Fiteni v Victorian WorkCover Authority
[2022] VCC 152
•21 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05329
| MIRA FITENI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 February 2022 (via Zoom) | |
DATE OF JUDGMENT: | 21 February 2022 | |
CASE MAY BE CITED AS: | Fiteni v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 152 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – causation – loss of income earning capacity - where no evidence of suitable role – where pre-injury income reduced due to parental duties
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141; Giankos v SPC Armona Operations Ltd (2011) 34 VR 120; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr G Smith | Zaparas Lawyers |
| For the Defendant | Mr N Dunstan | IDP Lawyers |
HER HONOUR:
1Mrs Fiteni is a 43-year-old mother of three children. At the end of Year 11, she left school and started an apprenticeship as a hairdresser. She worked as a hairdresser for the next 20 years.
2For about seven-and-a-half of those years, Mrs Fiteni worked at a salon called “Hair Trivia”. When Mrs Fiteni first started working at Hair Trivia in February 2008, it was owned by Belinda Buntevski – the employer in this case. Mrs Fiteni worked for Ms Buntevski for five-and-a-half years. Then, Ms Buntevski’s uncle and his business partner took over Hair Trivia. Mrs Fiteni worked for them for about two years. Finally, in October 2015, Hair Trivia was sold and Mrs Fiteni was made redundant.
3Mrs Fiteni says that she found her duties at Hair Trivia particularly demanding – that she was made to work uncomfortably fast, without enough breaks and with substandard equipment. Ms Buntevski had a preferred technique for blow waving that she required Mrs Fiteni to use. Mrs Fiteni said that this technique required a lot of force to pull and tug on the brushes.
4Mrs Fiteni said she started to experience lower back and neck pain shortly after she started working at Hair Trivia. She says that she continued to work through the pain, as she was concerned that she would lose her job if she made a WorkCover claim. She says the pain worsened over the years, and by the time she was made redundant it was a relief to stop working. Mrs Fiteni says that her pain did not improve, even when she stopped working.
5In March 2018, Mrs Fiteni underwent major spinal surgery: an L5-S1 decompression and fusion rhizolysis performed by neurosurgeon Associate Professor Augusto Gonzalvo.
6Mrs Fiteni says that this surgery was a failure. It did nothing to reduce her pain. Mrs Fiteni says that to this day she suffers ongoing pain in her lower back, upper back, neck, jaw, hips, groin and legs (particularly her left leg). She says:
“I feel worn down by the energy it takes to do even simple tasks such as making my children’s beds.
…
… my pain affects my entire life and limits most physical activities in some way.” [1]
[1] First affidavit paragraphs [24] and [26], Plaintiff’s Court Book (“PCB”) 17
7Mrs Fiteni says that she is incapable of working because of her ongoing daily pain. She claims that her work at Hair Trivia, during the period it was owned by Ms Buntevski, was a cause of this pain. In this proceeding, she claims to have suffered a serious injury as a result of her employment with Ms Buntevski, with respect to both pain and suffering and loss of income earning capacity consequences.
8The Victorian WorkCover Authority (“VWA”) denies that Mrs Fiteni has suffered a serious injury as a result of her employment with Ms Buntevski. VWA relies principally upon two expert witnesses, Dr Graeme Brazenor and Dr Michael Lucas.
9Dr Brazenor is a neurosurgeon. He interviewed Mrs Fiteni once by video link and conducted an extensive review of medical reports, radiological records and clinical notes. He provided three expert reports.
