the original injury. He may have been saying there were no areas of specific tenderness, so that may have resolved, but the plaintiff’s symptoms had been persistent. Dr Wadsley could say that the ongoing symptoms were related to the original process because she had been seeing the plaintiff all the time.[41]
[41]T67
100 Dr Wadsley did not think it worthwhile to send the plaintiff back to Dr Lewis because the functional restoration program was what he had recommended.[42] Dr Wadsley agreed the results after the program were excellent and that Dr Lewis had found improvement on certain occasions;[43] however, improvement from treatment was not always sustained.[44]
[42]T68
[43]T70
[44]T71
101 Dr Wadsley thought that Dr Lewis’ diagnosis of a Myofascial Pain Syndrome suggested that he found some sort of physical abnormality.[45]
[45]T70
102 Dr Wadsley confirmed she expected the plaintiff’s functional capacity would continue to slowly improve. If she became more able to manage her condition, eventually the plaintiff would be fit to work, probably part time, in a position where she could change postures.
103 Dr Wadsley was unable to anticipate the number of hours the plaintiff would be able to work as of November 2014. Dr Wadsley explained that there are pointers to how many hours the plaintiff might be able to work and it depended on the job’s physical requirements, noting the bad exacerbation when the plaintiff was working and studying.[46]
[46]T72
104 When it was suggested it was vastly different being in private practice as a psychologist than having to sit for three hours at a time in a lecture, Dr Wadsley explained most clients do not like the practitioner standing up when speaking to them.
105 The plaintiff would not be able to work constantly but would have to have regular breaks during the day.[47]
[47]T76
106 Dr Wadsley agreed it was very reasonable for her to say she was not able to anticipate the number of hours because the plaintiff had not worked since May 2012.
107 When it was suggested she could not really comment on the plaintiff’s future work capacity because the plaintiff had not worked for so long, Dr Wadsley did not think that was necessarily true because the plaintiff had experienced problems when studying.[48]
[48]T77
108 Dr Wadsley did not expect any improvement in the plaintiff’s condition because she had not improved despite exercise and pain management. She had only improved her management skills. Her condition was still exacerbated if she sat for too long.[49] The plaintiff knew how to manage her condition; it was not that the condition changed. She had gained more control over it.
[49]T78
109 Dr Wadsley agreed she would expect the plaintiff to function at a higher rate in the future as long as she could adapt her day-to-day activities depending on the kind of job she obtained and the employer’s expectations and the degree of flexibility.[50] She confirmed the problems patients would have with a treating psychologist who moved around all the time.
[50]T78
110 Dr Wadsley supposed the fifteen hours’ figure was “a bit rubbery” based on the idea of the plaintiff being able to manipulate her environment. They are the core hours the plaintiff might be able to manage.[51]
[51]T79
111 In re-examination, Dr Wadsley confirmed the plaintiff had just improved, in that she was able to manage better herself.[52] In considering the hours the plaintiff could work, she looked at how the plaintiff had coped with things in the past. She agreed at the start they were trying to get the plaintiff back to work. She had an exacerbation and it was clear she could not work full time. Dr Wadsley confirmed she thought the plaintiff could work fifteen to twenty hours per week.[53]
[52]T79
[53]T80
112 Dr Wadsley thought the plaintiff could work as a psychologist but the length of appointments would really vary and it was hard to break into psychology. It was difficult unless you had an Honours Degree and extra qualifications, and a lot more sitting was required in doing that study. Perhaps the plaintiff doing interviews or online testing would be much better for her so she would have more control over her hours.[54]
[54]T81
113 Dr Wadsley confirmed it was unrealistic for the plaintiff to get back to work in an uncontrolled environment of paramedic work.[55] It was a big decision, because that had always been the plaintiff’s goal and the employer was encouraging her to get back and try.
[55]T82
The Plaintiff’s medico‑legal evidence
114 Dr John McTeigue, surgeon, examined the plaintiff on behalf of QBE in February 2012 for the purposes of an AMA assessment. He noted she cooperated on examination.
115 Dr McTeigue thought, as a result of the incident, it was likely the plaintiff suffered aggravation of pre-existing degenerative changes in the thoracic spine and possible disc protrusion at T6-T7. He noted she also complained of symptoms in the lower lumbar region but the problem had not been investigated.
