Gao v Wintringham Limited
[2016] VCC 801
•17 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03324
| GUIHONG GAO | Plaintiff |
| v | |
| WINTRINGHAM LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 June 2016 | |
DATE OF JUDGMENT: | 17 June 2016 | |
CASE MAY BE CITED AS: | Gao v Wintringham Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 801 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – loss of earning capacity – aged care worker – community nursing home – cooking and cleaning tasks – lower back pain – left leg pain
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Griffin with Mr T Storey | Zaparas Lawyers |
| For the Defendant | Ms J Forbes QC with Ms R Lewis | Hall and Wilcox |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a part-time carer, providing assistance to elderly clients in their homes. The plaintiff claims she suffered injury to her lumbar spine over the course of her employment between December 2008 and March 2012, whilst performing tasks such as cleaning and cooking. As a consequence of her lower back injury, the plaintiff underwent a left L5-S1 microdiscectomy in June 2012. She has not returned to her pre-injury duties, and is currently undertaking clerical duties with the defendant, for approximately three hours per week.
2 Mr N Griffin and Mr T Storey of Counsel appeared for the plaintiff and Ms J Forbes QC and Mr R Lewis of Counsel appeared for the defendant.
3This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application was initially made under sub-sections (a) and (c) of the definition contained in s134AB(37). On the second day of the hearing, Mr Griffin withdrew the plaintiff’s claim under sub-section (c).
4The plaintiff claims she suffered an injury to her lumbar spine, including intervertebral disc damage, with nerve root impingement requiring spinal surgery. The body function said to be impaired is the spine.
5 Before the proceedings commenced, the defendant accepted the plaintiff suffers a serious injury in respect of her pain and suffering consequences. Therefore, I need only determine if the plaintiff suffers loss of earning capacity consequences to the requisite level. The onus is on the plaintiff to satisfy me that:
(a) she has sustained a loss of earning capacity of 40 per cent or more; and
(b)she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.[1]
[1]s134AB(38)(e) of the Act
6Only the plaintiff was called to give evidence and she was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.[2]
[2]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
Relevant background
7The plaintiff is a 44 year old woman. She lives with her husband, two children, aunt, uncle and nephew. She was born in China and after finishing school, completed a bachelor degree in English. The plaintiff then worked for two years as an administrative assistant in a foreign trade office, before working as a newspaper editor for ten years.
8In 2007, the plaintiff moved to Australia with her husband and first born daughter. She had a second daughter in 2009.
9The plaintiff was injured in a motor vehicle accident in mid-2011. She experienced some left leg pain at the time and saw her general practitioner. She had no further treatment and made a full recovery following this accident.[3]
[3]Plaintiff’s Court Book (“PCB”) 3
10Unrelated to this claim, the plaintiff suffered a thyroid condition, which was treated surgically in February 2015. The plaintiff said that she was very lethargic before this surgery, but that she improved after it.[4]
[4]Transcript (“T”) 40, L 10-15
The injury and its consequences
11The plaintiff commenced employment with the defendant in approximately December 2008, as an aged care worker. The defendant runs community nursing homes and also provides aged care home services.
12The plaintiff worked with the defendant for a few months, and then took time off to have her second daughter in 2009. She returned to work in June 2010, and stopped again in September 2010 when her youngest daughter was ill. She resumed work in December 2010, and worked approximately 23 hours per week, and earned approximately $490 gross per week.[5]
[5]PCB 2
13The plaintiff’s work with the defendant involved cleaning and cooking for elderly clients, as well as sometimes helping them with showering, or taking them out shopping.[6]
[6]PCB 2
14The plaintiff claims that she began to experience lower back and left leg pain from early 2012, after completing heavy work in the course of her employment with the defendant.
15On about 16 March 2012, the plaintiff consulted Dr Merian Koh at the Carnegie and Malvern Medical Centre. She complained to Dr Koh about her lower back pain, as well as pain into her left leg. Dr Koh arranged for a CT scan to be performed.
16On 23 March 2012, the plaintiff claimed that she experienced a worsening of her lower back and left leg pain after cleaning, vacuuming and preparing meals at a client’s home.
