Fletcher v George Weston Foods Limited
[2014] VCC 1396
•28 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00577
| JULIE ANNE FLETCHER | Plaintiff |
| v | |
| GEORGE WESTON FOODS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2014 | |
DATE OF JUDGMENT: | 28 August 2014 | |
CASE MAY BE CITED AS: | Fletcher v George Weston Foods Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1396 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine/cervical spine/shoulder – psychiatric injury – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227
Judgment: Leave granted to the plaintiff to issue proceedings at common law for damages for both pain and suffering and loss of earning capacity on account of injuries suffered in the course of her employment with the defendant between 2004 and 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W Harrison QC with Ms S A Lean | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms R L Kaye | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff throughout the course of her employment with the defendant between 2004 and November 2008.
2 The plaintiff alleges that she suffered injuries to her thoracic spine, cervical spine and right shoulder due to the nature of her employment between the years 2004 and November 2008 as a result of her repetitive duties, principally in connection with data-entry work.
3 In order to obtain the necessary leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.
4 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.
5 The plaintiff brings this application pursuant to clause (a); alternatively, clause (c) 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;
…
(c)permanent severe mental, or permanent severe behavioural disturbance or disorder.”
6 The body function relied upon in this application pursuant to paragraph (a) is the whole spine; alternatively, the right shoulder.
7 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
8 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
9 The plaintiff relied upon three affidavits and gave viva voce evidence. She was cross-examined. She also relied on the evidence of her mother, Barbara Edith May Gleeson, sworn 21 July 2014; her husband, William Rogan Fletcher, sworn 21 July 2014; a former workmate, Ms Juanita Santavenere, sworn 22 July 2014, and her daughter, Melanie Fletcher, sworn 29 July 2014. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Work-related physical injury
10 The plaintiff is aged fifty-three, having been born in May 1959. She lives with her husband and two daughters, and completed secondary school to Year 9.
11 After leaving school, she completed a receptionist course, and then worked for a time in that capacity.
12 The plaintiff then commenced work for the defendant or its predecessor in title in approximately 1976. She had various times off work whilst having her family and in June 1996, she returned to the employer on a full-time permanent basis, working in office administration and data entry.
13 The plaintiff first noticed a niggling pain in her right shoulder and neck area in late 2004. Over time, it became worse and she sought treatment from her general practitioner, Dr Brough. She alleges the pain was aggravated by her data-entry duties using the numeric keyboard at work.
14 Dr Brough referred her to a physiotherapist, Ms Shelley Matthews, who provided some relief “… but the pain always came back”.[3]
[3]Exhibit A – plaintiff’s affidavit sworn 14 October 2011 – paragraph 9
15 Thereafter, the plaintiff remained in employment until November 2008. In the latter twelve months or so, there was less data-entry work and more receptionist work. Because of rumours of retrenchment packages being offered, she “soldiered on” until November 2008. There were many times prior to then that she considered resigning, because she was really struggling with the pain. However, she hung on.”[4]
[4]Exhibit A – plaintiff’s affidavit sworn 14 October 2011 – paragraphs 26-27
16 In the meantime, apart from physiotherapy treatment from Shelley Matthews, Dr Brough referred the plaintiff to Kirsty Prosser, an osteopath,[5] Dr Bruce Kinloch, consultant physician in pain medicine and rehabilitation,[6] and Dr Steven Jensen, specialist in musculoskeletal pain medicine.[7]
[5]Exhibit T
[6]Exhibit S
[7]Exhibit R
17 In the meantime, the plaintiff only claimed medical treatment expenses from her employer.[8]
[8]Exhibit A – paragraph 26
18 At the hearing, defence Counsel submitted that the defendant had accepted liability for a temporary aggravation of underlying cervical degeneration but that any work-related aggravation was not still subsisting at the time of hearing. In this regard, Counsel relied heavily on the medical reports of Dr Mary Wyatt, occupational physician, in reports dated 16 July 2011 and 4 April 2013,[9] and also Dr Gary Davison, occupational physician, in a report dated 3 April 2014.[10]
[9]Exhibit 1
[10]Exhibit 2
19 Dr Wyatt, in her first report, took a relevant history of pain experience, and working up until November of 2008. Thereafter, the history recited:
“After ceasing work, Ms Fletcher says she ‘fell in a heap’. She describes ongoing pain and says the pain has affected her life generally. She says her condition did not improve after ceasing work.”[11]
[11]Exhibit 1 – Defendant’s Court Book (“DCB”) 9
20 Dr Wyatt also took a history that the plaintiff did a pain management course in 2009 via The Royal Melbourne Hospital but, unfortunately, it had not made a material difference to her condition.[12]