116 Dr McTeigue thought it likely the symptom pattern would continue in the foreseeable future and that the plaintiff was not able to perform her usual duties as an ambulance officer.
117 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in April 2013. He noted the plaintiff was cooperative, with some difficulty to recall the precise details, but without embellishment.
118 Examination showed a full range of cervical spine movements and essentially, a full range of thoracolumbar spinal movements. There was no tenderness about the thoracic or lumbar spines.
119 Mr Brownbill noted radiological investigations had demonstrated T6-T7 thoracic intervertebral disc protrusion. He considered, on probability, the plaintiff sustained aggravation of thoracic spinal degenerative changes in the incident, with associated intervertebral disc derangement.
120 Mr Brownbill noted the plaintiff now had only intermittent thoracic spinal stiffness and discomfort. He was not able to explain, from a neurosurgical point of view, a basis for the described ongoing neck, shoulder, face and lumbar spine pain with respect to the thoracic injury sustained in the incident.
121 Mr Brownbill thought it appropriate for those pains to be reviewed by an orthopaedic surgeon or rheumatologist and also a pain management specialist.
122 From a neurosurgical point of view, Mr Brownbill thought it would be prudent for the plaintiff to avoid heavy lifting but without any other physical restrictions.
123 Dr Alex Stockman, rheumatologist, examined the plaintiff in October 2013 and reviewed her in December 2014.
124 On review, the plaintiff stated her condition had remained essentially unchanged since the earlier visit, when she complained of constant pain in the right side of her neck, right trapezius muscle, mid thoracic spine and right lower lumbar pain.
125 Prolonged sitting or standing aggravated the thoracic back pain, while the low lumbar pain was aggravated by prolonged walking and sitting. The neck pain was not as severe as the thoracic and lumbar back pain.
126 The plaintiff told Dr Stockman she had reduced the number of course subjects to two, from eight hours to five hours per week online, because of persistent spinal pain. When first examined, she had been studying psychology off campus and was in her second year.
127 Examination findings were essentially unchanged since the previous visit. Movement of the thoracic spine was marginally reduced but associated with pain on rotation and lateral flexion. Movement of the lumbar spine was moderately reduced on forward flexion. There was a full range of cervical spine movement with some discomfort on downward pressure with Dr Stockman’s hands on the plaintiff’s cervical spine.
128 Dr Stockman diagnosed multilevel disc degeneration in the thoracic region associated with small disc protrusion at C6-C7 without forward compression. He thought the pain seemed to be of a mechanical nature, aggravated by prolonged postures, and relieved somewhat when the plaintiff lay down.
129 Dr Stockman considered it was a consequence of the plaintiff’s condition that she was likely to be precluded or restricted in relation to employment that involved activities such as bending, lifting, twisting or stooping, pushing, pulling or lifting, repetitive pushing, pulling or lifting and prolonged sitting or standing.
130 Dr Stockman thought the plaintiff had no capacity to return to her pre-injury employment but had the capacity to undertake suitable employment up to 30 hours a week.
131 Dr Stockman also thought, as a consequence of her injury, the plaintiff was likely to be precluded or restricted in relation to social, domestic and recreational activity. He considered she was likely to have a long-term disability of moderate degree. However, he expected that with self management, particularly exercises, self-pacing analgesia and anti-inflammatory medications, the plaintiff would be able to re-join the workforce and participate in restricted social and recreational activities.
132 Dr Stockman’s recommendation was to focus to self management to become less reliant on treatment administered by the exercise physiologist or the physiotherapist in the future.
133 Mr Roy Carey, orthopaedic surgeon, examined the plaintiff in January 2014.
134 The plaintiff told him of constant pain on the right side of the interscapular region and on the right side of the lower back. There was intermittent discomfort radiating down the back of the right leg to the knee.
135 Mr Carey noted the plaintiff was doing an online part-time course in psychology and her aim was to go into counselling or social work.
136 Mr Carey noted the plaintiff moved about in her chair during the history and got out of the chair. Her history was given directly and without catastrophization.
137 On examination, there was a little tenderness over the spine to the right and some restriction of cervical spine movements. Flexion to below the knees aggravated right-sided back pain. Neurological examination was absolutely normal.
138 Mr Carey thought the plaintiff had a diffuse spinal Pain Syndrome. Her clinical findings were those of mild symptomatic cervical spondylosis. He thought her constant thoracic discomfort was associated with symptomatic multilevel disc degeneration with Scheuermannoid features radiologically, and her clinical findings suggested mild symptomatic lumbar spondylosis.