17The plaintiff returned to her local Medical Centre, and on this occasion commenced seeing Dr Amy Zhou, with whom she could speak fluently in Mandarin.
18In May 2012, the plaintiff said that her lower back pain was so severe that she ceased work.[7]
[7]PCB 4
19On 22 May 2012, Dr Zhou arranged for an MRI scan to be performed of the plaintiff’s lower back. It demonstrated a left posterolateral disc abnormality at L4-5 and L5-S1, with nerve root compression.[8] Dr Zhou then referred the plaintiff to neurosurgeon, Mr John McMahon.
[8]PCB 133
20The plaintiff consulted Mr McMahon in late May 2012. He recommended that she undergo surgery, which was performed on 20 June 2012. The surgery involved a left L5-S1 microdiscectomy and decompression of the left S1 nerve root. The plaintiff reported some improvement in her left leg symptoms and lower back pain after the surgery.[9]
[9]PCB 4
21The plaintiff consulted Mr McMahon on a few occasions after the surgery, but has not seen him since November 2012.
22In late September 2012, the plaintiff commenced a return to work plan with the defendant. As part of this plan, she worked with another colleague, initially for three hours per week. The plaintiff’s hours were gradually increased over time, such that by approximately February 2013 she was back to working 23 hours a week, on modified duties.[10] However, in cross-examination, the plaintiff said she doubted ever getting back to 23 hours per week, as she would often start late, or finish earlier than she was rostered to work.[11]
[10]PCB 59
[11]T 46, L 19-28
23In January 2013, the plaintiff was referred to pain management specialist, Dr Clayton Thomas. Dr Thomas prescribed Gabapentin, and recommended that the plaintiff undergo a rehabilitation program at the Victoria Rehabilitation Centre.
24There appears to have been some miscommunication in relation to the plaintiff being approved to undergo this program, the end result being that she did not undertake it.
25In February 2013, the plaintiff’s solicitors arranged for her to be examined by neurosurgeon, Professor Richard Bittar. Professor Bittar was concerned with the plaintiff’s referred symptoms into her left leg, and recommended a further MRI scan be performed.
26 That MRI scan was subsequently performed on 15 March 2013, and it demonstrated left paramedian disc protrusion at L4-5, with some minimal compression on the L4-5 nerve root.[12]
[12]PCB 134-135
27In March 2013, the plaintiff reduced her work to 20 hours per week.[13]
[13]PCB 42
28In May 2013, the plaintiff suffered a worsening of lower back pain, despite having increased her pain medication. She had one week off work and then returned on modified duties, working 15 hours per week. At that time, Dr Zhou noted “the pain was better while she was not working and worse after she went back to work.”[14]
[14]PCB 42
29In September 2013, the plaintiff was placed on even lighter duties than she had been in May 2013, and continued working 15 hours per week.[15] At about that time the plaintiff attempted to cease her medication, but suffered a further increase in lower back and left leg pain. The pain stopped her working for several weeks, before she resumed work again early in 2014.
[15]PCB 42
30By February 2014, the plaintiff said that she ceased work due to worsening symptoms in her left leg, and in particular her left foot.
31In approximately April 2014, the plaintiff again returned to work, working about three hours, one day a week. In that role, she would provide assistance to a co-worker, who she sat next to at the reception desk. At other times, she would simply catch up with people at her work.[16]
[16]T 31, L 18-27
32Also at that time, the plaintiff requested, via email, that the WorkCover insurer pay for her to undertake an English-language course, to increase her speaking skills. In her email to the insurer, the plaintiff stated that the pain in her left leg and foot was still there, but had become mild.[17] She stated that at that time she went to the pool almost every day for hydrotherapy, and that it was helping her a lot.