10Dr Brazenor says that he could not perceive a mechanism for “structural injury” arising out of Mrs Fiteni’s duties as a hairdresser.[2] He says that Mrs Fiteni’s duties at Hair Trivia might, at most, have caused a temporary aggravation of symptoms and that Mrs Fiteni’s employment had not caused any structural injury. He says that there was “no evidence for employment contributing in any manner or degree to Ms Fiteni’s permanent symptoms or disability”.[3]
[2] PCB 91; see also PCB 114
[3] PCB 116
11Dr Brazenor says that Mrs Fiteni’s allegation that her symptoms had worsened since the surgery was “not consistent with the radiological record”[4] and in making these allegations she was “largely perpetrating a ruse”,[5] which he assumed she would continue “until some factor convinces her to relinquish it”.[6] He says that Mrs Fiteni is fit to return to work, including as a hairdresser. The only limitation he placed on Mrs Fiteni’s employment was that it would be “unwise” for her to seek employment in positions where she has to recurrently bend at the waist, recurrently access low levels or perform vigorous push/pull movements.[7]
[4] Defendant’s Court Book (“DCB) 114
[5] DCB 115
[6] DCB 117
[7] DCB 115
12Dr Lucas is a consultant occupational physician. He assessed Mrs Fiteni once by video link. He says that Mrs Fiteni currently suffers from “mechanical back discomfort”.[8] He says that the symptoms she experienced while working at Hair Trivia “may reasonably be considered as an exacerbation of an underlying condition”.[9] However, he says that:
“I am unable to exclude the likelihood of Ms Fiteni experiencing her symptom concerns, spine disease progression and considered requirement for surgery, irrespective of her employment choices and participations.”[10]
and that:
“… Current symptoms may reasonably be viewed as attributable to current mechanical, postural and environmental factors in association with indicated spine degenerative changes and post fusion status”.[11]
[8] DCB 151
[9] DCB 152
[10] DCB 153
[11] DCB 153
13Dr Lucas’s language is a little obscure. However, as I understand it, his view is that Mrs Fiteni’s employment at Hair Trivia did not significantly contribute to Mrs Fiteni’s current symptoms. Dr Lucas also says that he would not restrict Mrs Fiteni from maintaining a “usual home or workplace presence” (that is, performing normal home and work duties).[12]
[12] DCB 156
14This case raises two key issues.[13] Firstly, causation: was there the required causal link between Mrs Fiteni’s employment by Ms Buntevski between February 2008 and October 2013 and her ongoing neck and back pain? Secondly, loss of income earning capacity: did Mrs Fiteni suffer a current and permanent loss of income earning capacity of 40 per cent or more, as calculated in accordance with s134AB38(e)(i) and s134AB38(e)(ii) of the Accident Compensation Act 1985 (“the Act”).
[13]The seriousness of the pain and suffering consequences of Mrs Fiteni’s spinal impairment was also in issue. However, counsel for the VWA conceded that, if causation was established, it would be difficult to contest a finding that Mrs Fiteni was seriously injured with respect to the pain and suffering consequences of her spinal impairment. I agree. I accept that if causation is established, Mrs Fiteni has established a serious injury with respect to pain and suffering consequences.
Causation
The reliability of Mrs Fiteni’s evidence
15It was a little surprising, given the VWA’s reliance upon the opinion of Dr Brazenor, that there was no sustained attack on Mrs Fiteni’s credit in cross-examination. It was not put to Mrs Fiteni that she was “largely perpetrating a ruse”.[14] She was asked some questions in relation to a few minutes of surveillance in cross-examination. Otherwise, there was no cross-examination on the truthfulness of Mrs Fiteni’s description of her symptoms. Rather, the focus of the cross-examination was on whether Mrs Fiteni had previously reported neck and back pain, arising out of her employment at Hair Trivia, to her doctors.
[14] DCB 115
16I found Mrs Fiteni to be a straightforward witness who was doing her best to tell the truth. She was plainly symptom focused. This is not unusual. However, she was careful to explain, when giving her evidence, that it was not that she could not perform activities such as bending down to the ground, but rather that she avoided bending down, because bending intensified her pain.
17The surveillance footage put to Mrs Fiteni during cross-examination showed her bending down to pick up a small white dog after it jumped suddenly out of the car. In those few moments, her dog was unrestrained and near a road. Many owners of small dogs would instinctively reach down to pick up their dog in such circumstances, even at the risk of pain.
18The surveillance footage also showed Mrs Fiteni driving to a hairdressing supplies store and then, after she returned home, greeting a visitor. Mrs Fiteni says that she attended the hairdressing supplies store for personal supplies for her and her family and that the visitor was her neighbour. This footage seemed entirely unremarkable.
19There was nothing in the surveillance footage which caused me to doubt the reliability of Mrs Fiteni’s self-reported symptoms.
20Mrs Fiteni did have some difficulty recalling the dates of events of the last 14 years with precision. For example, it was only upon being provided with her clinical records by her lawyers that she appears to have specifically recalled radiology and reports of neck and back pain dating back to 2008.[15] However, once her memory was refreshed, Mrs Fiteni was unshaken in her evidence that she had reported her back and neck pain to her general practitioners on many occasions since shortly after starting her employment at Hair Trivia in 2008. This is corroborated by:
[15]Compare further affidavit of the plaintiff sworn 30 November 2021, paragraphs [9]-[12] with Workers Injury Claim Form dated 3 February 2017, PCB 85.