139 Mr Carey could not detect any functional component or psychological reaction to the plaintiff’s physical condition.
140 Commenting that he was an orthopaedic surgeon, not an occupational physician, Mr Carey thought an evaluation of work capacity was more appropriate to be undertaken in that field.
141 Mr Carey was happy for the plaintiff to do as she wished within the limits of any discomfort, and he would anticipate she would return to the workforce probably in a part-time role.
142 Dr Slesenger, occupational physician, examined the plaintiff in January 2015 when he noted the plaintiff interacted well and gave a clear and consistent account of her injuries.
143 In Dr Slesenger’s view, the plaintiff sustained an aggravation of her degenerative disc disease of the thoracic spine and subsequently, developed a Chronic Pain Disorder. He thought there was evidence of a mental health disorder but that was short lived. She also had gastrointestinal symptoms as a result of her medication use.
144 Dr Slesenger noted the plaintiff had severe restrictions in her capacity to perform manual handling tasks, and a limited capacity to perform bending and twisting. The plaintiff advised she had difficulty with prolonged postures.
145 Based on the history, examination and review of the documentation, Dr Slesenger was satisfied that the plaintiff would be restricted in her capacity to perform duties including bending, twisting and stooping, lifting greater than 3 kilograms and sitting, walking or standing for more than 20 minutes.
146 Dr Slesenger thought the plaintiff would not be able to return to her pre-injury duties as a paramedic. He noted she had very limited occupational experience. She had some experience working in the retail sector prior to starting work with the employer. Effectively, nearly all the plaintiff’s professional life, she had worked as a paramedic. He considered she was not able to attend employment in a reliable or predictable manner in a clerical role, noting her qualifications were focussed on those of a paramedic.
147 Dr Slesenger thought, taking into account the plaintiff’s qualifications, the extent of her incapacity documented and reported in her narrative and observed on clinical examination, her age and her limited experience, the plaintiff would not be able to find suitable alternative employment indefinitely.
148 Whilst Dr Slesenger noted the plaintiff was undergoing retraining, she was having difficulty with the retraining course. She had limited functional tolerances and he thought there was a strong possibility she would not be able to find employment in her chosen field.
149 Dr Slesenger also noted the plaintiff was engaging in regular sporting activities in the gymnasium and had not been able to return to those. She was severely limited in her capacity to travel and had few social outlets. He thought that situation would continue.
150 Dr Slesenger considered the plaintiff would require further treatment under her general practitioner in terms of medications and certification and he recommended she continue seeing her physiotherapist. He was concerned as to the benefits of passive physiotherapy and advised that the plaintiff transition to a self-managed exercise program with regular review under a physiotherapist.
151 Dr Jager, psychiatrist, examined the plaintiff on behalf of QBE in February 2012. He found there was no mental disorder and considered the plaintiff’s emotional distress to be within the normal range of human experience. He thought her symptoms did not constitute a mental disorder.
Vocational evidence
152 Dianne Forster, human relations consultant with Flexi Personnel, provided a reported in January 2015.
153 Based on a medical report from the general practitioner and Dr Stockman, Ms Forster thought the plaintiff was suffering from significant physical restrictions which prevented her from returning to her pre-injury role or to the workforce in an unrestricted manual capacity. She noted it was stated the plaintiff’s injuries would have a permanent impact on heavy domestic, social and recreational activities.
154 Based on the plaintiff’s medical reports, Ms Forster thought the plaintiff suffered from significant physical restrictions which would prevent her returning to her pre-injury role or to the workforce in an unrestricted manual capacity.
155 In considering all the negative factors together, from a recruitment perspective, Ms Forster believed the plaintiff would struggle to find an employer willing to offer her suitable employment which would be economically self-sustaining on a full or even part-time basis. She did not believe the plaintiff had any work-ready transferrable skills that she was currently physically capable of performing to an adequate industry standard which would be considered acceptable in the workplace, particularly when compared to her co-workers, regardless of the industry.
156 Ms Forster thought the plaintiff would need to be successfully retrained to perform alternative sedentary employment and the plaintiff had acknowledged that by undertaking her current course, noting the plaintiff had advised she was only capable of two hours of study per day due to pain.
