Fitzgerald v Victorian WorkCover Authority
[2024] VCC 1780
•12 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-04899
| KATIA FITZGERALD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2024 | |
DATE OF JUDGMENT: | 12 November 2024 | |
CASE MAY BE CITED AS: | Fitzgerald v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1780 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Injury to low back – aggravation of underlying condition – non-compensable pre-existing conditions - pain and suffering – loss of earnings – whether plaintiff will continue permanently to have loss of earning capacity productive of financial loss after date of hearing
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic) s335
Cases Cited:Petkovski v Galletti[1994] 1 VR 436; Humphries and Anor v Poljak [1992] 2 VR 129; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Acir v Frosster Pty Ltd [2009] VSC 454; Kavanagh v The Commonwealth (1960) 103 CLR 547; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; Borazio v State of Victoria [2015] VSCA 131; Guppy v VWA [2010] VSCA 164; Browne v Dunn (1893) 6 R 67; Hofer v The Queen [2021] HCA 36
Judgment: Leave granted to the plaintiff to commence proceedings for damages for pain and suffering and loss of earnings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M K Clarke and Mr A Kleiman | Arnold Dallas McPherson |
| For the Defendant | Ms L M Glass | Hall & Wilcox |
HIS HONOUR:
1The plaintiff, Katia Fitzgerald, was 64 years of age when injured in the course of her employment as a retail store manager with Cinori Shoes Pty Ltd (trading as Mountfords Shoes) on 29 January 2021. She was employed on a full-time basis in a role which required some manual handling of stock and deliveries. Mrs Fitzgerald alleges she was moving a box in the storeroom as part of a large delivery when she felt a pinch in her low back.
2Now 67, Mrs Fitzgerald seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering and loss of earnings consequences as a result of the permanent serious impairment or loss of a body function.
3The injury relied upon is to the lumbar spine.[1]
[1] The plaintiff relied upon her two affidavits sworn 11 May 2023 and 1 March 2024; and lay affidavit of her husband Paul Fitzgerald dated 4 April 2024
4It is not in dispute that Mrs Fitzgerald injured her low back in the incident.[2]
[2] Transcript (“T”) 12
5For its part, the Victorian WorkCover Authority (“VWA”) submit that the initial compensable injury has now resolved, and so the plaintiff cannot establish causation. It relies upon a body of evidence to demonstrate a pre-existing condition in the cervical and lumbar spine, and submits that Mrs Fitzgerald does not suffer any ongoing compensable injury. Further, if this condition was aggravated, then the consequences of that aggravation do not meet the narrative test in relation to pain and suffering or loss of earnings consequences.[3]
[3] See Petkovski v Galletti[1994] 1 VR 436
6There is a residual issue in relation to the application as it relates to loss of earnings. The plaintiff, now aged 67 years, must establish a permanent and ongoing loss of earning capacity of 40 per cent or more which will be productive of ongoing financial loss in order to satisfy the statutory test.
7The VWA submit that because of a number of comorbidities including pre-existing conditions of the neck, low back, right knee, hip and other medical conditions, Mrs Fitzgerald would no longer have been working as at the date of the hearing, and therefore cannot satisfy s325(2)(b) of the Act.
8The VWA also submitted that the plaintiff was not a reliable historian in relation to the history of her injury. I reject that submission. She did her best to give evidence in a frank manner, and engaged with questions during cross-examination. She made regular concessions based on documents where she did not have a specific recall of matters. I accept her evidence.
9For the reasons that follow, I am satisfied that Mrs Fitzgerald should be granted leave under s335 of the Act to bring common law proceedings to recover pain and suffering and pecuniary loss damages for the spinal injury sustained in the course of her employment.
Principles
10The plaintiff bears the onus of demonstrating that her impairment is permanent and that the consequences are “serious”.
11She must establish that the economic loss consequences to her, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and as being at least very considerable,[4] in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.
[4]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
12To meet the requisite threshold in relation to pecuniary loss, I must also be satisfied that she has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in ss325(2)(e), (f) and (g) of the Act.
13The measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury” earnings).[5]
[5]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70]
14Any such comparison should accord with the observations of J Forrest J in Acir v Frosster Pty Ltd[6] that s134AB of the Accident Compensation Act 1985 is:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.”[7]
[6] [2009] VSC 454 (“Acir”)
[7] Acir at paragraph [171]
15I am required to assess whether Mrs Fitzgerald has a loss of earning capacity of 40 per cent or more as at the date of the hearing of this application;[8] and determine whether, after the date of the hearing, she will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[9]
[8] See s325(2)(e)(i) of the Act;
[9] See s325(2)(e)(ii) of the Act
16I am required to assess all the evidence that most fairly reflects the plaintiff’s earning capacity as at the date of the hearing. As J Forrest J said in Acir,[10] the question to be answered in the context of s325(2)(f) is: what was the worker’s ability to earn money in the workforce, taking into account her pre-injury state of health, level of employment and career opportunities at the time of injury?