(a) her attendance at Northend Medical Clinic on 26 June 2008. Although the clinical notes refer to a “sore [right] leg”,[16] she was referred for an x-ray of her lumbar spine, which showed discogenic degenerative changes at L5-S1 with Grade 1 spondylolisthesis.[17] The indication for the x-ray is recorded as being “[l]ow back aches”;[18]
(b) her attendance at Northend Medical Centre on 17 April 2009, complaining of “sore neck/sore back”;[19]
(c) her attendance at Northend Medical centre on 20 April 2009, complaining of “neck & lower back pain”;[20]
(d) her CT scan of the cervical spine on 27 April 2009. The indication for the CT scan is recorded as being “[n]eck pain”;[21]
(e) her attendance at Northend Medical Centre on 22 June 2009. The handwritten clinical notes include a reference to her “neck”, “styling & cutting” and “using a stress ball”.[22] The typewritten notes include a recommendation to take Voltaren;[23]
(f) her attendance at Northend Medical Centre on 20 January 2010. She was again advised to take Voltaren;[24]
(g) her attendance at the Epping Plaza Medical & Dental Centre on 17 July 2013, complaining of an injured lower back with a past history of L4-5 disc prolapse;[25]
(h) her CT scan of her lower back on 18 July 2013 which notes “[a]cute on chronic back pain”;[26]
(i) her attendance at Epping Plaza Medical & Dental Centre on 23 August 2013 complaining of “chronic lbp” which was “interfering with job, hairdresser;[27] and
(j) her husband’s evidence that she started complaining of pain approximately 12 years ago.[28]
[16] Defendant’s Supplementary Court Book (“DSCB”) 78, see also DSCB 51
[17] Plaintiff’s Supplementary Court Book (“PSCB”) 9
[18] PSCB 9
[19] DSCB 66
[20] DSCB 65, see also DSCB 51
[21] PSCB 11
[22] DSCB 63
[23] DSCB 51
[24] DSCB51, see also DSCB 63
[25]DCB 302. I do not see anything turning on the fact that the general practitioner goes on to record that the prolapse was “after MVA”. It is not clear that this was a causal statement as opposed to a temporal one.
[26] PCB 21
[27] DCB 304
[28] Affidavit of Simon Fiteni sworn 4 February 2022, paragraph [6]
21Counsel for VWA accepted that the clinical notes referred to back and neck pain. However, he submitted that it was significant the clinical notes did not include any reference to back or neck pain as a result of her employment.
22The clinical notes tendered in evidence were extremely brief, often consisting of little more than one or two typed words or barely legible handwritten notes.
23In the case of Northend Medical Clinic, which seems to be the medical clinic which Mrs Fiteni most regularly attended between 2008 and 2013, a set of typewritten notes and two sets of handwritten notes were tendered in evidence. There are handwritten notes for some dates which do not have any equivalent in the typewritten notes, and vice versa. The typewritten notes are very sparse, often consisting of little more than a record of the prescription given. There is greater detail in the handwritten notes, but they are also brief, and very difficult to read. For example:
(a) on 9 Sep 2008, there is a handwritten note which refers to a CT scan and appears to refer to the L5-S1 and L4-5 vertebrae.[29] There is no equivalent typewritten note;
(b) on 17 April 2009, the typewritten notes simply record that the presenting problem is a pathology request. The listed pathology tests are unrelated to back or neck pain.[30] However, the handwritten notes for the consultation on this date contain a reference to “sore neck/sore back”;[31]
(c) on 20 April 2009, the handwritten notes appear to record “Neck + lower [or lumbar] back pain”,[32] but the typewritten notes record only “x-ray cervical spine – neck pain FI”;[33] and
(d) on 22 June 2009 and 20 January 2010, there are typewritten notes which record prescriptions for Voltaren, without providing any further detail. The handwritten notes for these consultations were tendered in evidence, but are largely illegible, although it is possible that the note for 22 June 2009 states “styling & cutting” and the note for 20 January 2010 refers to “sore hands”.[34]
[29] DSCB 66
[30] DSCB 51
[31] DSCB 66
[32] DSCB 66
[33] DSCB 51
[34] DSCB 51; see also DSCB 63
24The Court of Appeal in Philippiadis v Transport Accident Commission[35] cautioned that care must be exercised when considering the clinical records of medical practitioners – those records may be “inaccurate through miscommunication or misleading through omission”.[36] In the present case, I must proceed with particular caution – the clinical notes relied upon are incomplete, sparse and (in the case of the handwritten notes) largely illegible.
[35] [2016] VSCA 1
[36] [2016] VSCA 1 at paragraph [105]
25I am not prepared to infer from the lack of any obvious reference to Mrs Fiteni’s symptoms resulting from her employment in the clinical notes prior to 2014 that Mrs Fiteni did not complain that her symptoms resulted from her employment. In any event, it was not Mrs Fiteni’s role to speculate as to the causation of her symptoms. This is a matter for medical opinion.