[12]Exhibit 1 – DCB 9
21 The plaintiff continued to take analgesics and in late 2010, she was placed on antidepressants.
22 As at July 2011, the plaintiff had not worked since her redundancy and had not been looking for work because of the ongoing pain.
23 Further, the plaintiff reported the severity of pain being 6 to 7 out of 10 most of the time, increasing to 9 out of 10 at its worst and at 6 out of 10 at best.[13] Aggravating factors were said to include ironing or similar tasks using the right arm.
[13]Exhibit 1 – DCB 9
24 In terms of sleep:
“… she wakes a few times in the night and finds it sore to lie on her right side.”[14]
[14]Exhibit 1 – DCB 9
25 Further:
“At home she is able to undertake domestic activities provided she spaces them out over a few hours. She does some cooking, tidying up, washing and folding washing but does not hang out the washing. She cannot do the vacuuming, mopping or ironing and these tasks are done by her husband or children. Ms Fletcher can do the shopping, provided she has help in carrying in the shopping bags. She is able to drive her car.”[15]
[15]Exhibit 1 – DCB 9
26 In terms of medication, the plaintiff was taking OxyContin, 10 milligrams in the morning and 5 milligrams at night, and OxyNorm as needed. She had been prescribed Setrona, an antidepressant, for the last eight to nine months.[16]
[16]Exhibit 1 – DCB 9
27 On examination, Dr Wyatt noted tenderness generally over the cervical spine on the right, with further tenderness generally around the right shoulder girdle. This extended generally around the right shoulder, through the right upper arm.[17]
[17]Exhibit 1 – DCB 10
28 Dr Wyatt considered the x-ray and MRI changes to be essentially unremarkable, although the MRI scan showed some disc bulges without foraminal or cord compromise.[18]
[18]Exhibit 1 – DCB 10
29 Dr Wyatt considered that the plaintiff’s problem had been accepted as a work-related condition in 2006 and that the repetitive nature of her duties ceased about that time. She considered that if the data entry and repetitive work were contributing to her problem (then existing), there would have been significant improvement in her condition over time with not doing that job.[19] She considered that the presentation was not a –
“… straightforward physical problem arising from the nature of her job. The fact that she did her normal duties until a redundancy package was accepted in 2008 and has now been certified totally unfit for work implies other factors are playing a role.”[20]
[19]Exhibit 1 – DCB 11
[20]Exhibit 1 – DCB 11
30 Dr Wyatt then stated:
“From a medical perspective, it is reasonable to accept Ms Fletcher has had a muscular dysfunction problem in the right shoulder girdle. It is also reasonable to accept that the general nature of her data entry duties would have contributed to the level of symptoms she had at the time she was doing that job.”[21]
[21]Exhibit 1 – DCB 11
31 Dr Wyatt goes on to assert:
“… However, it is now about five years since she did the repetitive data entry, and not far off three years since she worked. I believe any work contribution has now ceased.”[22]
[22]Exhibit 1 – DCB 11
32 Further, she stated that the plaintiff’s –
“… current condition presents to be a constitutionally-based problem.”[23]
[23]Exhibit 1 – DCB 12
33 Finally, Dr Wyatt considered that the plaintiff was probably fit to do her 2008 duties from a physical perspective.[24]
[24]Exhibit 1 – DCB 12
34 I infer from Dr Wyatt’s opinion that the work-related condition was essentially “muscular dysfunction” and not a degenerative discal problem. Hence, one imagines, this justifies the opinion that her condition should have improved.