157 Ms Forster noted that when the plaintiff completed her course she would still have no current experience and would likely have to compete with more experienced candidates. Therefore, with her physical restrictions and recurring pain, she thought the plaintiff would have difficulty obtaining employment in the open labour market.
158 Ms Forster provided the following wage rates were also provided:
Occupation Wage Rates Youth worker, experienced and unqualified $156.40 for 8 hours
$234.60 for 12 hours
$293.25 for 15 hoursInexperienced counsellor $20.60 gross an hour
Inexperienced first-year psychologist $20.60 gross an hour
159 Ms Forster also provided the following gross average weekly earnings for the following occupations:
· Receptionist, admissions clerk and general clerk – $681.40; and
· Retail assistant – $720.70.
The Defendant’s medical evidence
160 Dr Daniel Lewis, rheumatologist, first examined the plaintiff in November 2010 on referral from Dr Wadsley.
161 On examination, there was a full range of spinal movement without any pain, and there were no specific areas of tenderness.
162 Dr Lewis reported the plaintiff presented with a history of soft tissue injury affecting the thoracic spine. She now had amplified symptoms which were more stiffness and discomfort than pain. From his perspective, she appeared to be functioning well. She seemed to be coping with physiotherapy and exercise physiology.
163 Dr Lewis considered the 2009 MRI scan demonstrated a central disc prolapse at T6-T7 and that the plaintiff’s symptoms, however, did not match that anatomical abnormality.
164 Dr Lewis could identify no specific ongoing pathology, and noted the plaintiff’s symptoms did not fit within the fibromyalgia category. However, he had a strong impression that there was symptom amplification on the basis of anxiety.
165 Dr Lewis then did not consider the plaintiff had the physical capacity to resume paramedic work. However, with appropriate strengthening, the physical aspects of her work as a paramedic could be done safely. On the basis of the initial presentation, he was a little uncertain as to why the plaintiff had not progressed, and he could not determine any physical issues causing this.
166 In June 2011, Dr Lewis advised Dr Wadsley the plaintiff had completed the program at Epworth Hospital and she was extremely pleased with her progress. Essentially, she had no pain and only very occasionally had some sensations in her upper back. She was sleeping well and had normal energy levels. She was managing administrative tasks at work, and when she got some stiffness, she could easily resolve that with some stretching. She had some help at home with heavy cleaning and had meals delivered, but she was now ready to take over most activities. She was not on any medication. He suggested review in three months.
167 As of September 2011, Dr Lewis noted the plaintiff had a period of three weeks without pain and a flare-up after carrying a bag too far. Overall, her muscle endurance was better. As far as work was concerned, the plaintiff felt she was unlikely to return to normal full-time duties within the timeframe her employer was considering and her preference was to find alternative work that was less physically demanding, which Dr Lewis noted may require her returning to study. He considered the plaintiff had a work capacity.
168 The plaintiff moved well on examination, with a good range of spinal movement. There were no tender points around the shoulder or spine and neurological examination was normal.
169 Dr Lewis then thought that everything was in place to assist the plaintiff to maximise her rate of recovery. He noted she had not achieved a sustained return to work over the last three years and he thought her decision to find alternative work and move on in a different direction was the right one.
170 In December 2011, Dr Lewis diagnosed Myofascial Pain Syndrome. He noted the plaintiff had been very well and she had not had pain for months. There was some tightness and pain after a car accident the previous week, which had settled.
171 Dr Lewis noted the plaintiff went back to work six weeks earlier, working three days, four hours a day, and had now increased to six hours, working in administration. She continued with a gymnasium program, Pilates, hydrotherapy and swimming. She was taking only Nexium. On examination, she had a full range of motion with no signs of restriction.
172 As of December 2011, Dr Lewis thought the plaintiff had made a substantial recovery and he had not scheduled a further review. He then thought she was substantially recovered, and her condition was still improving and had stabilised. There was no indication her condition would be ongoing.
173 Dr Lewis considered at the last assessment, the plaintiff had not reached a physical capacity that would allow her to undertake pre-injury work. He thought she was capable of full-time work of a sedentary and administrative nature. He thought the prognosis was for a full recovery with no work restrictions. He noted the history indicated from the time of injury until the time of her improvement, the plaintiff had been significantly restricted in many aspects of her social and domestic activities.