26Nor am I prepared to infer that these clinical notes fully record the details of all of Mrs Fiteni’s complaints of her symptoms to her medical practitioners over the years. I rely upon the clinical notes where they are corroborative of Mrs Fiteni’s own evidence. However, to the extent of any conflict between these notes and Mrs Fiteni’s evidence, I prefer the evidence of Mrs Fiteni.
27I accept Mrs Fiteni’s evidence that both her neck and back pain began shortly after she commenced her employment at Hair Trivia in 2008; that this pain intermittently flared up; and that it progressively worsened over the years. I accept Mrs Fiteni’s evidence that, during her employment with Ms Buntevski, she attended several doctors complaining of back and neck pain after a days’ work.[37] I accept that, as a result of her lower back pain, Mrs Fiteni underwent major spinal surgery, but that the operation was not successful in reducing her pain. I accept that Mrs Fiteni continues to have ongoing and daily pain in her lower back, which radiates into her left leg, as well as ongoing pain in her upper back and neck. I accept that she suffers intermittent severe flare-ups of this pain, particularly when she has been too active.
[37] Transcript (“T”) 12, Lines (“L”) 1-18
28I also accept that any neck pain Mrs Fiteni suffered as a result of a car accident in 2016 resolved very shortly thereafter and that she suffered, at most, minor back pain during her pregnancies, which quickly resolved after her children were born.
The medical evidence
29In the introduction to these reasons, I outlined Dr Brazenor’s key findings.
30Dr Brazenor expresses the opinion that the clinical records provide no evidence that there was new onset of neck and back pain during the period of Mrs Fiteni’s employment by Ms Buntevski at Hair Trivia, which persisted thereafter.[38] This opinion is inconsistent with my factual findings above.
[38] DSCB 13
31Dr Brazenor also expresses the view that Mrs Fiteni is largely perpetuating a ruse in her reports of her current symptoms. This opinion is also inconsistent with my factual findings above.
32There is no doubt Dr Brazenor conducted a thorough review of the clinical records, radiology and medical reports. However, I did not find his review particularly helpful. I doubt the expertise of a neurologist to give an opinion on what would or would not be reported to a general practitioner; or would or would not be recorded by that general practitioner in their notes. I also find it surprising that Dr Brazenor was able to express the view that Mrs Fiteni was “largely perpetuating a ruse” on the basis of his initial review of documents (which at that stage did not include extensive clinical notes) and a videoconference interview with Mrs Fiteni. Dr Brazenor’s willingness to reach the conclusion that Mrs Fiteni was perpetrating a ruse (a conclusion which VWA did not seek to support at the hearing), his comment on matters beyond his expertise, such as the basis for a psychiatrist’s diagnosis,[39] and his generally argumentative tone, are all suggestive of a lack of balance.
[39] DCB 105
33It also appears from his opinions that Dr Brazenor views the question he is required to answer to be whether there has been “structural injury” to Mrs Fiteni’s lumbar or cervical spine. A significant, perhaps even the predominant, plank in his opinion, is that there are no observable radiological changes which could amount to a “structural injury”.[40] To come within paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act, Mrs Fiteni must show an impairment of her spine which has a physical or organic basis, rather than a psychological basis.[41] This requirement is not equivalent to a requirement that there be “structural injury” to Mrs Fiteni’s spine.
[40] DCB 115
[41] Section 134AB(38)(h) and (i) of the Act; Meadows v Lichmore Pty Ltd [2013] VSCA 201
34I also outlined the key findings of occupational therapist, Dr Lucas, in the introduction to these reasons. His conclusion is somewhat equivocal. He acknowledges that prolonged sitting, standing and the maintenance of abnormal postures and the undertaking of unfamiliar loading tasks, were recognised exacerbating factors.[42] However, he says he is “unable to exclude” the likelihood that Mrs Fiteni would have experienced symptoms “irrespective of her employment choices and participations”.[43] He states that he would not restrict Mrs Fiteni “from maintaining a usual home or workplace presence”.[44] However, he provides no substantial explanation for holding this view in light of Mrs Fiteni’s reported symptoms. It is not clear whether this opinion is based on a rejection of Mrs Fiteni’s reported symptoms (and, if so, on what basis), or a conclusion that normal home and work activities were within Mrs Fiteni’s capacities given her reported symptoms.