35 The plaintiff was seen again by Dr Wyatt on 4 April 2013. The history on this occasion was that the problem had gradually deteriorated and she described increasing pain in her neck and right shoulder girdle. At that time, she was having monthly remedial massage, which was said to take the edge off her pain for about four to five days. Current medication was OxyContin, 5 milligrams twice a day, which took the edge off her pain but overall was not really helping. She had been taking 10 milligrams but because of drowsiness, it was reduced to 5 milligrams twice a day. This was supplemented by taking one to two OxyContin a week when the pain was worse. She had also been placed on Pristiq, an antidepressant, for the last eight months. In the meantime, she had applied for one job but was unsuccessful and was looking at the newspaper weekly for jobs but had not applied for any.[25]
[25]Exhibit 1 – DCB 16
36 Dr Wyatt considered that scans and x-rays of the spine showed:
“… age-related changes, without evidence of nerve root compression.”[26]
[26]Exhibit 1 – DCB 17
37 Dr Wyatt considered that an ultrasound of the plaintiff’s shoulder showing a partial-thickness tear was not clinically significant.[27] Her opinion at this time was that there was no clinical or radiological investigation that suggested a severe or substantial problem and the fact that her condition advisedly worsened suggested that either there were constitutional factors as a cause of her problem or that non-medical factors are playing a substantial role.[28]
[27]Exhibit 1 – DCB 19
[28]Exhibit 1 – DCB 19
38 When Dr Davison saw the plaintiff on 3 April 2014, he took a consistent history with that of Dr Wyatt. He noted the plaintiff was –
“… independent in respect of the necessary activities of daily living but had noted that she cannot do her bras up behind her back or use a hairdryer for prolonged periods in the right arm without increased discomfort. Her home activities include cooking and laundry tasks as well as limited bathroom cleaning. Her husband does the vacuuming and the mopping. He also maintains the lawns and gardens. … .”[29]
[29]Exhibit 2 – DCB 20d
39 Medical treatment consisted of OxyNorm and OxyContin, and she was having osteopathy at the present time.[30]
[30]Exhibit 2 – DCB 20d
40 On examination, Dr Davison noted the plaintiff –
“… was a pleasant and cooperative historian. … .”[31]
[31]Exhibit 2 – DCB 20d
41 In respect of the radiological investigations, Dr Davison considered that –
“… essentially no objective abnormality has been detected. The changes noted on the MRI scan are unlikely to be of any clinical significance.”[32]
[32]Exhibit 2 – DCB 20f
42 Dr Davison’s diagnosis was one of –
“… a chronic myofascial pain syndrome involving the right neck and shoulder girdle regions. The claimant’s initial injury may well have been a posturally-mediated myofascial strain but this has developed into a chronic regional pain syndrome without sympathetic nervous system mediation.
…
The prognosis for recovery after such a prolonged period of symptomatology is poor. The claimant will require ongoing treatment. … .”[33]
[33]Exhibit 2 – DCB 20f
43 In terms of her physical capacity for employment, Dr Davison thought that she should have the same capacity that she had when she accepted a voluntary redundancy in 2008, as “there has been no change in her condition”.[34]
[34]Exhibit 2 – DCB 20f
44 Further, Dr Davison did not consider that she had a presently work-related injury, because there should have been recovery on weekends and annual leave and “certainly there should have been resolution following cessation of work”.[35] Once again, I would infer that Dr Davison is of the opinion that the condition at presentation was essentially constitutional but that the prognosis for improvement was poor. He also considered that any work relationship was only temporary.