[17]Defendant’s Court Book (“DCB”) 73
33The WorkCover insurer approved payment for this English course, and the plaintiff undertook this at Homesglen TAFE for five months in the latter part of 2014. The plaintiff said that she would attend four days a week, four hours each day, and only missed classes occasionally.[18] She said that during the classes she was able to sit and stand as required.[19]
[18]T 31, L 1-3
[19]T 30, L 11-14
34In January 2015, the plaintiff’s weekly payments were terminated, and at the same time, her employment was also formally terminated. However, the defendant then offered a position to the plaintiff, working approximately two to three days a week, assisting with data entry and other basic administrative tasks. The plaintiff has continued to do this work since January 2015.
35The plaintiff said that after working a three hour shift, she comes home and lies down due to increased lower back and left leg pain. She said that she is usually able to attend work on the scheduled day, and thinks that she has missed only one day of work this year.[20] She said that if her pain is especially bad, she can lie down in the staff room, but that this does not happen often.[21]
[20]T 23, L 28-31
[21]T 52, L 17-28
36The plaintiff said that she used to enjoy her work and that she felt cheerful when she was able to work and make money.[22] She said she would like to work more, but she is not sure how she would cope.[23]
[22]T 53, L 27-29
[23]T 53, L 22-26
37In relation to treatment received, the plaintiff commenced physiotherapy shortly after the surgery in 2012. She attended for approximately five visits but then felt that the physiotherapy was aggravating her lower back and left leg symptoms.[24]
[24]PCB 4
38The plaintiff then commenced hydrotherapy, which she did approximately twice a week, from November 2012 until December 2013. Also during that period, the plaintiff undertook Pilates on a weekly basis. When theses formal therapies ended, the plaintiff undertook self-managed hydrotherapy until approximately September 2014.
39The plaintiff continues to consult her general practitioner, Dr Zhou. She is prescribed Mobic and Endep, which she takes at night.[25] The Endep dosage was increased in April 2016.[26] The plaintiff also takes Panadol or Panadeine in the morning, at noon and in the evening (approximately six per day).[27]
[25]T 36, L 16-18
[26]T 37, L 25-29, PCB 33
[27]T 36, L 28-30, PCB 33
40In addition to the medication which the plaintiff takes on a daily basis, she also uses a heat pack, together with Chinese herbal heat patches and herbal medicine.
41The plaintiff complained that she continues to experience lower back pain, most days.[28] However, she said her greatest pain is in her left calf and left foot. She said this pain has worsened in the last 12 months.[29] She said she experiences left leg numbness and pain every day, and the pain increases in the afternoon such that it is very uncomfortable by the evening.[30] At night time, the plaintiff places her left foot in a bowl of hot water to provide her with some pain relief.
[28]PCB 32
[29]PCB 32
[30]PCB 32
42The plaintiff claims that sitting or standing for about 10 minutes aggravates her lower back and left leg pain and she needs to change positions.[31] She said that walking for 10 minutes also results in a worsening of her pain. She said she is able to drive a car for up to 30 minutes.[32]
[31]PCB 33
[32]T 46, L 5-6
43The plaintiff said that the pain disturbs her sleep. She said she finds it difficult to get to sleep, and then often wakes from sharp pain in her lower back or left leg.[33] She said she is only getting three to four hours sleep per night. It was put to her that she told Dr Kornan that she slept five to six hours per night. She said it would sometimes be as much as that, but was usually less.[34]
[33]PCB 34
[34]PCB 34, T 35, L 10-27
44The plaintiff also claimed she has been depressed and anxious from her pain and inability to work. In addition to stresses from her physical injury, the plaintiff also had some anxiety related to her nephew and was referred to a psychologist to help deal with the problems he was having.[35]
[35]T 42, L 4-7
45The plaintiff travels to China to visit her parents on an annual basis for approximately one month. She said her pain is increased from the flight and that it takes her three to four days to recover once she arrives.
Medical evidence
46 All of the doctors accept that the plaintiff’s lower back injury was related to her employment. The issue in dispute between the doctors, is what restrictions the injury imposed upon the plaintiff’s capacity to work.