[42] DCB 153
[43] DCB 153
[44] DCB 156
35Dr Hazem Akil is a medico-legal neurologist called by Mrs Fiteni. He examined Mrs Fiteni once by Zoom and prepared two reports. He diagnoses Mrs Fiteni with aggravation of cervical spondylosis and aggravation of a lytic lumbar spondylolisthesis of L5-S1. He concludes that her work as a hairdresser is the “main contributing factor”[45] to her symptoms. Although at pains to emphasise his respect for Dr Brazenor,[46] he disagrees with Dr Brazenor’s view that her role as a hairdresser was not an acknowledged risk for cervical or lumbar spine injury:
“… In fact, prolonged standing in fixed single position can pose a risk to degeneration of the lumbar spine. Prolonged fixed posture of the neck also can pose a risk of accelerated degeneration of the cervical spine.”[47]
[45] PSCB 38
[46] PSCB 42
[47] PSCB 41
36I found Dr Akil’s report careful and balanced. He does not stray beyond his expertise as a neurologist.[48] He accepts Mrs Fiteni could “in theory” perform a desk job where she could alternate between sitting and standing, but has doubts as to whether she could perform such a job reliably.
[48] See, for example, paragraph [3] of his second report dated 1 February 2022, PSCB 42
37Dr James Rowe is an occupational therapist called by Mrs Fiteni, who provided three expert reports. He conducted an in-person physical examination of Mrs Fiteni on 24 February 2021 and a Zoom examination of Mrs Fiteni on 29 November 2021. He is the only one of all the medico-legal experts to have examined Mrs Fiteni in person. In his physical examination, he observed Mrs Fiteni had very limited movements of her cervical spine, particularly to the left, and that movements to the left of her lumbosacral spine were painful. He observed weakness of the left foot and ankle, that her lateral toes were numb, and that the left ankle jerk was absent. He observed a weak grip in Mrs Fiteni’s right hand, measured over repeated trials with a hand dynamometer.
38Dr Rowe diagnoses a lumbosacral disc derangement and cervical disc derangement, of organic basis. He describes Mrs Fiteni’s duties as a “high pressure high intensity workplace”.[49] He says:
“Her description of standing in one position, of extended periods on concrete flooring, working with chairs that were too high and repeated use of her arms and hands in a particular manner are consistent with the nature of the problems and symptoms she developed.”[50]
[49] PSCB 21
[50] PSCB 22
39He concludes “[i]n my opinion the nature of Ms Fiteni’s duties, have most certainly contributed to her current state of ill health and incapacity”[51] and that her “employment with Belinda Bunteski (sic) … between February 2008 and October 2013 was a significant contributing factor to her injury”.[52]
[51] PSCB 30
[52] PSCB 30
40Like Dr Brazenor, Dr Rowe reviewed extensive radiology and clinical records.
41Dr Rowe’s interpretation of the clinical records is akin to my own:
“Over a number of years she consulted with her GP and Specialists around issues with her back which eventually resulted in surgery. Unfortunately that surgery has not been successful in relieving her pain or increasing her capacity. Regrettably this sometimes happen
…
.Dr Brazenor considers she is perpetrating a ruse whereas I found her to be straightforward and well motivated to return to suitable work… .” [53]
[53]PSCB 34
42In relation to radiology Dr Rowe explains:
“… Radiology is a valuable tool in assessment and management but it has to be considered alongside the patient’s own account of their situation. If pain and incapacity cannot be explained against a lack of radiological evidence it does not necessarily mean that there is no pain or condition.”[54]
[54] PSCB 34
43This approach can be contrasted to that of Dr Brazenor who, having been unable to find any radiological evidence of injury, seems compelled to the conclusion that Mrs Fiteni is “perpetrating a ruse”.
44I found Dr Rowe’s report careful and balanced. He is firm in his view that Mrs Fiteni’s employment with Ms Buntevski was a significant contributing factor in the impairment of Mrs Fiteni’s lumbar spine. However, he also concludes that she has capacity for suitable work, commencing at 10 hours per week.[55]
[55] PSCB 22
45Mrs Fiteni also tendered reports from treating neurosurgeon, Associate Professor Gonzalvo; treating general practitioner, Dr Hakan Baglar and medico-legal neurosurgeon, Mr Mohammed Awad:
(a) Associate Professor Gonzalvo says that Mrs Fiteni’s employment “was a contributing factor to deterioration of an underlying condition such as spondylolisthesis rather than the main cause”.[56] This opinion is perhaps a little equivocal, but broadly consistent with the views of Dr Akil in relation to Mrs Fiteni’s lumbar spine.
(b) Mrs Fiteni’s general practitioner, Dr Baglar, provides a report very strongly in favour of Mrs Fiteni. It is plain from his reports that Dr Baglar is deeply concerned for the welfare of his patient, however this concern verges into advocacy. I prefer to rely upon the opinions of Associate Professor Gonzalvo, Dr Akil and Dr Rowe in relation to the questions in issue in this proceeding.