[35]Exhibit 2 – DCB 20g
45 These two opinions are to be contrasted with that given by rheumatologist, Dr Roy Karna, to the defendant in a report dated 5 April 2011.[36] Dr Karna was examining the plaintiff on behalf of the defendant for the purpose of a “dual impairment assessment” with respect to her neck and right shoulder.[37] He stated:
“She has an accepted neck injury, but the right shoulder liability is to be assessed. The date of injury is February 2009.”[38]
[36]Exhibit N
[37]Exhibit N – Plaintiff’s Court Book (“PCB”) 70n
[38]Exhibit N – PCB 70n
46 Dr Karna’s relevant history was as follows:
“A claim was instituted in February 2005, however it was perhaps up to six months prior to that she started to notice pain in the right cervicotrapezius ridge and along the right scapular (sic) and the right axilla and the right upper arm region. Her work entailed her doing 85% of the time on a keyboard where there was some postural demands and the remainder of the time she did customer service.”[39]
[39]Exhibit 1 – PCB 70o
47 Dr Karna noted that the plaintiff was referred to Dr Steven Jensen, musculoskeletal physician, and that she had been placed on Tramal, where the dose gradually escalated from 50 milligrams a day to 200 milligrams a day, and subsequent to that, she continued to take OxyContin and OxyNorm. He also noted that she had seen a psychologist because of depressive issues and had been on an antidepressant. He also noted she had taken very little time off work but simply did less data-entry duties until November 2008, when she took a retrenchment package. Up until that time, she had not worked in any other remunerative capacity. Her current medications included OxyContin, 10 milligrams in the morning and 5 milligrams at night, and Endone, 5 milligrams for top-up pain.[40]
[40]Exhibit 1 – PCB 70o
48 On examination, Dr Karna noted tenderness to palpation along the right cervicotrapezius ridge with tender points and myofascial-type radiation of pain. She also complained of pain in the right scapular region and in the right axillary skinfold. Her neck movements were restricted in right lateral flexion and right lateral rotation by 25 per cent, and her right shoulder movements were restricted in the last 20 to 30 degrees of abduction and forward elevation. Relevantly:
“She had no definitive features of capsulitis or impingement [in the shoulder].”[41]
[41]Exhibit 1 – PCB 70p
49 Dr Karna reviewed an MRI scan of the cervical spine taken in 2007 which showed:
“Only minor disc bulging and dessication (sic) at the C5-6, 6-7 region. No neural compromise was noted.”[42]
[42]Exhibit 1 – PCB 70p
50 Dr Karna’s impression at that time was that the plaintiff had developed right cervicotrapezius and right periscapular discomfort in the general course of her work doing data-entry duties. He accepted the notion that:
“… she has cervical pain and cervical referred pain, albeit without evidence of radiculopathy. … .”[43]
[43]Exhibit 1 – PCB 70p
51 Consistent with the plaintiff’s treating medico-legal practitioners, Dr Karna did not believe that the plaintiff was suffering from a specific right shoulder injury but rather, the discomfort therein was referred pain from the cervical spine. He also agreed with the plaintiff’s treating medico-legal practitioners that the diagnosis was one of –
“… cervical referred pain due to cervical degenerative disease/cervical spondylosis aggravated in the work context with referred pain, but no true radiculopathy. … .”[44]
[44]Exhibit 1 – PCB 70p
52 Dr Karna also considered there was a superadded depressive illness, “which might have an impact on her prognosis”.[45]
[45]Exhibit 1 – PCB 70q
53 Thereafter, he considered that she had a 5 per cent permanent Whole Person Impairment referrable to the accepted cervical injury.[46]
[46]Exhibit 1 – PCB 70q
54 This opinion is in a clear contrast to the defendant’s other two medico-legal examiners referred to above. Interestingly, and in my view, tellingly, it aligns neatly with the plaintiff’s treating specialists, Dr S Jensen, Mr B Kinloch, her treating general practitioner, Dr Brough, and medico-legal orthopaedic surgeon, Mr Russell Miller, who reported to the plaintiff’s solicitors on 27 May 2013 and 30 May 2014.[47]
[47]Exhibit K
55 Dr Steven Jensen, specialist is musculoskeletal pain medicine, provided nine reports between 24 January 2007 and 24 November 2011.[48] In his first report, he noted that the plaintiff was still working full time but doing administrative and reception work, as distinct from data entry. She reported a history of the gradual onset of pain in the region of her right scapula since approximately 2004. The pain becomes worse as the day goes on. She felt she was getting worse. On examination, he noted:
“I was exactly able to reproduce her pain by cervical spine rotation left and lateral flexion left as well as by quadrant test bilaterally. Extension seemed to ease her pain. To palpation there was tenderness in the lower cervical region maximal at C5-6 but also at C4-5 and C6-7.