[10] Supra
Background
17Mrs Fitzgerald attended school to Year 10, and then worked in various administrative type roles. From approximately 2003 until early 2020, she worked for Mountfords Shoes in Toorak, as store manager from 2006.
18In March 2020, Mrs Fitzgerald commenced employment with Cinori Shoes Pty Ltd as the manager of a shoe store at Melbourne Central. Her duties involved sales, staff management, web order processing, store merchandising, rearranging floor stock and stock management, which included receiving deliveries to be checked and unpacked in the storeroom.
19On 29 January 2021, Mrs Fitzgerald was working alone and received a large delivery at the end of the day. She alleges she injured her low back while moving a box in the storeroom.
20The next day, Mrs Fitzgerald woke in excruciating pain. Scheduled to open the store, she attended work but left as soon as another staff member was able to relieve her. Later that day, her husband took her to the Austin Hospital Emergency Department.
Pre-existing low back issues
21The application falls for consideration in the context of a significant history of pre-existing complaints of low back pain.
22While the plaintiff did not recall the detail of her intermittent lumbar back pain prior to the incident in January 2021, it emerged in cross examination that:
(a) she was diagnosed over twenty years ago with spinal canal stenosis;
(b) Mrs Fitzgerald experienced low back with episodes of left sciatic pain since her pregnancies, which was controlled with exercise and medication;
(c) her doctor prescribed Celebrex for this pain from time to time from November 2000; and
(d) the clinical notes record recurrent back pain and a variety of other medical issues and injuries which required prescription pain medication from time to time, including prescriptions “possibly” for back pain between 2003 to 2005, a fall in November 2008; diagnosis of bilateral hip osteoarthritis following a fall in March 2009, a fall in 2011 causing low back pain; other references to low back symptoms in 2009, 2010, 2015 and 2017; and a report of back pain after tripping on a footpath in July 2017.
23By way of example, on 1 April 2017, her general practitioner recorded this complaint of back pain:
“Back has been playing up over last few weeks but when woke this morning very uncomfortable and stiff.
Pain into thighs but no sciatica.
Has improved somewhat over the morning.
Has not been this bad for many years.”[11]
[11] Defendant’s Court Book (“DCB”) 112
24There are no entries in the clinical notes relating to low back pain after July 2017 until the incident at work in January 2021, a gap of over three years.
25On 20 April 2019, Mrs Fitgerald tripped on a shoe box at work and fell after descending a ladder, injuring her right knee and hamstring. She did not take any significant period of time off work[12] and she “soldiered on like usual”.[13] Her work duties were restricted to the effect that another worker should be present with her at the shop at all times, she was to avoid excessive use and bending of her right knee and was not to climb ladders at any time.[14]
[12] Ibid at [9]
[13] T36, L15
[14] T37 - 38
26Mrs Fitzgerald underwent the following treatment and investigations, with the principal findings noted as follows:
(a) 24 May 2002:
CT lumbar spine:
“Large L4/5 posterior disc protrusion, not significantly changed since the previous examination of 25/3/99. This would be compressing the L5 nerve roots, possibly the left greater than right.”[15]
[15]“DCB 5
(b) 25 June 2009:
CT lumbar spine:
“Multilevel central canal stenosis most significant at L4/5 where there is moderate narrowing secondary to a central posterior disc protrusion on a background of mild generalised disc bulging. Review of previous CT report dated May 2002 describes similar findings, although prior images are not available for direct comparison.”[16]
[16]DCB 8-9
(c) In 2010, Mrs Fitzgerald was referred to neurosurgeon Associate Professor Graeme Brazenor for neck and low back pain. Upon consultation on 25 October 2010, Dr Brazenor recorded a history of intermittent low back problems for the past 18 years since a pregnancy which in 2010 was radiating into the buttocks and legs, with episodes of left-sided sciatica; further, that she has been on Voltaren for a long period, and wakes up with stiffness in the low back.[17] Dr Brazenor advised that due to degenerative changes in the neck and low back, Mrs Fitzgerald should cease bending and lifting activity. In his opinion, the neck and low back were, “both actually going to deteriorate and might even mandate surgery in a worst-case scenario.”[18]
[17]DCB 26
[18]DCB 25, letter to Mrs Fitzgerald dated 1 December 2010
(d) 30 September 2011, in the context of a "fall landing on bottom some weeks ago. Ongoing lower back pain with sciatic radiation down the right leg":
CT lumbar spine:
“Degenerative disc disease at L4-5 with a mild generalised disc bulge and ligamentum flavum hypertrophy contributing to mild spinal canal stenosis. There is narrowing of the subarticular recess at this level which may possibly contribute to some compromise of the traversing L5 nerve root.