(c) Mr Awad’s opinion is broadly consistent with the opinion of Dr Akil. The Serious Injury Applications practice note permits reports from only two medico-legal consultants per impairment to be tendered. VWA complied with this requirement. Mrs Fiteni did not. In this context, I prefer not to place significant weight on Mr Awad’s opinion on causation.
[56] PCB 52
46Finally, there were two Medical Panel opinions tendered (both obtained in other proceedings). Both parties submitted that the material provided to the two Medical Panels was incomplete. Neither party submitted that these opinions should be accepted in their entirety.
47On the question of causation, the first Medical Panel opinion accepted that Mrs Fiteni had suffered an aggravation of pre-existing asymptomatic lumbar spondylosis as a result of her employment. However, it was apparent from their reasons that they were considering the whole of Mrs Fiteni’s employment at Hair Trivia, not just her employment with Ms Buntevski. The Medical Panel also concluded that Mrs Fiteni had no significant complaints or discomfort for some years prior to May 2014. It did not consider the evidence (which I have accepted in this proceeding) that Mrs Fiteni’s neck and back pain had onset soon after starting her employment in 2008. Although the Medical Panel’s first opinion may be viewed as supportive of Mrs Fiteni on the question of causation, I do not find it helpful in all the circumstances, and place no reliance upon it.
48The second Medical Panel opinion confirmed that Mrs Fiteni was suffering from an aggravation of pre-existing asymptomatic spondylosis of the lumbar spine. It also found that Mrs Fiteni was suffering from a soft-tissue injury to the cervical spine, but said but that this condition was now resolved and that her current myofascial symptoms arose from unrelated pre-existing cervical spondylosis. Again, the Medical Panel did not have the benefit of the clinical records and radiology dating back to 2008, which corroborate Mrs Fiteni’s evidence of onset of neck and back pain in 2008. I prefer the opinions of Dr Akil and Dr Rowe.
49In my view, the careful and balanced opinions of Dr Akil and Dr Rowe provide the best explanation for the facts as I have found them, namely an onset of both neck and back pain after Mrs Fiteni commenced employment at Hair Trivia, followed by a progressive decline which continued (unabated) after Mrs Fiteni ceased employment.
Conclusion on causation
50I prefer the opinions of Dr Akil and Dr Rowe to those of the other medical experts. Dr Rowe’s opinion is that Mrs Fiteni’s employment by Ms Buntevski between February 2008 and October 2013 was a significant contributing factor to her injury[57] and that “[h]er increased symptoms and pain and consequent requirement for assistance with ADLs are a result of her employment.”[58] Dr Akil describes Mrs Fiteni’s employment as “the main contributing factor” to her symptoms.[59]
[57] PSCB 30 and 31
[58] PSCB 25
[59]PSCB 38
51There was some debate in closing submissions as to whether the appropriate test for causation was whether Mrs Fiteni’s employment by Ms Buntevski was “a cause” of her injury or a “significant contributing factor” of her injury. Senior counsel for Mrs Fiteni submitted the only requirement was that the employment be “a cause”. Counsel for VWA submitted that whether employment was “a significant contributing factor” was the appropriate test and, in any event, this was the test that the medical experts addressed.
52It seems to me that this question turns on the application of s134AB(2) of the Act, which permits damages to be recovered in respect of an injury “arising out of” employment if it is a serious injury.[60] However, it is not necessary for me to decide this issue. I am satisfied, on the basis of the opinions of Dr Akil and Dr Rowe, that Mrs Fiteni’s employment by Ms Buntevski satisfies the requirements of both “a cause” of, and “a significant contributing factor” to her neck and back symptoms, particularly given:
(a) Mrs Fiteni’s symptoms onset shortly after she commenced her employment by Ms Buntevski; and her pain intermittently flared up and progressively worsened over the years;
(b) Mrs Fiteni was employed by Ms Buntevski for the majority of her time at Hair Trivia (approximately five-and-a-half of the seven-and-a-half years in which Mrs Fiteni worked at Hair Trivia);
(c) Ms Buntevski required Mrs Fiteni to perform blow-drying in a particular manner which Mrs Fiteni found placed pressure on her back;[61] and
(d) Mrs Fiteni found the system of work at Hair Trivia after Ms Buntevski’s uncle and his business partner took over less challenging.[62]
[60]For which it suffices to show that the employment was “a cause”: Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 at [7]-[8]; compare s82(2C) of the Act which concerns the question of whether there is an entitlement to compensation for (among other things) an aggravation injury.