47 The plaintiff’s general practitioner, Dr Zhou, has provided several medical reports to the plaintiff’s solicitors, the most recent report dated 20 April 2016. Dr Zhou detailed the treatment which the plaintiff received for her injury, including surgical treatment, the referral to Dr Clayton Thomas, and the medication prescribed. Dr Zhou noted that the plaintiff had undergone some training, and that she was undertaking some office work, currently doing two to three hours per week.[36]
[36]PCB 46
48 Dr Zhou considered the plaintiff’s prognosis uncertain. She felt the plaintiff was fit for some alternative duties, provided she was not required to do tasks involving twisting, squatting, pushing, bending and lifting.
49 In a brief supplementary report dated 4 May 2016, Dr Zhou stated that in her opinion the plaintiff could “try to start with four hours per day, three days per week”.[37] She then felt that she could slowly increase her hours if she was coping well.
[37]PCB 48
50 Mr McMahon has not seen the plaintiff since approximately November 2012. At that time, he felt her long-term restrictions would include a lifting restriction of 10 kilograms, and avoidance of repetitive bending. He felt she would be unable to return to her pre-injury duties.[38]
[38]PCB 53
51 Dr Clayton Thomas examined the plaintiff on three occasions, and last saw her in January 2014. At that time, he was of the opinion that the plaintiff had a work capacity, provided it was “back friendly”.[39] He considered her prognosis problematic. He was concerned that post-operative imaging indicated the L5 nerve root was likely to be compromised and it was possible that it could become more problematic for her with time.[40]
[39]PCB 57
[40]PCB 56
52 The plaintiff’s solicitors arranged for her to be examined by neurosurgeon, Professor Richard Bittar, in February 2013 and December 2015.
53 In his initial report, Professor Bittar noted the plaintiff was working her pre-injury hours, on modified duties, with restrictions including the avoidance of significant lifting and bending. He considered that she did not have the capacity to do full pre-injury duties, but that she was able to work modified duties, part-time.[41]
[41]PCB 60
54 Professor Bittar subsequently commented on the MRI scan he recommended in February 2013 and he considered it was consistent with the plaintiff suffering left L5 radiculopathy.[42] He also considered that the MRI demonstrated an annular tear of the intervertebral disc and a minor posterior disc protrusion at L5/S1.[43] He recommended a left L5 nerve sheath injection and if that was successful, then either a pulsed radiofrequency neurotomy be performed, or alternatively, a revision of the microdiscectomy.[44]
[42]PCB 63
[43]PCB 63
[44]PCB 64
55 Professor Bittar re-examined the plaintiff in December 2015. He repeated his recommendation regarding further treatment, including the possibility of a revision microdiscectomy. He considered her prognosis poor and that she was likely to suffer from significant pain and disability into the foreseeable future.
56 Professor Bittar noted that the plaintiff was working three hours per week, with a maximum of five hours per week. He found that she had a capacity to work modified duties, undertaking a very sedentary role, with frequent posture changes. He felt the maximum number of hours that she could work in such a role, in a reliable, reasonable and consistent fashion, would be approximately five to eight hours per week.[45]
[45]PCB 69
57 Ms Forbes criticised Professor Bittar for not explaining the change in his opinion, as to why he considered the plaintiff now only had the capacity to work five to eight hours a week. Mr Griffin said the change in his opinion was consistent with the further MRI scan, and Professor Bittar’s prognosis for the plaintiff, and his recommended treatment. I accept that explanation and am assisted by Professor Bittar’s opinion on the plaintiff’s work capacity.
58 The plaintiff’s solicitors arranged for the plaintiff to be examined by occupational physician, Dr Slesenger, in May 2016. Dr Slesenger examined the plaintiff and considered numerous medical reports, together with radiology. He noted that the plaintiff had a walking tolerance of 10 minutes, a standing tolerance of 10 minutes, a sitting tolerance of 10 minutes, and that she can drive for up to 30 minutes.[46]
[46]PCB 126
59 There were several errors in Dr J Slesenger’s report, including details as to the plaintiff’s return to work efforts, as well as the amount of work the plaintiff is currently undertaking. He initially noted that she works 2 to 3 hours, one day a week. He noted that after three hours of work, “she is in pain and fatigued.”[47]
[47]PCB 118
60 In another part of the report Dr Slesenger stated that the plaintiff works two to three days a week; usually on a Tuesday, but other days if her symptoms are severe. This paragraph in his report does not make sense, and I consider it should say two to three hours a week, instead of two to three days a week. I consider these errors by Dr Slesenger are relatively minor and should be excused given the length of his report.
