Guo v Victorian WorkCover Authority
[2024] VCC 123
•23 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-03220
| LINQI GUO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2024 | |
DATE OF JUDGMENT: | 23 February 2024 | |
CASE MAY BE CITED AS: | Guo v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 123 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the neck – whether pain and suffering consequences are “serious” under the Act – whether the plaintiff has satisfied the test for loss of earning capacity as a result of the injury – credit of the plaintiff – surveillance film – suitable employment opportunities
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering and loss of earning capacity arising out of the physical injury to her neck in the course of her employment between 2016 and 2021 at Wagstaff abattoirs.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr L Howe | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
1By Originating Motion dated 20 June 2023, the plaintiff has applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages suffered by her arising from her employment with Wagstaff abattoirs. The plaintiff alleges she was injured during the course of her employment between 2016 and 2021, when she ceased work.
2The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of injury to her at work. Initially, by a document entitled Particulars of Injury dated 7 October 2023, the plaintiff was seeking leave to bring proceedings based on a permanent impairment and loss of function of her spine and permanent loss of function to her right shoulder. The plaintiff also sought a serious injury certificate for permanent severe mental and permanent severe behavioural disturbance or disorder as a result of the workplace injury.
3At the commencement of this proceeding, Mr Mighell KC, for the plaintiff, stated the basis for the application was an injury to the cervical spine and a lower back condition, making up a total impairment of the spine. The plaintiff did not seek serious injury certification in respect to any injury to her right shoulder or any severe mental or permanent severe behavioural disturbance arising from her work.
4The plaintiff gave evidence and was cross-examined.
5The plaintiff tendered the following evidence:
· Exhibit “A” – Plaintiff’s Amended Court Book (“PCB”) pages 5 to 49 inclusive, pages 53 to 99 inclusive, and pages 102-104 inclusive.
6The defendant tendered the following evidence:
· Exhibit 1 – Defendant’s Amended Court Book (“DCB”) pages 3 to 53 inclusive and pages 87 to 197 inclusive.
· Exhibit 2 – DVD of video surveillance of the plaintiff dated 31 May 2023.
· Exhibit 3 – DVD of video surveillance of the plaintiff dated 1 June 2023.
· Exhibit 4 – DVD of video surveillance of the plaintiff dated 24 and 25 January 2024.
7Mr McKenzie, on behalf of the defendant, conceded that there was a compensable injury to the plaintiff’s neck as a result of her employment and that the plaintiff was still in receipt of weekly payments of compensation.
8Mr McKenzie identified the following issues to be determined in this application:
(a) the nature and extent of the medical condition suffered by the plaintiff to her neck;
(b) the plaintiff’s credit;
(c) the plaintiff’s capacity to earn an income and hence will not be able to establish the 40 per cent loss of earning capacity from suitable employment.
9Mr McKenzie handed up a document entitled Defendant’s Statement of Calculations dated 14 February 2024.
The statutory scheme
10The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function.
11The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment with the employer between 2016 and 2021;
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future;
(c) The plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d) Sub-section (2)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in a range of possible impairments or losses of a body function, may be fairly described as being “more than significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the very considerable test contained in ss(2)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] (2005) 14 VR 622
12I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
The Plaintiff’s background
13The plaintiff was born in China in 1970. She is now fifty-three years old.[2] The plaintiff was educated to Year 9 equivalent in China. She migrated to Australia in 2006.[3] The plaintiff is right handed and lives with her husband, daughter and son. Her children are thirty-one and twenty years of age.
[2]PCB 5
[3]PCB 6
14The plaintiff has been employed at the Wagstaff abattoirs from October 2006, when she arrived in Australia. The work was on a full-time basis. She continued to work at that same workplace, although varying her roles and the nature of her work, until she finally stopped work in 2021.[4]
[4]PCB 7
15The plaintiff had a cortisone injection to her right shoulder on 22 July 2019.[5] The plaintiff then returned to work and continued until she ceased work in 2021.