I note that the degree of disc bulge has markedly improved when compared to a CT from June 2009 when there was a large central disc protrusion at the same level. This probably reflects dehydration and involution of the protruded disc fragment.”[19]
[19]DCB 11-12
(e) 13 January 2015, noting the clinical history, "Longstanding … recurrent low back pain with right sciatica”:
MRI lumbar spine:
“Small to moderate broad based posterior disc bulge at L4-L5 causing mild central canal narrowing. Also mild bilateral foraminal narrowing without focal nerve root compression. Mild disc bulging at L2-L3 without nerve root compression. No other neural compromise. Mild lower lumbar facet joint degenerative changes.”[20]
(f) 14 October 2019, the clinical note recording, "pain in the right gluteal and right hip region for investigation":
MRI lumbar spine and right hip:
“1. Multilevel degenerative spondylotic disease of the lumbar spine. At L4-L5, there is narrowing of the subarticular recesses bilaterally, right worse than left, with suspected impingement of the traversing L5 nerve roots. At other levels there is no neural impingement.
2. Cam-type femoroacetabular impingement of the right hip with degeneration of the superior lateral labrum and anterior labrum. There are areas of chondral erosions, ulceration and blistering especially superiorly and anteriorly.
3. High-grade partial tear and delamination of the adductus magnus origin on the ischial tuberosity, with peritendinous oedema and T2 hyperintense fluid interposed in the tendon gap.”[21]
[20]DCB 13-14
[21]DCB 15-16
27Notwithstanding this history of intermittent symptoms related to her low back and other discrete injuries, Mrs Fitzgerald was in full time employment up until her injury in January 2021, without any significant time off work,[22] which is the best indicator of her pre-injury capacity.
[22] Affidavit of the plaintiff sworn 11 May 2023 at [7]
Treatment of the 2021 injury
28Since her injury, Mrs Fitzgerald has received extensive treatment by way of surgery and other conservative means.
(a) on 31 January 2021, her husband, Paul, took her to the Austin Health Emergency Department. The Discharge Summary records low back pain/strain following attempting to lift a heavy box, worsening over the next couple of days, radiating down the right lower limb. She was advised to see her regular general practitioner;[23]
(b) on 1 February 2021, Mrs Fitzgerald attended Dr David Doig,[24] who referred her to orthopaedic surgeon, Mr David de la Harpe. Upon consultation on 10 February 2021, Mr De La Harpe recommended a trial of CT guided epidural and opined that, “decompressive surgery may eventually be required”.[25]
(c) on 4 February 2021 an MRI of the lumbar spine disclosed:
“Appearances raise the possibility of descending right L5 nerve root compromise. It may be worthwhile considering a translaminar right-sided epidural injection of steroid and local anaesthetic at the L4-5 level for both diagnostic and treatment purposes. No exiting nerve root compromise.”[26]
[23] DCB 47
[24] Report of Dr David Doig dated 12 October 2022, Plaintiff’s Court Book (“PCB”) 49, 51
[25] Report of Mr David de la Harpe dated 11 February 2021, PCB 71
[26]DCB 17-18
(d) a CT guided epidural injection on 4 March 2021[27] provided only short term relief;[28] and
(e) on 22 May 2021, orthopaedic surgeon Mr David de la Harpe performed a microdiscectomy at L4-5 to treat Mrs Fitzgerald’s prolapsed disc at that level.[29] The procedure initially resolved the leg pain, but not the low back pain.[30] Mrs Fitzgerald also experiences ongoing leg numbness.
[27] PCB 128
[28] Report of Mr de la Harpe, 22 March 2021, PCB 73
[29] PCB 129
[30] Report of Mr de la Harpe, 7 June 2021, DCB 32
29It is not apparent from any of his reports that the treating surgeon, Mr de la Harpe, was aware of the history of the previous disc prolapse at L4‑5.[31]
[31]Operation report at Plaintiff’s Court Book (“PCB”) 72
30On 13 September 2021, an MRI of the lumbar spine confirmed the presence of moderate central canal and severe bilateral lateral recess stenoses at L4-L5, directly impinging both descending L5 nerve roots. It also noted:
“…epidural thickening and enhancement at the level L4-L5 particularly in the right lateral recess compatible with post surgical changes (surgery was in May 2021).
There is a small posterior midline seroma.
Mild L4-L5 3 mm retrolisthesis.