I did assess her shoulder and she displayed a full range of motion with provocation tests for intrinsic shoulder pathology negative. She had negative impingement signs.”[49]
[48]Exhibit R
[49]Exhibit R – PCB 101
56 Dr Jensen considered that the history and examination were consistent with a cervical spine referred problem. He stated:
“… Certainly on her pain referral diagrams her pattern is of a C6-7 or C5‑6 problem.”[50]
[50]Exhibit R – PCB 101
57 In his third report dated 4 June 2007, Dr Jensen considered that the source of the pain was “probably discogenic”.[51] He was treating her with Tramadol, 100 milligrams, plus a further 50 milligrams of Tramadol as required. He also referred her to a rehabilitation physiotherapist.[52]
[51]Exhibit R – PCB 103
[52]Exhibit R – PCB 103
58 Thereafter, on 15 October 2007, Dr Jensen reported that the plaintiff’s chronic pain state had been finally accepted by her and that she accepted there was no definitive cure. At that stage, she was coping with her work duties and almost all of her household duties, but ironing was a source of aggravation. At that stage, he considered that she would be continuing on Tramal at the present dose indefinitely.[53]
[53]Exhibit R – PCB 107
59 In his fourth report dated 7 July 2010, Dr Jensen considered the plaintiff was suffering from:
“… mechanical cervical spine dysfunction with referred pain to the right scapular region and shoulder girdle.
…
The pain distribution with pain down the medial border of the scapula and to the inferior scapular angle is consistent with a C6-7 distribution of her pain as per published studies of pain referral zones from the various levels in the cervical spine.
… I could only conclude that her pain was most likely due to cervical intervertebral disc pathology. … .
I did not think the reported T2-3 disc protrusion on MRI scan was clinically significant.”[54]
[54]Exhibit R – PCB 109
60 Dr Jensen’s prognosis at that stage was that she would require ongoing analgesic medication and she would need to continue with her own self-management program.[55] Also, he believed she would be capable of the administrative and reception work that she was doing in 2007, which was essentially full-time reception work.[56]
[55]Exhibit R – PCB 110
[56]Exhibit R – PCB 111
61 Thereafter, he examined the plaintiff again on 24 October 2011. He noted at that time, that she had ceased work in November 2008 upon taking a redundancy package. He also noted that she felt she could not cope with the duties any more. On that occasion, as to work relationship, he reported:
“In the absence of any alternative causes and given that the history that her work seemed to be an aggravating factor for her neck and shoulder girdle pain and noting the prolonged static postures that were required during the course of her employment, I could only conclude that on the balance of probabilities her employment was a significant contributing factor to her neck problems.”[57]
[57]Exhibit R – PCB 114
62 He also considered that the most likely remaining source of such chronic pain would be one or more of the cervical discs. He also considered that she had no capacity for her pre-November 2008 work. However, he thought that she may be capable of some work of a general nature.[58]
[58]Exhibit R – PCB 114
63 The opinions of Dr Jensen and Dr Karna seem to align materially with those of the treating general practitioner, Dr Helen Brough, who has provided eight reports between 18 February 2005 and 16 June 2014.[59]
[59]Exhibit P
64 In the first report, Dr Brough referred the plaintiff for physiotherapy for pain in the right thoracic/scapular area which seemed to be muscular. She thought it was probably related to posture at that time. At that point, brufen was prescribed, 400 milligrams once per day with food.[60]
[60]Exhibit P – PCB 82
65 Then, on 20 November 2006, Dr Brough referred the plaintiff to Dr Steven Jensen for pain in the upper thoracic and lower cervical spine which had been present for about eighteen months. Dr Brough told Dr Jensen a variety of therapies had been tried without response. She also noted that the plaintiff had recently made a WorkCover claim because “it is aggravated by work – especially data entry”.[61]
[61]Exhibit P – PCB 83