[5]PCB 7
The Plaintiff’s injury in the course of her employment with the employer
16In her first affidavit, dated 30 January 2023, the plaintiff sets out that she initially felt pain in her right shoulder in or about 2016 as a result of her work in the packing area. She stated that she continued to work and tolerate the pain. By 2018, the plaintiff had complained to her supervisor about the pain in her right shoulder.
17The plaintiff continued to work but complained of increasing pain to her right shoulder and also neck pain. Initially, the plaintiff was given a certificate for light duties, but those duties were not provided to her. Ultimately, the plaintiff ceased work in early 2021 due to her neck and right shoulder pain.[6]
[6]PCB 7
Medical treatment
18The plaintiff has undergone numerous radiological examinations of her neck, right shoulder and lower back. Relevantly, the plaintiff had an MRI examination of her cervical spine on 11 March 2021 and the findings are set out as follows:
“c3/c4:
Disc osteophyte complex and prominent disc component right paracentral and indents the right aspect of the spinal cord. Produces minimal right foraminal narrowing. Left foramen unencumbered.
…
Conclusion:
C3/C4 disc osteophyte complex indenting the right aspect of the spinal cord producing mild right foraminal narrowing.
C4/C5 disc osteophyte complex indenting the left aspect of the spinal cord.
There is minimal left sided foraminal narrowing.No definite nerve root compromise is demonstrated.”[7]
[7]PCB 99
19The plaintiff was then referred to Mr Craig Timms, a neurosurgeon. She was attended to by Mr Timms on 29 March 2021.
20Mr Timms referred the plaintiff for MRI examination of the cervical spine, which took place on 4 March 2022. The findings from that examination are as follows:
“C3/4: Broad based right paracentral disc protrusion mildly indenting the spinal cord. The right foramen is mild to moderately narrowed by disc osteophytic complex. The left foramen is mildly narrowed by end plate spurring.
C4/5: Left paracentral disc protrusion. This mildly indents the left ventral hemicord. The right foramen remains adequate. The left foramen remains adequate despite some minor end plate encroachment.
…
Comment:
1. Spinal cord is mildly indented and impinged by right paracentral disc protrusion at C3/4. Left C4/5 paracentral disc protrusion also indents the left hemicord. No intrinsic cord signal at these levels.
… .”[8]
[8]PCB 99
21Mr Timms’ opinion was that surgery to the plaintiff’s neck was a last-resort treatment.
22The plaintiff continues to receive medical treatment from Dr Zheng Wang, a general practitioner. The plaintiff has regular treatment from Michael Chia, physiotherapist. Mr Chia encourages the plaintiff to continue with exercises and mobility, and strengthening activities to ameliorate her symptomatology.
23The plaintiff has been prescribed, over a period of time, the use of Panadol and Nurofen, together with Lyrica. The plaintiff was also prescribed Agomelatine, 25 milligrams per night, to assist her with sleeping.
24The plaintiff has also sought assistance from a psychologist, Fiona Lian. The plaintiff has acupuncture twice a week from a Robert Zhang.
25All the medical examiners in this case agree that the plaintiff cannot return to her previous employment at Wagstaff abattoirs due to her injury. The plaintiff, in her evidence, agrees that she has not made any attempt to return to work in alternative employment. The first and appropriate issue to determine is the extent of the loss of earning capacity to the plaintiff as a result of the injury to her neck.
Medical opinions
Plaintiff’s doctors
Dr Zheng Wang, general practitioner
26Dr Wang prepared two reports, dated 30 October 2022 and 5 November 2023. In his first report, Dr Wang notes the plaintiff suffered from neck pain at C3-4 and C4‑5 foraminal narrowing. Dr Wang also made note of the injury to the plaintiff’s right shoulder. Dr Wang noticed that the prognosis for the plaintiff is poor since she is right handed and all of her injuries relate to her right side.[9] Dr Wang stated as follows:
“… [The plaintiff’s] C spine injury is clearly indicated in specialist report esp in IME report working related (sic) as repetitive duty … .”[10]
[9]PCB 22
[10]PCB 22
27The general practitioner’s opinion was that the plaintiff was unable to engage in any suitable employment on a consistent or reliable basis.[11]
[11]PCB 23
28In his most recent report dated 5 November 2023, Dr Wang stated:
“… [The plaintiff] has no capacity to do any suitable duty based upon … [the plaintiff's] injury status, combined with her age, limited education back ground, language barrier, injury related mental health status/ It is a permanent condition as well.”[12]
[12]PCB 37
29In this statement, clearly Dr Wang has aggregated all of the injuries to the plaintiff, commencing with the cervical spine, the right shoulder and the mental-health reaction to the pain the plaintiff is suffering. Though, a fair reading of his report sets out clearly that any one of the neck, cervical spine or the right shoulder injury, renders the plaintiff with no capacity for suitable employment.