At L2-L3 and L3-L4, there are moderate central canals and bilateral lateral recess stenoses.”[32]
[32]DCB 19
31In October 2021, Dr de la Harpe referred her for physiotherapy, gym and hydrotherapy at Royal Talbot.[33]
[33] Report of Mr de la Harpe ,19 October 2021, DCB 31
32Mrs Fitzgerald returned to work in late 2021 on modified duties, and at the time of her termination in 2022 was working six hours a day, four days a week, in a modified sales and administration-type role.
33A CT lumbar spine on 8 March 2022 confirmed
“1. High-grade spinal canal stenosis at L4/L5, associated with a focal right paracentral disc protrusion/extrusion likely causing compression of the right L5 nerve root. Background of facet joint arthropathy, 2.5 mm retrolisthesis of L4 on L5, and disc desiccation with marked loss of disc height.”[34]
[34]DCB 20-21
34On 5 May 2022, an MRI of the lumbar spine confirmed:
“At L4-L5, stable minimal L4-L5 3 mm retrolisthesis. Prominent disc osteophyte complex and central/left paracentral disc protrusion. Moderate central canal but severe bilateral lateral recess stenoses. There is impingement of the descending right L5 and probably to a lesser extent left L5 nerve roots.
Moderate bilateral exit foraminal stenoses may be in contact with both exiting L4 nerve roots. Compared to prior 2021 MRI, appearances are stable.
…
Consider CT guided epidural steroid injection at L4-L5 level for symptomatic relief.”[35]
[35]DCB 23-24
35In June 2022, Mrs Fitzgerald attended neurosurgeon and spinal surgeon Dr Ales Aliashkevich. Mr Aliashkevich discussed further treatment options, including surgery in the form of a fusion procedure at L4-5. He was particularly concerned though with severe multilevel spondylosis with active discopathy on the right side of the L2-3 intervertebral disc, which is not work-related:
“I would be inclined to address her L2/3 disc pathology initially by lateral interbody fusion with posterior robotic fixation. Depending on the outcome, she might need further L4/5 surgery with interbody fusion and lateral recess decompression.”
36The history Dr Aliashkevich was provided in relation to previous low back issues is not apparent from his report.[36]
[36] Letter to treating specialist, Dr Schachna, dated 14 June 2022, PCB 67
37Mrs Fitzgerald was reluctant to undergo surgery and sought a further opinion from neurosurgeon, Dr Brazenor, whom she had previously seen.[37]
[37] PCB 16
38Upon examination in July 2022, Dr Brazenor accepted that Mrs Fitzgerald had sustained a compensable injury on 29 January 2021, and that despite microdiscectomy, had a right-sided recurrent disc prolapse at L4-5.[38] Dr Brazenor recommended conservative treatment, and, if not, that Mrs Fitzgerald proceed with an epidural if she was not pain-free.[39]
[38] Report dated 29 July 2022, PCB 183
[39] PCB 183
39From 31 August 2022 to February 2023, Dr Brazenor certified her as unfit to return to work.
40Mrs Fitzgerald gave a history to Dr Brazenor on 30 November 2022 that she was no better, and Dr Brazenor arranged to see her in 2023 for the purposes of referral for further surgery if her symptoms persisted.[40]
[40]PCB 186
41On 24 February 2023, Dr Brazenor again examined Mrs Fitzgerald who reported she was still having back pain, aching in her thighs, and severe cramps in the right leg. At this point, Dr Brazenor expressed the opinion in a letter to Dr Doig that Mrs Fitzgerald was fit to return to non-bending, non-lifting work.
42On 21 June 2023, Dr Brazenor had a “Zoom catch-up” with Mrs Fitzgerald, who reported that she was still not pain-free despite doing two 20-minute walks most days, and difficulties with her activities of daily living. Dr Brazenor stated:
“I actually don’t understand her case anymore. She should be pain-free by now, and I don’t believe she has sustained any permanent injury at work 2.5 years ago.”[41]
There is no path of reasoning set out in Dr Brazenor’s report, and he did not physically examine Mrs Fitzgerald on the occasion of expressing this opinion.
[41]DCB 29
43In September 2023, Dr Brazenor referred Mrs Fitzgerald for a second opinion from Professor Greg Malham, a neurosurgeon specialising in spine surgery.[42]
[42]DCB 29
44Following further investigation by way of a CT lumbar myelogram, on 4 October 2023, Professor Malham confirmed compression of the exiting L4 and descending L5 nerve root. He arranged for her to undergo a right L4-5 lumbar epidural injection, failing which surgical options would be explored.[43] His report dated 4 October 2023[44] records:
“Katia was cognisant this would improve her leg pain but not cure the leg pain given the chronicity of the sciatica but she would still have significant ongoing low back pain secondary to the L2/3 and severe L4/5 degenerative disc disease.”