174 The plaintiff was seen by Mr Jonathan Hooper, orthopaedic surgeon, in March 2009. He diagnosed problems that were presumably soft tissue strain in the structure of her spine. He then offered a guarded prognosis and thought her symptoms may persist for some time.
175 Dr Yong, specialist occupational physician, saw the plaintiff in September 2009. He diagnosed a thoracic discal injury.
176 Dr Yong then thought the plaintiff had a work capacity, although she was not fit for pre-injury work due to the requirements of her role as a paramedic. He thought she had a current capacity to participate in a graduated return to work program and was fit for alternative duties as a paramedic with various restrictions. Her initial working hours as at October 2009 would be four-hour shifts, three days a week, increasing over seven weeks to five days at full hours on restricted duties. After a return to pre-injury working hours, the introduction of pre-injury paramedic shifts could occur, and then she would be able to work full duties within a two to three-month period.
177 Mr Schutz, surgeon, examined the plaintiff in November 2010 and June 2011.
178 Following the first examination, Mr Schutz thought, given her history to date, and noting the disc pathology in the mid thoracic region shown on the January 2009 MRI, it would be preferable for the plaintiff not to return to her full pre-injury ambulance duties for the present, with a review in another two to three months. He thought basic lifting and strenuous activity restrictions were appropriate without the need for specific hours or breaks.
179 When seen again in mid-2011, the plaintiff was doing a functional rehabilitation program. Mr Schutz diagnosed the site of indicated discomfort between T6 and T7, but there was no current discomfort. He thought there were no current symptoms in relation to the thoracic spine. He thought it was possible the incident caused a small disc prolapse at T6-T7.
180 Dr Bowles, occupational physician, examined the plaintiff in October 2011. The plaintiff then presented as a pleasant young woman who showed no sign of restriction or impairment on formal examination. He thought her complaints had presently resolved and she was fit to go back to suitable duties on 31 August 2011, with a view to upgrading those over the next two months.
181 Dr Bowles thought there appeared to be a thoracic muscle strain in the course of employment. He considered the plaintiff could do alternate duties on a part time basis as a starting point and that could be upgraded to full-time work over a four-week period, and trial back to normal duties after that timeframe.
182 Following examination in October 2011, Dr Jager, psychiatrist, thought the plaintiff did not have a psychiatric injury and her level of emotional distress was within the normal range of human experience and did not constitute a mental disorder of any kind.
183 In his supplementary report of June 2014, Mr Carey could not see why the plaintiff should not be able to undertake the type of work as a social worker, receptionist, admissions clerk, counsellor, general clerk or psychologist, noting that she was doing study and intended to go into counselling or social work.
184 Mr Carey encouraged the plaintiff to continue with her course with a view to a return to work as described.
185 Dr Roy Karna, rheumatologist, first examined the plaintiff in January 2014. She then described neck pain, intermittent and more right sided, and right medial scapular pain, which could be intense and associated with muscle tightness and stiffness.
186 Dr Karna’s clinical impression was the plaintiff initially sustained almost certainly a soft tissue axial injury, predominantly involving the thoracic spine, but also possibly the cervical spine. He thought the soft tissue injury had long since healed and the plaintiff had since developed a Pain Syndrome, which was multifactorial in origin and almost certainly did involve some psychosomatic psychological factors, and equally, there may have been some element of initial deconditioning.
187 Dr Karna thought that condition was fundamentally reversible and he did not believe there was any permanent impairment or disability likely in an otherwise fit young lady with no other significant comorbidities. He did not believe, after the soft tissue injury, there was any structural bony injury in the axial spine. He thought there was a Pain Syndrome that had subsequently developed, with muscle tightness and stiffness which was in part psychogenically driven and may relate to some element of deconditioning. He thought there was certainly no conscious malingering or feigning of injury.
188 Dr Karna considered the plaintiff had a capacity to work and believed she was capable of sedentary clerical-based duties on a full-time basis, but should be allowed to alter her posture as required. He believed that she could work with commonsense workplace restrictions in terms of avoiding excessive heavy lifting and or bending.
189 In his supplementary report of June 2014, Dr Karna noted that in the absence of structural musculoskeletal damage and the plaintiff’s relatively normal radiology, there was no contraindication to her returning to gainful work, noting its therapeutic value.