Mr Craig Timms, neurosurgeon
30The plaintiff was referred to Mr Timms for specialist treatment. In his first report, he notes that the plaintiff’s MRI scan of the cervical spine revealed disc osteophytes complex on the right, at C3-4, which he suspected as causing the plaintiff’s symptoms. Mr Timms then went on to state that the plaintiff’s treatment options would be anti-inflammatories and analgesics, in combination with physical therapy, acupuncture and massage. He then states:
“… The next thing to try would be a CT-guided foraminal right-sided C3/4 cortisone injection, and this is likely to help her with pain.”[13]
[13]PCB 20
31Mr Timms went on to state that the last resort would be surgical decompression of her spine in the form of an anterior cervical discectomy at C3-4 and C4-5. In Mr Timms’ opinion, there was no great need to rush into any operative intervention.[14]
[14]PCB 21
32In his report dated 22 March 2022, Mr Timms notes that the plaintiff’s right arm has restricted range of movement which fluctuates, but it was not too bad. He states:
“… The recent MRI scan confirms persistent neural compression at C3/4 and C4/5 from disc osteophyte complexes, which I think is her diagnosis.”[15]
[15]PCB 104
33In the later report, Mr Timms recommends injections to the facet joints at C3-4 and C4-5. The plaintiff, in her evidence, stated that she was fearful of undertaking that course of treatment because it was too close to her spine and may result in an adverse outcome.[16]
[16]PCB 104
Michael Chia, physiotherapist
34The plaintiff has regularly attended Mr Chia for physiotherapy treatment. Her evidence in this regard is that the physiotherapist has persistently encouraged her to engage in physical activity so that her muscles do not shrink.
35Mr Chia prepared two reports, dated 13 December 2022 and 21 November 2023. In relation to the plaintiff’s ability to engage in employment, Mr Chia’s opinion is as follows:
“… [The plaintiff’s] current limitations are significant, but I believe that she has some physical capacity for employment. In my opinion, any work that she undertakes would have to follow these guidelines at the moment:
- part-time basis, consisting of short shifts (eg. 3-4 hours), maximum of 20 hours a week
- not involve repetitive use of the upper limbs
- maximum carrying/lifting capacity of 3 kg
- avoid prolonged static postures (more than 30 minutes at a time).”[17]
[17]PCB 29
36In his report dated 21 November 2023, Mr Chia stated his opinion as follows:
“Currently, my opinion is that … [the plaintiff] does not have the capacity (part time or full time) to perform her previous duties at the abattoir/meat processing factory. Based on her current progress in managing her chronic pain, I believe that her inability to work as she previously did (pre-injury) will be permanent.”[18]
[18]PCB 42
37Mr Chia’s opinion in respect of the plaintiff’s capacity to engage in suitable employment was unchanged from his first report of 13 December 2022.[19] It is clear from the report of Mr Chia that the plaintiff has very limited capacity to engage in suitable employment once one takes into account her limited grasp of the English language and her lack of education and training in respect of other types of employment.