66 By 28 October 2010, Dr Brough recorded that the initial pain developed in a setting of prolonged keyboard work, doing data entry. She also recorded that although the pain was always present, it seemed to be worse after working at the desk for several hours and there were no other precipitating factors.[62] By this time, Dr Brough considered the plaintiff had a chronic pain state and a Major Depression, and she had recently begun antidepressant medication. At that stage, she had been on long-term analgesics – initially Tramadol, and now Oxycodone tablets. It was noted that she had continued to work for several years at her usual duties, even with the pain, but that she had stopped working for reasons “not associated with the pain”.[63] She thought at that stage, the depression was currently in remission but future stress could precipitate a relapse. Dr Brough did not consider the plaintiff could return to data-entry work and was not currently fit for any work. She said:
“… Her pain is present constantly and would limit her performance. … .”[64]
[62]Exhibit P – PCB 84
[63]Exhibit P – PCB 84
[64]Exhibit P – PCB 85
67 On 16 January 2012, Dr Brough recorded the plaintiff found it hard to perform her usual home responsibilities of cleaning and cooking and she had often described difficulty with personal care, for example showering.[65] She did not think the plaintiff would be able to be employed in any situation at the present time based on “an extrapolation of her limited activity at home”.[66]
[65]Exhibit P – PCB 87
[66]Exhibit P – PCB 87
68 Importantly, she stated further:
“… I have started discussing with her the type of task she might be able to perform but believe that formal employment is not possible. I do not see this situation changing in the foreseeable future.”[67]
[67]Exhibit P – PCB 87
69 On 24 August 2012, Dr Brough reported in a similar vein with respect to capacity for work, and noted the plaintiff was still attending the practice monthly for prescription of analgesics. She was also now trialling Gabapentin at Dr Thomas’ recommendation.[68]
[68]Exhibit P – PCB 88
70 By 14 June 2013, Dr Brough diagnosed a chronic pain state which was thought to be precipitated by cervical disc degeneration pain aggravated by prolonged data entry at work. She remained depressed.[69]
[69]Exhibit P – PCB 90
71 Dr Brough commented:
“… She remains depressed and distressed by the presence of pain. This has been a long standing situation. I do not foresee any change occurring.”[70]
[70]Exhibit P – PCB 90
72 Thereafter, Dr Brough commented:
“She currently does not have any capacity for work. … .”[71]
[71]Exhibit P – PCB 90
73 Finally, on 16 June 2014, Dr Brough recorded:
“… She is being treated for Major Depression. Her day to day activities are restricted by the pain. She remains socially isolated from family, friends and society more generally due to the constant awareness of pain and difficulty doing normal activities. She remains unemployed. She has been forced to sell her home in Pascoe Vale and move to Craigieburn in part due to her restricted income.
She has been actively seeking to change her situation in the past 12 months. She has tried a number of therapists and medication changes. None of these have made any impact on her experience of pain.”[72]
[72]Exhibit P – PCB 90
74 The prognosis was that the plaintiff would continue to have pain for the foreseeable future. Dr Brough hoped that her depression and ability to cope with the pain would continue to improve over time; however, she thought that it was not a likely outcome.[73]
[73]Exhibit P – PCB 91
Conclusion
75 As commented to counsel during final addresses, I found the plaintiff to be honest and straightforward under searching and methodical cross-examination. Further, I accept the diagnosis of the treating musculoskeletal pain specialist, Dr Jensen, that there is a C6-7 or C5-6 degeneration with referred pain into the right shoulder and upper arm. I also accept that there is no intrinsic shoulder pathology being proved. I also accept his diagnosis that the chronic right-sided neck and shoulder-girdle pain is work related, either by way of material contribution to the underlying condition or by permanent aggravation thereof, such that there has been no symptomatic cessation of the work-related causation and/or aggravation.
76 In the setting of the chronic pain as documented above, it is not surprising that the plaintiff developed a severe depression some time in late 2010 and subsisting to the present time, albeit subject to remission from time to time.