[43] PCB 20
[44] DCB 44
45In November 2023, Mrs Fitzgerald underwent a right L4-5 lumbar epidural injection, which provided only partial and short-term relief from pain in her proximal anterior thigh, with no improvement in lower limb pain. In Professor Malham’s opinion “it would be reasonable to address both intrusive back and leg pain with an L4-5 posterior lumbar interbody fusion.”[45]
[45] Report dated 16 November 2023, PCB## could not find this
46In his report to the plaintiff’s solicitors dated 8 May 2024,[46] Professor Malham stated:
“Katia suffered an injury reported to me early-2021 suffering a right L4/5 symptomatic disc prolapse and underwent appropriate right L4/5 microdiscectomy by Mr David De La Harpe, Orthopaedic Spine Surgeon 2/5/2021. Following the microdiscectomy Katia reported right foot drop. The patient does not report previous back injuries either domestically or at work prior to the work injury suffered early-2021 and I have not had any correspondence informing me of any prior back injuries.
…
Katia's prognosis for ongoing back pain and permanent partial capacity will continue into the foreseeable future.”
[46] PCB 64
47There is no reference in his report to any previous investigations or the history of low back issues.
48Although fusion surgery at L4-5 was an option, in Professor Malham’s view it was contraindicated given medical comorbidities, including a recent bowel perforation and infection risk due to left ankle medial malleolus.
49Mrs Fitzgerald’s longstanding GP, Dr Doig is aware of her complete history and return to work efforts. Dr Doig considers her right sided sciatica with degeneration in her lumbar spine to be work related, and that she will not ever be able to return to her pre-injury employment or otherwise be able to work a full-time position in the foreseeable future.[47]
[47] Report of Dr David Doig dated 19 March 2024, PCB 59
50Dr Doig diagnosed “right sided sciatica with degeneration in her lumbar spine." He went on to state:
“As a consequence of her physical injuries, Katia is severely restricted in relation to her social, domestic, recreational and family activities. This restriction is likely to persists and have considerable input on her plans for future lifestyle.”[48]
[48]Report of Dr David Doig dated 19 March 2024, PCB 59
WorkCover claim
51On 9 February 2021, Mrs Fitzgerald lodged a worker’s claim form for injuries sustained in the incident.[49] By letter dated 16 March 2021, the claims agent, Allianz, accepted the claim for weekly payments and medical and like expenses in respect of the incident; and later approved the surgery performed by Mr de la Harpe in May 2021.[50] It is not in dispute that weekly payments were paid until age 67, ceasing in January 2024. Allianz also accepted liability for Mrs Fitzgerald’s work-related injury to the lower back including surgical scarring.[51]
[49]PCB 26
[50]PCB 34
[51]PCB 39
52Counsel for the plaintiff, Mr Michael Clarke, placed minimal reliance on this evidence, and the VWA made no submissions about the use which the Court could make of this admission against interest. It did not object to tender of the claim documents. I have had regard to this admission as one of the pieces of evidence that I may consider in determining the question of causation, but primarily rely upon the medical evidence.
Medico-legal evidence
53In his report dated 7 September 2023,[52] rheumatologist, Dr Tony Kostos states that the investigations over the years, both before and after her surgery, show progressive changes at the L4-5 level consistent with disc degeneration. In his opinion, her employment in general did not contribute at all to her lumbar spine disc degeneration and osteoarthritis, and:
“Whether the incident of 28 January 2021 caused any other problems is difficult to know, because her lumbar spine MRI scans from 14 October 2019 and 4 February 2021 are reported as having similar findings.
It is possible that Ms Fitzgerald’s pre-existing condition could have progressed and caused problems for her in the future, but this cannot be predicted with certainty.
It may be that the incident as described did contribute to a worsening of her longstanding back problems, but I cannot be more specific, because I do not have any knowledge of her examination findings following the injury.
According to Mr de la Harpe, her surgery for her compensable condition of sciatica has been successful, and therefore her current condition relates to non-specific low back pain for which her employment does not materially contribute to.”
[52] DCB 33.
54His opinion did not change following review of the clinical notes of Mr de la Harpe and Mr Malham.
55Dr Kostos did not accept the opinions of the treating doctors as to causation, but does not set out any path of reasoning as to why this is so. I place limited weight on Dr Kostos’ opinion. It is equivocal, in that he states, “it is possible that Mrs Fitzgerald’s pre-existing condition could have progressed and caused problems for her in the future” and “It may be that the incident as described did contribute to a worsening of her longstanding back problems.” He is also a rheumatologist; I prefer the evidence of the treating spinal surgeons and consultant neurosurgeon, Dr Mohammed Awad.