190 Dr Karna suggested that full-time work, arguably initiated in a graduated manner, in any capacity where she could alter her posture as required and in a supportive working environment, would be reasonable for the plaintiff. He noted her tertiary study of psychology and that she had the intellectual capacity to carry out work as a social worker, receptionist, admissions clerk, counsellor, general clerk or psychologist and, providing she had the necessary prerequisites to do those forms of work, she could alter her posture as required. He thought those duties were reasonable for her and, allowing for an element of work deconditioning, a graduated return to work would be preferable.
191 Dr Karna considered the only retraining or rehabilitation the plaintiff would require would be in terms of assessing the requisite skills to perform those tasks rather than any physical training, as she had been doing exercises and Pilates.
192 On re-examination in December 2014, Dr Karna noted, since last seen, the plaintiff had not worked and she had commenced a psychology course at Deakin University. She told him of difficulties with driving and postural demands, and the worsening of her condition.
193 Dr Karna’s impression remained unchanged. He noted that the persistence and proliferation of symptoms in terms of site, the soft tissue tenderness and the absence of any clinically reproducible objective physical findings of structural musculoskeletal pathology all pointed towards the plaintiff having developed a Chronic Pain Syndrome – driven by psychogenic stressors and she required psychological review to that effect.
194 Based on the plaintiff’s physical symptoms and the notion she did not have a structural musculoskeletal injury, Dr Karna believed she was capable of pre‑injury duties. He did not believe she required any occupational restrictions. He noted the plaintiff was young, had no other medical comorbidities, and on structural musculoskeletal grounds, did not have a defined injury and, as such, there was no contraindication to her returning to work in his opinion, noting she was then studying.
195 In a further supplementary report of early 2015, Dr Karna confirmed the plaintiff was quite capable of working as a social worker, receptionist, admissions clerk, counsellor, general clerk and psychologist, in general, providing she had the appropriate training. He did not believe there were any contraindications to her driving on structural musculoskeletal grounds. Thus, in a physical capacity, the clinical psychologist position was indeed reasonable for her on structural musculoskeletal grounds, noting the work had flexible hours and no undue physical demands.
Overview
196 The occurrence of the incident and compensable injury is not in dispute.
197 The defendant accepted liability for the payment of weekly payments and medical expenses. Further, by letter dated 3 May 2012, QBE accepted liability in relation to a claim under s98C for a thoracic spine injury and a gastric condition.
198 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[56] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[56][2006] VSCA 171
199 No such explanation has been forthcoming in the present case.
200 The consensus of medical opinion is that the plaintiff suffered an aggravation of degenerative changes in the thoracic spine in the incident.
201 The defence of this application was twofold: firstly, that the initial thoracic injury developed into a Chronic Pain Syndrome properly categorised under paragraph (c). Alternatively, if that was not the case and the plaintiff had an organic injury, any impairment in terms of pain and suffering and economic loss was not serious.[57]
[57]T88, T91
202 In Meadows v Lichmore Pty Ltd,[58] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[58][2013] VSCA 201 at paragraphs [21]-[22]
203 Counsel for the defendant relied principally upon treating rheumatologist, Dr Lewis, who thought the plaintiff’s condition was initially a soft tissue injury and that the prolapse identified on MRI was not productive of any symptoms and there was no identifiable ongoing pathology.[59]
[59]T89
204 Further, Dr Lewis considered the plaintiff had made a substantial recovery when he last saw her at the end of 2011. He thought she was then capable of full-time work in a sedentary administrative nature.
205 However, this opinion predates the significant aggravation in May 2012 described by Dr Wadsley, who has confirmed the plaintiff’s ongoing problems and need for treatment since that time and the fact that she considers the plaintiff’s condition to be organically based and she did not believe it to be psychologically based.[60]
[60]T61
206 The defendant also relied on the medico-legal opinion of rheumatologist, Dr Karna, who saw the plaintiff twice. He thought she had developed a Chronic Pain Syndrome which was psychogenically driven and that she was quite capable of work in a range of jobs on musculoskeletal grounds.[61]
[61]T90
207 However, Dr Karna is alone in this diagnosis.
208 Whilst in 2014, Mr Carey thought the plaintiff had a diffuse spinal Pain Syndrome, he considered her clinical findings were those of mild symptomatic cervical spondylosis. He could not detect any functional component or psychological reaction to her physical condition.