[19]PCB 42
Mr Girish Nair, neurosurgeon
38Mr Nair examined the plaintiff for the purposes of this litigation. He prepared a medico-legal report dated 21 November 2023. In his report, Mr Nair sets out his clinical examination as follows:
“… [The plaintiff] was pleasant and cooperative to examination. She walks with a normal gait without any gait antalgia and was able to sit comfortably for the whole duration of the consultation. She has reduced range of motion in her neck in all direction[s] as it seems to cause her pain. She also has reduced range of movements and tenderness around her right shoulder. The power and reflexes in her upper limb were normal but in the right arm, the hand grip was strong but [on] testing for the rest of the muscle groups, there was a give way pattern of weakness. Her reflexes are elicitable bilaterally.”[20]
[20]PCB 65
39Mr Nair then went through all the radiological examinations that the plaintiff has undergone. In particular, he noted the MRI scan results of 11 March 2021 and 4 March 2022.[21] Mr Nair’s opinion is that the plaintiff has no capacity for pre-injury duties.[22]
[21]PCB 66
[22]PCB 68
40Mr Nair considered the plaintiff’s capacity to engage in suitable employment and stated as follows:
“… [The plaintiff] is physically capable, in my assessment to engage in activities/jobs that are not physically demanding including jobs that are more in a supervisory administrative role. Considering her limited English capabilities and skill sets such a role will have to be discussed and configured with the assistance of [an] occupational physician and return to work coordinator.”[23]
[23]PCB 69
41Mr Nair was asked to consider the alternative employments of product assembler; customer service – Chinese community; clothing alterations, nursery assistant and pamphlet-delivery jobs. In his view, the plaintiff was suitable to try the role of a customer service person for the Chinese community. He deferred to the input of an occupational physician and a return-to-work coordinator in respect of that role. I understood Mr Nair’s opinion to be that the other four proposed occupations were not suitable for the plaintiff.
Dr Eman Awad, occupational health specialist
42Dr Awad prepared a report dated 21 December 2023 for the purposes of this litigation. During his examination of the plaintiff, he took a history of the current symptoms. He records as follows:
“She reports a constant pain in her neck and right shoulder, which she scores the severity as 5-6/10. She indicated that she is never paid (sic) free, that the pain radiates from her neck down to her arm. She indicated that flexion of her neck increases her symptoms and that she has numbness in her fingers, and occasional headaches (cervicogenic). She denies any symptoms of paraesthesia and tells me that she is unable to sleep secondary to her pain.”[24]
[24]PCB 76
43Dr Awad then addresses the plaintiff’s work capacity, and states as follows:
“… [The plaintiff] has no capacity for her pre-injury duties and there are no workplace adjustments that would facilitate her return to work. She should be permanently medically restricted from pushing, pulling, lifting, carrying above five kilos, reaching forward, reaching overhead, repetitive use of her upper limbs and any tasks that require exertional force through her upper limbs for the foreseeable future. This is a permanent partial incapacity.
When taken (sic) into consideration her age, her lack of qualifications, her lack of education, her lack of communication skills, the nature of her injury, her persistent pain, her resultant functional incapacity, her lack of previous occupational history and therefore transferable skills, the length of time out of employment, which is a negative prognostic factor for return to work, on the balance of probabilities, … [the plaintiff] is unlikely to be able to return to any other form of employment, either part-time, full-time, physical or sedentary.”[25]
[25]PCB 78
44Later in his report, Dr Awad says as follows:
“Based on her cervical spondylosis alone, in my opinion, she has no capacity for her pre-injury duties and there are no workplace adjustments that would facilitate a return to work. Based on her neck injury alone, she should be permanently medically restricted from pushing, pulling, lifting above five kilos, repetitive flexion or hyperextension of her neck and reaching forward or overhead for the foreseeable future.”[26]
[26]PCB 79
45Dr Awad then goes on to state, in respect of the plaintiff’s spinal injury:
“Based on her spinal injury alone, and taking into consideration her age, lack of education, lack of transferable skills, lack of occupational history, poor communication skills, the nature of her injury, the pain and her physical restrictions in my opinion, she is unlikely to be able to return to any other form of employment. The permanency of this would depend if she decides to proceed with surgery.”[27]
[27]PCB 80
46In respect of the five specific jobs referred to by the return-to-work advisers, including product assembly; customer service – Chinese community; clothing alteration, nursery assistant and pamphlet delivery, Dr Awad states the plaintiff has no capacity for any of those roles.[28]
[28]PCB 80
Dr Philip Sheard, orthopaedic surgeon
47The plaintiff had been referred to Dr Sheard for medico-legal examination and reporting. Dr Sheard prepared a report dated 8 January 2024. In her history to Dr Sheard, the plaintiff stated that, prior to the injury, she had enjoyed gardening and socialising, but that she had not returned to either of these.[29] This statement about the gardening becomes relevant when dealing with the credit of the plaintiff.