[61] Paragraph 8(d) first affidavit
[62] Paragraph 10, second affidavit
53I am satisfied that there was the required causal nexus between Mrs Fiteni’s ongoing symptoms of neck and back pain and her employment.
Loss of income earning capacity
54If Mrs Fiteni is to have leave to sue for pecuniary damages, she must establish that:
(a) the loss of income earning capacity consequence of her spinal impairment is fairly described as being “more than ‘significant’ or ‘marked’” and “at least very considerable”, when judged by comparison with other cases in the range of possible impairments or losses of a body function;[63]
(b) at the date of the hearing, Mrs Fiteni has a loss of earning capacity of 40 per cent or more when her current income earning capacity is compared to her without injury earning capacity calculated as set out in s134AB(38)(f);[64] and
(c) Mrs Fiteni will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more after the hearing.[65]
[63] Section 134AB(38)(c) of the Act
[64] Section 134AB(38)(e)(i) of the Act
[65] Section 134AB(38)(e)(ii) of the Act
55Counsel for VWA submitted that Mrs Fiteni could work full time. He relied particularly on the reports of Dr Brazenor and Dr Lucas and the following roles identified in reports prepared by Workable Consulting and Recovre:
(a) customer service officer;
(b) ticket collector;
(c) hair care product representative;
(d) medical receptionist;
(e) receptionist;
(f) information officer;
(g) information/communication officer;
(h) appointment setter; and
(i) contact or call centre operator.
56Senior Counsel for Mrs Fiteni, on the other hand, submitted that I should be satisfied that Mrs Fiteni was permanently incapacitated from all suitable employment. He submitted that Mrs Fiteni was not suited to any of the proposed roles, physically or by reason of her vocational capabilities.
57Mrs Fiteni bears the burden of establishing each of the loss of earning capacity requirements I set out above. However, VWA bears the evidentiary burden to adduce evidence of particular roles which might constitute suitable employment for the purposes of calculating Mrs Fiteni’s loss of earning capacity.[66]
[66]Giankos v SPC Armona Operations Ltd (2011) 34 VR 120 at [115]; applied in Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 at paragraph [92].
58I have already found that I prefer the opinions of Dr Akil and Dr Rowe to those of Dr Brazenor and Dr Lucas. It follows from Dr Akil and Dr Rowe’s opinion that Mrs Fiteni is incapable of working full time in any of the suggested roles.
59However, each of Mr Awad, Dr Akil and Dr Rowe suggest that Mrs Fiteni may be capable of some work, if a suitable role could be found. Mr Awad says that “[s]he does have some capacity for sedentary work 2-3 hours per day for up to 2-3 days per week if a suitable job was available”.[67] Dr Rowe says that “I would recommend 10 hours per week in a position consistent with the type I have outlined above”, namely “[s]he should not stand in one position for more than 15 minutes, she should avoid prolonged neck flexion. She should not be lifting and carrying weights of more than 2-3 kg”.[68] Although in his second report Dr Rowe says that none of the roles suggested by Workable Consulting are feasible,[69] he ultimately concludes that:
“With regard to employment Medical Receptionist and Ticket Collector would seem to be possibilities but it should be borne in mind that in today’s employment environment positions do not exist in a vacuum where no other duties are ever required. With her history and her absence from the workforce, transition to be paid, meaningful employment in the real world will be a challenge.”[70]
[67] PCB 79
[68] PSCB 22
[69] PSCB 31
[70] PCSB 35
60Dr Akil says that:
“… As I mentioned before in theory she could be retrained to do a desk type job where she can alternate between sitting and standing, however, that should take into consideration her place of residence, her previous experience, her prior education, as well as the fact that her sitting and standing tolerance is very short and limited.
With regards to the job as a ticket collector and hair care product representative, packer and a product assembler as well as medical receptionist, I find myself having lots of doubt that her ability to do them reliably. She has a very short standing or sitting tolerance. Her walking tolerance is less than 10 minutes and her lifting is very much confined to light objects. Packing for example requires her to stand for prolonged period while medical receptionist requires her to sit primarily for prolonged period. The other jobs she might alternate between sitting and standing for tolerance between 20 to 30 minutes she may not be able to do the job reliably. With the hair product representative that requires her to wander and drive, which means that she has to sit in a car for prolonged period and wander around client. That might cause a significant pain for her.”[71] (sic)
[71] PSCB 40
61The second Medical Panel expresses the opinion that Mrs Fiteni is capable of working as a customer service officer. This opinion is based in part on the Medical Panel’s decision not to fully accept Mrs Fiteni’s self-reported pain and restrictions. The Medical Panel did not include an occupational therapist or other specialist in suitable employment. The Medical Panel was not required to, and did not, specify how many hours per week Mrs Fiteni was capable of working. To the extent of inconsistency, I prefer the evidence of Mr Awad, Dr Akil and Dr Rowe.