209 Although in 2013, Mr Brownbill did not think there was much wrong with the plaintiff, diagnosing an aggravation of degenerative changes, and finding no neurosurgical reason to explain her pain, he did not note any nonorganic factors in her presentation. [62]
[62]T91
210 Dr Slesenger thought the plaintiff sustained an aggravation of her degenerative disc disease of the thoracic spine and subsequently, developed a Chronic Pain Disorder. Although he thought there was evidence of a mental health disorder, that was short-lived.
211 Earlier examiners, Dr Bowles, Mr Schutz and Dr Yong, all considered the plaintiff had suffered a thoracic discal injury.[63] In 2014, Dr Stockman came to a similar conclusion, diagnosing multilevel disc degeneration in the thoracic region associated with small disc protrusion at T6-T7 without forward compression, with pain of a mechanical nature.
[63]T91
212 Further, in February 2012, Dr Jager, psychiatrist, found there was no mental disorder.
213 Given the plaintiff’s ongoing physical complaints and the lack of findings of a non-organic nature, I am satisfied that her present spinal condition is substantially organically based.
Credit
214 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[64]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[64](2010) 31 VR 1 at paragraph [12]
215 In my view, the plaintiff was a very credible witness who had made valiant attempts to return to her work as a paramedic, and continues to display motivation, studying for her new career path as a psychologist.[65]
[65]T100
216 There was no evidence that the plaintiff exaggerated her symptoms on examination. Further, whilst surveillance was undertaken, no film was shown of the plaintiff’s activities.[66]
[66]T88
Consequences
217 The second issue in this case is one of range. Whilst counsel for the defendant conceded there was no doubt the plaintiff’s impairment had some consequences, and no doubt they were significant, when one looked at what the plaintiff had retained, any impairment as at the date of hearing was not serious.[67]
[67]T92
218 The plaintiff is a relatively young woman aged thirty-nine.
219 In Stijepic v One Force Group Aust Pty Ltd,[68] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[68][2009] VSCA 181 at paragraph [43]
220 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
Pain
221 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[69] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[69](Supra) at paragraph [11]
222 I accept that since the incident and more particularly since the 2012 flare up, the plaintiff has suffered ongoing back pain, more severe in her upper back, which increases with activity and is subject to flare ups.
223 The plaintiff has difficulty with prolonged postures and activities involving bending, twisting and stooping. Her ability to undertake domestic tasks is limited.
224 The plaintiff has difficulty sleeping due to her back pain and at times needs medication to assist her.
225 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[70]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[70]Supra
Treatment
226 The plaintiff continues under the care of her general practitioner, Dr Wadsley, whom she sees regularly. She also requires ongoing physiotherapy and management by an exercise physiologist.
227 The plaintiff was referred to rheumatologist, Dr Lewis, and underwent a pain management program in 2011.
228 No further treatment has been suggested.
229 The plaintiff continues to take a significant amount of strong painkilling medication in an attempt to control her spinal pain.
230 As Dodds-Streeton JA noted in Kelso v Tatiara Meat Company Pty Ltd,[71] where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[71][2007] VSCA 267 at paragraph [199]
Sporting and domestic activities
231 Prior to the incident, the plaintiff was an active young woman who enjoyed a range of sporting activities. As a result of her back injury, she has not returned to her interests of running, camping, hiking and swimming.
232 Further, the plaintiff’s social life is now far more limited and she has difficulty driving for extended periods.
Work
233 It is not disputed that as a result of her back condition, the plaintiff is no longer able to pursue her chosen career as a paramedic – a role she loved and tried very hard to resume following injury.
234 In my view, the pain and suffering consequences of the plaintiff’s spinal impairment meet the statutory definition of “serious”.
235 Further, as the plaintiff’s condition has persisted for in excess of six years without significant improvement, and she continues to receive treatment, I am satisfied her impairment is permanent.[72]
[72]T100
236 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
237 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
238 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
239 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
240 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
241 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[73]
[73]Barwon Spinners Pty Ltd & Ors (supra)
242 The parties agreed on a “without injury” figure based on gross annual earnings of $95,000 ($1,826.92 per week), 60 per cent of which is $1,096 per week.[74]
[74]T87, the 2010 Claim Form
243 The parties further agreed that the appropriate hourly wage rate for a psychologist is $35.79 based on ABS figures.[75]
[75]T104
244 Dr Slesenger is the only medical practitioner who considered that the plaintiff is totally incapacitated for employment.[76] Whilst he noted the plaintiff was studying psychology, he did not comment in his 2014 report upon her ability to work in that field.