61 Dr Slesenger was of the opinion that the plaintiff has a theoretical capacity to work with the following restrictions:
· sit and stand as required;
· two hours a day, two non-consecutive days per week;
· vary posture as required;
· no push/pull/carry/lift over five kilograms.
62 Dr Slesenger noted that the plaintiff is currently working in a well-supported environment, but did not consider that her attendance there demonstrated an ability to work on a consistent and reliable basis.[48] However this comment is inconsistent with the plaintiff’s evidence, that she has been relatively consistent in attending work, for the two to three hours she is required each week.
[48]PCB 123
63 The plaintiff’s solicitors also arranged for her to be examined by orthopaedic surgeon, Mr Paul Kierce, in June 2013 and April 2016.
64 In his initial report, Mr Kierce noted that the plaintiff was currently working with another worker. He further noted that the plaintiff had suffered an increase in pain in May 2013 and had been off work for a week, and that when she returned, she was working only 15 hours per week.
65 Mr Kierce was of the opinion that the plaintiff was not fit for pre-injury employment and was only fit for alternate duties, where she could sit or stand as needed and where she did not have to bend, lift, push, pull or be involved in the active care of clients.
66 Mr Kierce re-examined the plaintiff in April 2016. In his report dated 27 April 2016, he expressed an opinion that the plaintiff would be fit for alternative duties working up to 15-20 hours per week.[49]
[49]PCB 95
67 He stated that such employment should not involve prolonged or frequent bending, lifting more than 15 kilograms, and “the use of heavy jarring implements such as picks, shovels and crowbars or the driving of machinery which give rise to vibrations”.[50] These latter restrictions seem puzzling, and appear to have no relevance to the type of work the plaintiff had previously undertaken.
[50]PCB 99
68 Mr Kierce then provided two brief supplementary reports in May 2016, after reviewing reports from Dr Zhou, and Dr Slesenger, as well as possible job descriptions for which the plaintiff may be suited. In the first supplementary report, he stated that in his opinion, the plaintiff is fit to work two hours a day on Mondays, Wednesdays and Fridays. He offered no explanation as to the basis for him changing his opinion from only two weeks earlier, that the plaintiff had a capacity to work 15 to 20 hours a week, to the plaintiff now only being able to work six hours per week. Mr Griffin submitted that the change of opinion is explainable by him considering the reports of Dr Zhou and Dr Slesenger. However, given Mr Kierce is an orthopaedic surgeon, I would not expect him to defer to the opinions of less qualified doctors, without providing an explanation for the change in his opinion. Further, given his previous comment that the plaintiff be restricted from using picks, shovels and crowbars, I am not assisted by Mr Kierce’s opinion.
69 The plaintiff’s solicitors arranged for the plaintiff to be examined by neurologist, Professor Mark Cook, in April 2013 and March 2016. The plaintiff elected not to tender the reports of Professor Cook, but the defendant tendered them in support of its case.[51]
[51]Exhibit 1 – Professor Cook reports dated 27 April 2013, 5 March 2016 and 8 May 2016
70 In his most recent report of March 2016, Professor Cook noted the plaintiff had spasm and tenderness of the lumbar paraspinal muscles, and persisting mild weakness of plant flexion, on the left side, so that she cannot stand on her toes. He considered there was no exaggeration or embellishment of complaints. He noted that her pain persists and is present continuously. He obtained details from the plaintiff as to the pain interfering with her ability to sleep, and noted that her pain is provoked by sustained postures and also walking for a prolonged period.
71 Professor Cook noted that the plaintiff was doing very limited amounts of work, and that she was apprehensive that she would precipitate a deterioration in her condition through excessive activity.