62There is no evidence that any of the roles suggested by VWA would meet the requirements that Mr Awad, Dr Akil and Dr Rowe specify for Mrs Fiteni. For example, although there is evidence that part-time positions are available for the suggested roles, there is no evidence that a suitable position of only two to three hours per day for three days per week is available. Indeed, the example of part-time work which is provided has typical shifts which exceed these limitations.[72]
[72] Recovre Vocational Assessment Report dated 31 August 2021, DCB 236
63I accept that it is possible that Mrs Fiteni, with commitment and support, will be able to find part-time work in a suitable role. However, given VWA has not provided evidence of such a suitable role, I am satisfied that it is not probable that she will.
64I am satisfied that Mrs Fiteni has no current income earning capacity. I am also satisfied, on the basis of the opinions of Mr Awad, Dr Akil and Dr Rowe, that this incapacity is permanent, in the sense that it will continue through the foreseeable future.[73] Self-evidently, this is a very considerable consequence for a 43-year-old worker. Mrs Fiteni has satisfied each of the loss of income earning capacity requirements.
[73] Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622
65If I am wrong in my conclusion that Mrs Fiteni is totally incapacitated from employment, I would find that Mrs Fiteni is capable of no more than 10 hours of employment per week.[74] The highest earning occupation suggested by VWA is information officer, which has weekly earnings of $1,296. This equates to $34 per hour (assuming a 38-hour week). Even assuming Mrs Fiteni was qualified for this occupation (which requires completion of HSC or similar) and was able to obtain employment in this role for only 10 hours per week spread over a week, her current income earning capacity would be at most $340 per week, or $17,680 per year.
[74] Mr Awad, dated 11 June 2021 at PCB 79; Dr Rowe dated 29 September 2021 at PCB 22
66This figure must be compared to Mrs Fiteni’s without injury earning capacity calculated in accordance with s134AB(38)(f)(ii) of the Act. This requires me to ascertain the gross income that Mrs Fiteni:[75]
(a) was earning;
(b) was capable of earning;
(c) would have earned; or
(d) would have been capable of earning
during the period which was three years before and three years after the injury as most fairly reflects Mrs Fiteni’s earning capacity had the injury not occurred.
[75] Section 134AB(38)(f)(ii) of the Act
67The most that Mrs Fiteni actually earned in the relevant six-year period was $22,608 (in the financial year ended 2012).
68However, when Mrs Fiteni began her employment with Ms Buntevski she had a four-year-old son. Her second child was born on 5 December 2011 and her third child was born on 3 March 2013. She only ever worked at Hair Trivia on a part-time basis, and on less than half-time hours.[76] Mrs Fiteni gave evidence that once her children were at school and more independent, she intended to work full-time as a hairdresser. I accept that Mrs Fiteni’s actual income in the relevant period was reduced by at least half because of her concurrent performance of unpaid parental duties.
[76]First affidavit, paragraph [5] PCB 7; affidavit of Belinda Buntevski paragraph [5] DCB 8; affidavit of Tony Nikolovski paragraph [3], DCB 9
69When a worker’s actual income is reduced due to parental duties, it is “most fair” to use the amount the worker “was capable of earning”, rather than “was earning”[77] when determining without injury income earning capacity. Indeed, I would go so far as to say that it would be unjust and discriminatory if Mrs Fiteni were unable to satisfy the loss of earning capacity requirements because her actual income was reduced due to the performance of parental duties in the relevant period. Accordingly, I accept Mrs Fiteni’s without injury earning capacity was at least $45,216 per annum (that is, double the amount she actually earned in the financial year ended 2012). As $17,680 is 39 per cent of $45,216, I am satisfied that Mrs Fiteni meets the current loss of income earning capacity requirement. I am also satisfied that her loss of income earning capacity is permanent and that it meets the narrative test of being a very considerable consequence.
[77] Section 134AB(38)(f)(ii) of the Act
Conclusion
70Mrs Fiteni has suffered an injury which has the required causal nexus with her employment; and is a serious injury with respect to its loss of earning capacity consequences.
71I will grant Mrs Fiteni leave to bring proceedings for both pain and suffering and pecuniary loss damages.
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Certificate
I certify that these 21 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 21 February 2022.
Dated: 21 February 2022
Coco Weston
Associate to her Honour Judge Tran
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