56Dr Awad’s report dated 5 March 2024[53] sets out his opinion that Mrs Fitzgerald’s workplace environment over the years and the incident at work in January 2021 is most likely a dominant contributing factor to aggravation of L4-5 disc prolapse and spondylosis. In his opinion, her work environment remains the dominant contributing factor of ongoing pain, disability and requirement for treatment. He believes Mrs Fitzgerald sustained L4-5 disc prolapse and aggravation of lumbar spondylosis with ongoing L5 radiculopathy in the course of her employment. Dr Awad was provided with historical MRI scans of Mrs Fitzgerald’s lumbar spine from 2009 and 2019.
[53] PCB 124
57Orthopaedic surgeon Thomas Kossmann examined Mrs Fitzgerald on 29 January 2024. The history to Dr Kossmann included pain in her lower back and sciatica over the years, which she managed herself; and that in 2010, she was referred to Dr Graeme Brazenor, neurosurgeon, who recommended conservative treatment. Dr Kossmann diagnosed:
(a) aggravation of pre-existing lumbar spondylosis at L4-5;
(b) clinical signs of trochanteric bursitis and/or insertional tendonitis of the gluteus medius tendon on the right side; and
(c) failed back surgery syndrome following microdiscectomy at the L4-5 level.
58In his opinion, the plaintiff continues to suffer from significant symptoms, and her lumbar spine condition has had a profound impact on every aspect of her life.[54]
[54] PCB 110
Findings
The injury
59The defendant submits that by January 2021, the plaintiff was already suffering a long-term impairment of the lumbar spine characterised by intermittent flareups of the condition, including generalised lower back pain, right sided sciatica and at times bilateral sciatica.
60There is no evidence that Mrs Fitzgerald at the date of the incident was anything other than capable of working five days a week in a full-time role involving some manual-handling duties. This is so notwithstanding intermittent symptoms including pain and some sciatica over time, for which Mrs Fitzgerald required prescription medication.
61It is not in dispute that she injured her low back while handling stock on 29 January 2021, and thereafter suffered ongoing permanent and debilitating pain; resulting in conservative treatment, an epidural injection in March 2021 to relieve pain which provided only temporary relief from some symptoms; and microdiscectomy performed by Mr de la Harpe in May 2021.
62The VWA concedes that Mrs Fitzgerald suffered an aggravation-type injury at L4-5 which required treatment including surgery.
63The current medical evidence on balance is that further fusion surgery is an option, although Mrs Fitzgerald has elected not to proceed with that surgery. The surgery is also contraindicated due to co-morbidities.
64In the circumstance of a pre-existing condition at L4-5 of disc prolapse resulting in some pain and occasional sciatica, but only very limited time off work, and which did not prevent her from working full time as a retail store manager, I am satisfied that on 29 January 2021 Mrs Fitzgerald suffered a compensable injury at work by way of L4-5 disc prolapse and aggravation of her underlying condition of lumbar spondylosis with ongoing L5 radiculopathy.
Does the plaintiff suffer from an ongoing compensable injury
65In terms of causation, a plaintiff must prove on the balance of probabilities that a causal connection exists between the employment and the injury.[55] This is a question of fact, and is to be approached, like any other causation question, as a matter of common sense.[56]
[55]Kavanagh v The Commonwealth (1960) 103 CLR 547; and see Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232, [49], [50]
[56] March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
66Where it might be said that the evidence in total amounts to a possible causal relationship between the employment and the injury, I rely on the decision of EMI (Australia) Ltd v Bes,[57] where Asprey JA said:
“Where scientific knowledge properly adduced in evidence as expert opinion deposes to more than one event as a possible cause of a medical condition and where it appears from the evidence accepted by the tribunal of fact that of those possible causes of that condition one of them, on the balance of probabilities, is more likely than the others to be the cause of the medical condition in question, in this case the syncopal episode, then the tribunal may properly draw the inference of fact that such was the operating cause of that condition in the particular circumstances. Reliance for the purpose of drawing that inference may be placed by the tribunal on the evidence as a whole and is not confined to the medical evidence only except where all medical evidence agrees that the matters sought to be relied upon must be excluded from consideration as lacking justification for the drawing of the inference. That is not the case here.”[58]
[57] [1970] 2 NSWR 238; see also Borazio v State of Victoria [2015] VSCA 131, at [67], [69] and [70]
[58] Ibid, at 243
67I reject the submission that the injury has resolved. The injury has aggravated a previously manageable condition at L4-5 to the extent that Mrs Fitzgerald now suffers constant pain and right-sided sciatica, for which further surgery is an option.
What are the impairment consequences?