72 In a brief supplementary report dated 8 May 2016, Professor Cook stated that in his opinion it would be reasonable for the plaintiff to try and increase her work to three hours daily. He said this increase “should be made very slowly, over several months.”[52]
[52]Exhibit 1
73 The defendant’s solicitors arranged for the plaintiff to be examined by rheumatologist, Dr Kevin Fraser, in June 2015. At that time, Dr Fraser was of the opinion that the plaintiff was not able to resume her pre-injury duties or any work requiring bending, lifting or prolonged standing/walking. However, he was of the opinion that she was physically fit for full-time alternate duties within the bounds of such restrictions.[53]
[53]DCB 7
74 Dr Fraser was then asked to provide two supplementary reports in April[54] and May[55] 2016, reviewing and commenting on vocational reports and job advertisements. In the supplementary reports, Dr Fraser confirmed his earlier opinion that the plaintiff was fit for full-time work, including jobs as a receptionist, lifestyle assistant and data entry operator. His opinion in the most recent reports was not based upon a re-examination, but rather on his assessment of the plaintiff in June 2015.
[54]DCB 3
[55]DCB 1
75 The defendant’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Michael Baynes, in May 2014. At that time, Dr Baynes was of the opinion that the plaintiff was fit for alternative hours and duties, including working as a community worker, data entry operator, welfare worker and interpreter.[56] He stated that she would be subject to certain restrictions in employment, including no lifting greater than five kilograms and no lifting from below knee height or above shoulder height. He noted that she would need to frequently rotate her posture. At that time, he felt that she was fit to work four hours, three days a week, with a progressive increase to pre-injury hours.
[56]DCB 15
76 Dr Baynes provided a supplementary report dated 2 May 2016, in which he reviewed the vocational assessment report of 30 March 2016. He stated that in his opinion the plaintiff could work as a receptionist and data entry operator, ultimately on a full-time basis. It should also be noted that Dr Baynes did not re-examine the plaintiff for the purpose of providing his updated opinion.
77 The defendant also tendered two previous reports from occupational physician, Dr Louise Barberis, dated 1 October 2012 and 3 July 2013. She noted that the plaintiff had been able to increase her hours to the pre-injury amount of 23 hours per week by approximately December 2012, but that she, shortly thereafter, reported an increase in left leg pain, such that her hours were reduced back to 20 hours per week. It was noted the plaintiff had ongoing problems and her hours were then reduced to 15 hours per week, which she was doing as at July 2013.
Permanent
78 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[57] I am satisfied that the plaintiff’s injuries and the consequences which flow are permanent. She has had a laminectomy performed. She takes painkilling medication on an ongoing basis. Her pain levels have increased in the past year.
[57]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
79 Having thus accepted that the injury is permanent, I must now consider whether the plaintiff’s lower back injury and impairment satisfy the requisite loss of earning capacity test.
Loss of earning capacity
80 To succeed in her application, the plaintiff has the onus of satisfying me that as at the date of hearing, she has sustained a loss of earning capacity of 40 per cent or more; and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In assessing this, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
81 The definition is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[58]
[58]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
82 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with her pre-injury earning capacity. To determine her pre-injury earning capacity I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had she not suffered the injury:
(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[59]
[59]s134AB(38)(f)
83 It was agreed that in the financial year ending 30 June 2012, the plaintiff earned $24,231 gross. This equated to $466.00 gross per week. However, as the plaintiff had ceased work in approximately May 2012, that amount was not based on a full year of without injury earnings.
84 It was agreed the plaintiff earned $21.30 per hour, for 23 hours per week. This equated to a gross weekly income of $490 per week. I consider this to be the figure which most fairly reflects the plaintiff’s pre-injury earning capacity.
85 Accepting this sum as her pre-injury earning capacity, I must be satisfied the plaintiff is incapable of earning no more than $294.00 per week, and that such a restriction on her earning capacity will be permanent.
86 The doctors all agree that the plaintiff cannot return to her pre-injury work. They also agree that she should avoid heavy bending and lifting, and that she would need to be able to sit and stand as needed.