77
In my view, the daily production of symptoms from this work-related degenerative condition is such that the consequences can be described as
“more than significant or marked and certainly at least very considerable”. Apart from the chronic pain, there is the daily need for strong analgesic medication and significant interference with daily activities.[74]
[74]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 and Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
78 Given that I find the plaintiff is, at the date of hearing, suffering from a work-related degenerative discal injury in the cervical spine, it appears to me that the “disentangling” that is required to be demonstrated by the plaintiff as set out in Papamanos v Commonwealth Bank of Australia[75] is modified by the line of authority established by Jayatilake v Toyota Motor Corporation Australia Ltd[76] and Meadows v Lichmore Pty Ltd.[77] As such, I consider that the underlying work-related physical injury is sufficiently responsible for the symptoms complained of to amount to a “serious injury” as already described.
[75][2014] VSCA 167 at paragraph 47
[76](2008) 20 VR 605 at paragraphs 24-29
[77][2013] VSCA 201 at paragraphs 19-22
Work-related severe mental disorder
79 It is clear that a number of medico-legal examiners consider that the plaintiff is now suffering from a Chronic Pain Syndrome, either with or without the underlying physical injury still playing a part. What is clear, nonetheless, is that the depressive illness that was manifest from late 2010 onwards is clearly causally related to the pain emanating from the cervical spine and would thus satisfy the causation requirements stipulated in Veljanovska v Socobell Oem Pty Ltd.[78] Although not strictly necessary to decide, I consider that, on the balance of probabilities, the consequences flowing from the work-related mental disorder probably amount to “severe” as referred to in the case of Mobilio v Balliotis.[79]
[78][2005] VSCA 227
[79]Supra
Loss of earning capacity
80 The plaintiff was performing reception-type work in November 2008 with a minimum of data-entry work by that stage. She has applied for at least two further positions as a receptionist in April of this year, requiring 35 hours per week attendance. All medico-legal examiners consider that the plaintiff is capable of suitable work such as reception work on either a part-time or full-time basis, with the exception of the treating general practitioner, Dr Brough.
81 In cross-examination, it was put to the plaintiff that if she had applied for the full-time reception jobs in April of this year, she must have considered herself able to perform the duties, to which she replied:
“On days I did.”[80]
[80]T24, L4
82 In re-examination, she explained this statement further:
A:“Well, I have good days and bad days. On a good day is normally when I go through the jobs and think, yes, I can do that. And then reality kicks in a few days or whatever later, and then I realise that, no, I can’t do it.
Q:Are you able to assist His Honour in terms of how many days are good days and how many days are bad days, or what the sort of relationship is, or ---?---
A:Well, lately there’s more bad days than good. Maybe about four days out of the week.”[81]
[81]T30, L14-24
83 On one view of this evidence, one could infer the plaintiff is capable of perhaps working three days per week, which in a five-day week would be 60 per cent of the time. This inference would clearly put this case on the borderline for proving the necessary 40 per cent loss of earning capacity as per statute.[82]
[82]Section 134AB(38)(e), (f) and (g) of the Act
84 Although this case is clearly on the borderline, having found that the plaintiff is a witness of truth, I am more inclined to accept this latter statement of hers than to reject it. I am also inclined to the view that even if she could work for three days per week, I am not satisfied that she would be able to give due attention to an employer given the daily ingestion of analgesia and the need for rest breaks as postulated by the various medico-legal examiners. There is also the evidence that she has tried to work for some weeks at a real estate agency in recent times but has been forced to abandon the work due to the pain that she suffered.
85 In all the circumstances, I consider that the pain and the consequences from the physically-based work-related injury to the cervical spine precludes the plaintiff from earning 60 per cent of pre-injury average weekly earnings according to the formula laid down by statute and, were it necessary to so find, I consider that the same result would ensue from the severe mental disturbance or disorder represented by a Chronic Pain Syndrome generated by the underlying physical injury.
86 Accordingly, leave will be granted to the plaintiff to issue proceedings at common law for damages for both pain and suffering and loss of earning capacity on account of injuries suffered in the course of her employment with the defendant between 2004 and 2008.
87 I will hear the parties as to any consequential orders.
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