68At the time of her injury in January 2021, Mrs Fitzgerald was working four days a week, reduced from full time hours due to COVID.[59] Her pre-injury earning capacity should be assessed on the basis of the work that she actually did, even though there was evidence that she was doing more than Mr Brazenor thought sensible.[60]
[59]First affidavit of the plaintiff, at paragraph 33
[60] Guppy v VWA [2010] VSCA 164, at [38]
69In July 2022, Mrs Fitzgerald’s employment was terminated by reason of her inability to undertake her pre-injury duties.[61] She has not returned to work since.
[61]PCB 187
70At the time her employment was terminated, Mrs Fitzgerald had returned to modified duties, four days a week, six hours per day.
71Dr Doig is of the view that Mrs Fitzgerald will never be able to return to her pre-injury employment and will have restriction into the foreseeable future:
“It is my opinion that based on age, comorbidities, physical impairment, skill and work experience that it is unlikely that Katia will be able to work a full time position in the foreseeable future.
She is aware that keeping herself active and busy helps to manage her pain and if a suitable part time position was available this would assist her ability to cope with an ongoing disability. However, I feel it is unlikely that such a position can be found and her incapacity is likely to be present.”
72In Dr Kostos’ opinion, Mrs Fitzgerald is totally incapacitated for employment.
73Both Mr Kossmann and Professor Malham are also of the view she is unfit for her pre-injury employment, which will continue into the foreseeable future. In his report 8 May 2024, Professor Malham stated:
“Her pre-injury employment involved repetitive bending/twisting and lifting and this would aggravate her L4/5 level and have a high risk of causing recurrent pain.
Katia does have the capacity to perform suitable employment or re-train if appropriate with activities avoiding repetitive bending/twisting and heavy lifting.
The number of hours would be best assessed by an occupational health physician and dependent on Katia's capacity/intolerance to work part-time suitable alternative activity.
Katia does have permanent partial incapacity which will continue into the foreseeable future.”
74In Mr Kossman’s opinion, she has no residual work capacity for any modified/light duties until the pain issues affecting her lumbar spine radiating into her right leg, as well as her right neurology, have improved.
75I accept that Mrs Fitzgerald is unfit for her pre-injury employment.
76Against Mrs Fitzgerald’s submission that she is permanently incapacitated for all forms of employment, most of the doctors agree she has some residual capacity. Acknowledging her gradual return to work in modified duties up to 24 hours a week with the employer until July 2022, the evidence was unclear as to the precise extent of her current residual capacity, and neither party made detailed submissions.
77Overall, given she only ever returned to around 60 per cent of her pre-injury full-time hours in a modified role, and has not worked since 2022, it is likely Mrs Fitzgerald has a loss of earning capacity of at least 40 per cent or more. Her loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments, “at least very considerable”.
78The question remains: will she continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more?
79The VWA relied on Dr Brazenor to submit that the work component of the injury has resolved. Further, that:
(a) prior to injury she did not have capacity for full pre-injury duties;
(b) she has a retained capacity for suitable employment, demonstrated by her return to 24 hours per week on modified duties; and
(c) with the plaintiff's extensive list of comorbidities, including the supervening condition of arthritis in her hands, it would have been very difficult for her to have continued in work until aged 70 or more.
80Mrs Fitzgerald submitted that her loss of earning capacity will be productive of financial loss into the future, principally because her evidence was not challenged:
“But for my work injuries, I intended to keep working until at least and hopefully beyond the age of 70 as I loved work and the purpose it gave me.
…
… I had intended before my back injury to continue working until I was not capable of it anymore.”[62]
[62] Further Affidavit of Katia Fitzgerald sworn 1 March 2024, [7] and [12]
81The rule in Browne v Dunn[63] was recently considered by the High Court in Hofer v The Queen,[64] where the Court stated:
“26 … The rule requires that where it is intended that the evidence of the witness on a particular matter should not be accepted, that which is to be relied upon to impugn the witness's testimony should be put to the witness by the cross-examiner for his or her comment or explanation.
27 … The rule was described not only as one of professional practice but as essential to fairness. It may be added that adherence to the rule may also be necessary to permit an assessment on the part of the tribunal of fact of differences or inconsistencies in the accounts given and of the credit of witnesses where that is an issue.”
[63] (1893) 6 R 67 at 70-71
[64] [2021] HCA 36
82The importance of these gateway proceedings to a plaintiff cannot be overstated. Where significant reliance is placed on non-injury related factors that might prevent employment beyond retirement age, one might expect such matters would be put directly to the plaintiff in order that she might provide an explanation.
83It would usually be unfair to reject evidence on which there has been no cross examination where the rule has not been complied with, and where the witness has not otherwise been given the opportunity to deal with the suggestion now made for the first time in final address.