[76]T99, T109
245 Vocational assessor, Ms Forster, shared Dr Slesenger’s view. She also thought the plaintiff would have difficulty obtaining work when qualified due to her physical restrictions and recurring pain.
246 Most medical examiners believe the plaintiff has at least partial capacity for suitable employment. Dr Wadsley suggested the plaintiff could work in a range of light sedentary roles, including as a psychologist for 15, maybe 20 hours per week.
247 Noting the plaintiff was uncertain what she would do when she graduated, Dr Stockman thought she had a capacity for suitable employment of up to 30 hours per week. Working 30 hours at $35.80 an hour, the plaintiff would earn $1,074 per week, marginally suffering the requisite loss.
248 In his January 2014 report, Mr Carey stated the plaintiff had a capacity for work within the limits of any discomfort and probably part time. In his June 2014 report, he noted the plaintiff would be able to do the suggested jobs of social worker, receptionist, admission clerk, counsellor, general clerk and psychologist. He did not impose any restrictions on the hours the plaintiff could work.
249 Dr Karna thought the plaintiff had a full-time capacity for the suggested sedentary jobs if she had training and could alter her posture with flexible hours and there were no undue physical demands. He did not specifically address work in the future as a qualified psychologist.
250 Whilst she is still studying, the plaintiff concedes she has a work capacity but does not believe she would have the capacity to work in excess 15 hours per week. She has not tried to work since starting her course in 2012, as she would lose her pension entitlement if she did so.
251 Counsel for the plaintiff submitted that the plaintiff would not get to the stage of being fully qualified as a psychologist given her difficulties with attendance on campus and her need for special consideration during the undergraduate course.[77]
[77]T102
252 However, to date, the plaintiff has had an excellent academic record, completing the Bachelor degree, albeit with special consideration at times. She would have no difficulty getting into Honours, as she conceded. One would expect this to also be the case with the Master’s degree.
253 In these circumstances, I am not satisfied that the plaintiff will be unable to complete further study and clinical work.
254 Whilst she has treated the plaintiff since 2008, seeing her on a frequent basis,[78] Dr Wadsley conceded her estimate of 15 to 20 hours per week was “rubbery”.
[78]T106
255 This assessment was based largely on one exacerbation when the plaintiff attended a three-hour lecture,[79] a situation vastly different to what the plaintiff would encounter in private practice as a psychologist, where she could alter her posture and regulate her hours.[80]
[79]T72
[80]T96
256 I accept that Dr Wadsley did not make any concessions as to the light nature of work as a psychologist and that she really did not address the fact that a treating consultant psychologist could get up and walk around during a consultation. She did not say the plaintiff could not work in that role because of her physical restrictions; rather, the problem would be a client’s reaction to a treating psychologist who was not in the one position throughout the consultation.[81]
[81]T96
257 Further, I accept that Dr Wadsley clearly stated she expected future improvement in the plaintiff’s functional capacity, including her ability to function in the workplace.[82]
[82]T97
258 The onus is on the plaintiff to identify the requisite economic loss into the foreseeable future. In my view, this onus has not been discharged.
259 There is a whole new career path ahead for the plaintiff when she completes her study, whether as a counsellor, trained psychologist or online interviewer, roles she has not yet tried.[83]
[83]T95
260 In the future, I accept the landscape will change and the plaintiff’s ability to earn income will significantly change, both because of her additional qualifications and the functional improvement anticipated by Dr Wadsley.[84]
[84]T97
261 At this relatively early stage in the plaintiff’s study, having completed the first Bachelor degree and a year away from the second by way of Honors and then Masters, I am not satisfied the plaintiff will not finish the course, given her high academic success. I am not satisfied she would be unable to undertake supervision required before she could go into private practice.
262 I am not satisfied, having completed the necessary qualifications, the plaintiff in private practice would be unable to work in excess of 31 hours per week in what is the lightest of jobs where she could control her hours and client load and move around when needed.
263 I am not satisfied the plaintiff, on a permanent basis, will not have the capacity to earn in excess of $1,096 per week.
264 Accordingly, in terms of earning capacity, the plaintiff has not discharged the requisite onus and her application in this regard is dismissed.[85]
[85]T93
265 Leave is granted to bring proceedings for damages for pain and suffering only.
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