87 The plaintiff underwent an English course in 2014, which resulted in some improvement in her spoken English. However it is not improved sufficiently for me to be satisfied that she could work as a receptionist. I accept her evidence that her spoken English is limited, especially when speaking by telephone and with difficult or demanding clients.[60]
[60]T21, L12-26
88 Given the plaintiff’s limited English speaking skills, and considering her physical restrictions, I accept that suitable employment for the plaintiff would include working as a data entry operator and a lifestyle assistant.
89 The key issue in dispute, and the matter for me to decide, is the number of hours the plaintiff could work in such suitable employment, and whether or not the income derived from such employment satisfies the loss of earning capacity test.
90 I accept the plaintiff as a reliable witness who made no attempt, in my assessment, to exaggerate her symptoms or mislead the court as to the extent to which her ongoing lower back and left leg pain impacts upon her.
91 I accept that the plaintiff’s lower back and left leg pain occur on a daily basis, and that her left leg and left foot pain worsen in the afternoon. I accept her evidence that the symptoms have worsened in the last year. I also accept the plaintiff’s evidence that after working three hours, on just one day a week, she comes home and lies down due to increased lower back and left leg pain.
92 The plaintiff’s return to work in a relatively short time after the surgery, demonstrated her desire and willingness to continue working. She reduced her hours over a period of time, due to increasing pain. She initiated the English course, to enhance her prospects of re-employment. She would like to work more hours, subject to her pain levels.
93 The difficulty for me, is that the plaintiff has not been able to test her desire to work additional hours, as there is no more work available with the defendant. I therefore must assess this case on her theoretical capacity to work these extra hours, taking into account the medical opinions, and the plaintiff’s evidence of daily and increasing pain.
94 I consider the opinions of Dr Zhou and Professor Cook are unrealistic, given the plaintiff’s complaints of pain. I do not consider it realistic for her to attend work on consecutive days. I appreciate that Dr Zhou knows the plaintiff best, having treated her consistently since May 2012. I consider her optimism for the plaintiff increasing her hours of work, overlooks the plaintiff’s prior difficulties when working 15 hours per week. At that time, Dr Zhou noted that the plaintiff suffered increased pain when working and that she was better when not working. Given my acceptance of the plaintiff’s evidence that she is now worse, I am not satisfied that she could work at the level proposed by Dr Zhou and Professor Cook.
95 I am not assisted by the opinions of Dr Fraser or Dr Bain, as they have not examined the plaintiff for one year and two years respectively, during which time I accept the plaintiff’s condition has worsened.
96 I am most assisted by the opinions of Professor Bittar and Dr Slesenger, as I consider they most fairly represent the plaintiff’s capacity to do some extra work, but not on consecutive days.
97 I am satisfied that the plaintiff’s lower back and left leg pain would make it very difficult for the plaintiff to obtain and hold down regular employment. I consider the plaintiff’s pain levels, its interference with her sleep, and her need to sit and stand at regular intervals, would make it difficult for her to be a reliable employee. At present she is relatively reliable, as she only works one day a week. However, I am of the opinion that if she increased her hours and days, her pain levels would most likely increase and she would then become less reliable. My opinion in this regard is supported by the comments of Professor Bittar and Dr Slesenger.
98 Considering all of the evidence, I am satisfied that the maximum the plaintiff could work in suitable employment, is three hours per day, on alternate weekdays. Her current rate of $21.30 per hour, for nine hours a week, equates to a gross weekly wage of $191.70
99 In these circumstance, I am satisfied the plaintiff is currently suffering the requisite loss of 40 per cent. As there is no evidence her condition will improve, and I accept that her prognosis is poor, I am also satisfied that this incapacity will remain for the future and be permanent.
100 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the ‘very considerable’ test.[61] Given my acceptance that the plaintiff’s injury restricts her to only nine hours of work each week, the pecuniary disadvantage to her is so great, that I consider her loss of earning capacity can be described as very considerable.
[61]s134AB(38)(c)
Orders
101 I am satisfied that the plaintiff suffers a serious injury to her lumbar spine, arising as a consequence of her employment with the defendant and the consequences are such that she should be granted leave to commence proceedings for pecuniary loss damages.
102 I shall make the consequent orders.
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