84In circumstances where it was not put to the plaintiff that:
(a) the progression of some other pre-existing medical condition would have produced incapacity for employment in any event; and
(b) she is not capable of working beyond age 67 because of one or more other conditions,
I accept her evidence it was her intention to work until aged 70 or more.
85Nevertheless, I must be persuaded on the whole of the evidence that she has capacity to so work into the future.
86I am satisfied that, but for her injury, Mrs Fitzgerald would be working beyond the date of the hearing. Although the evidence establishes that Mrs Fitzgerald suffers from a number of pre-existing conditions, there is no suggestion any are likely to have a significant impact on her capacity to work on an ongoing basis:
(a) in March 2009, Mrs Fitzgerald was diagnosed bilateral hip osteoarthritis, and also had issues with her right hip and right hamstring following a fall at work in April 2019. The plaintiff’s evidence included that by August 2020, she had returned to full time hours;
(b) she had cervical spine issues in 2009 for which she saw Mr Brazenor, and her GP diagnosed cervical disc disease in 2010. Her evidence was not challenged that her neck symptoms settled, and do not prevent her from working; and
(c) on 19 June 2019, Mrs Fitzgerald suffered an injury to the right knee, resulting in lifting and other work restrictions until Mrs Fitzgerald commenced work with the employer in March 2020. Her right knee did not prevent her from working up to the date of her injury, and later returning to work on modified duties.
87She does suffer from longstanding low back issues related to non-compensable disc degeneration at L2-3. Disc bulges are reported in various radiological reports from 2009, 2011, 2019 and 2022.
88In the opinion of treating surgeon Dr Aliashkevich, by June 2022, “around 60% of her problems” relate to the L2-3 disc pathology, which requires lateral interbody fusion.
89Dr Aliashkevich expresses no opinion regarding work capacity. His evidence falls short of establishing that this condition would prevent Mrs Fitzgerald from working beyond the date of the hearing.
90Professor Greg Malham also recommends consideration of interbody fusion at L2-3,[65] although he is hopeful it might be avoided. Professor Malham is clear that repetitive bending/twisting and lifting would aggravate her L4-5 level and have a high risk of causing recurrent pain, and is silent as to whether the pathology at L2-3 is significant in terms of future work capacity.
[65]DCB 44
91Mrs Fitzgerald has demonstrated significant resilience in the past in managing her low back symptoms without the need to take significant time off work. I find that:
(a) Mrs Fitzgerald’s other pre-existing conditions would not have prevented her from working as at the date of the hearing;
(b) but for her injuries, she would have worked until the date of the hearing, and into the future;
(c) the aggravation of her low back condition has resulted in a loss of earning capacity of 40 per cent or more as at the date of the hearing and permanently into the future; and
(d) her loss of earning capacity will be productive of financial loss sufficient to satisfy the statutory test.
92Accordingly, I am satisfied that she ought be granted leave in respect of loss of earnings.
93A person who satisfies the loss of earning capacity requirements of s325 of the Act is entitled to bring proceedings for the recovery of damages for both pecuniary loss and pain and suffering damages.[66]
[66] Advanced Wire & Cable v Abdulle [2009] VSCA 170 at paragraph [63]
94In any event, the aggravation also satisfies the narrative test in terms of her pain and suffering consequences. The additional consequences of Mrs Fitzgerald’s injury include:
(a) now constant pain in her lower back, varying in intensity depending on her level of activity;
(b) her sleep is disturbed and she often wakes in the night due to her back pain, causing her to be tired and lethargic during the day;
(c) she has lost significant physical fitness;
(d) she is restricted around the home and has to rely on her husband to do heavier tasks including vacuuming, mopping and making the bed;
(e) although she continues to cook, she no longer finds joy in it due to her pain;
(f) when dressing herself, she needs to be seated to avoid losing balance because of her injury;
(g) she is still able to help with caring for her grandchildren, but is unable to be as active; and
(h) she is unable to drive longer distances and has to adjust her position frequently when she is a passenger to avoid flare-ups.
95Mrs Fitzgerald’s social and recreational activities have also been significantly impacted by her workplace injury. Prior to her injury, she actively participated in Greek dancing, attending weekly. Further, she used to enjoy regular long walks and day trips with her husband. She has not attempted these since her injury.
96The medical evidence establishes that the plaintiff is incapacitated from her previous employment as a manager of a retail shoe store. Mrs Fitzgerald loved her job, including the social aspects. It gave her a sense of purpose, routine and a feeling of productivity. The loss of her ability to work in her chosen profession as a retail manager is a very significant consequence.
Conclusion
97I grant the plaintiff leave to commence proceedings for damages at common law for pain and suffering and loss of earnings.
98I will hear the parties as to the form of final orders and as to costs.
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