[29]PCB 85
48Dr Sheard states, in respect to the plaintiff’s capacity to engage in pre-injury duties, as follows:
“In relation to … [the plaintiff’s] cervical spondylosis, I do not believe she has any capacity for pre-injury duties. Return to work will cause aggravation and exacerbation with increasing symptoms due to the need for repetitive flexion, rotational and hyperextension of the neck.”[30]
[30]PCB 88
49In respect of the plaintiff’s work capacity in suitable employment, Dr Sheard states:
“With regards for (sic) her cervical spondylosis, she needs to be restricted from flexing or hyperextending her neck for any period of time along with rotation. She would be able to bend, lift, twist and stoop; however, she would need hyperextension of the neck, which is likely to worsen her cervical spondylosis and this is the same for kneeling, squatting, crouching and prolonged sitting. I believe that she will be restricted in walking up inclines and down declines. Walking over an uneven ground is likely to be unaffected. She should not attempt ladders, although she will be able to do a few flights of stairs or steps. This incapacity will continue into the foreseeable future.”[31]
[31]PCB 88
50Dr Sheard, having set out the restrictions in relation to the plaintiff’s movement, then states, in respect to the plaintiff’s ability to partake in suitable employment, that due to her age, education, lack of English and the nature of her injury, in his opinion, the plaintiff is unlikely to be able to return to any form of employment. He noted it was unclear as to whether surgery would actually help the plaintiff at the present time. In his opinion, the plaintiff would require a diagnostic right nerve root injection to see if it would help with the pain.[32]
[32]PCB 89
51Dr Sheard then considered the occupational jobs of:
· product assembler
· customer service – Chinese community
· clothing alteration
· nursery assistant (plants)
· pamphlet delivery.
52In Dr Sheard’s opinion, he stated:
“I do not know (sic) believe that … [the plaintiff] is fit for any of the vocations mentioned; however, it would be a benefit to get a report by an occupational physician.”[33]
[33]PCB 89
53In summary, all of the plaintiff’s medical doctors’ reports are clear and consistent that the plaintiff has no capacity to return to her pre-injury employment. The preponderance of the medical evidence presented by the plaintiff is that the plaintiff has no capacity for suitable alternative employment. This is based on her current physical condition relating to her cervical spine in particular.
The Defendant’s doctors
Dr Sam Soliman, occupational medicine consultant
54Dr Soliman prepared a report dated 14 July 2021 in respect of the plaintiff. Dr Soliman took a history from the plaintiff that she had worked at Wagstaff abattoirs as a process worker packing lamb for fifteen years since 2006. Specifically, Dr Soliman noted the findings in the MRI scan of the cervical spine dated 11 March 2021.[34] Dr Soliman’s opinion was that the plaintiff presented with a considerable functional overlay and strong abnormal illness behaviour.[35] Dr Soliman went on to state that, in his opinion, the plaintiff had no intention of returning to work.[36] Dr Soliman’s opinion was that the plaintiff’s cervical spine difficulties were longstanding degenerative changes and the same applied to the lumbar spine degenerative changes.
[34]DCB 6
[35]DCB 7
[36]DCB 9
55Dr Soliman’s opinion is the only one that state’s that the plaintiff’s cervical spine findings are nothing to do with the place of employment.
Dr Bruce Love, orthopaedic surgeon
56Dr Love examined the plaintiff on behalf of the defendant and prepared a report dated 6 January 2022. Dr Love noted that the plaintiff had received an injection into the right shoulder in early 2020, and noted that it was of doubtful value. The plaintiff gave evidence in this case and stated that the injections she received to her shoulder were of no use to her in ameliorating her symptoms. She then went on to state that the reason she would not have any injections in her neck was a combination of the risk of an adverse outcome in respect of her spine, with her experience of no positive result from the right shoulder injection treatment. I note, at that stage – this is, January 2022 – that Dr Love took a history that the plaintiff’s medications include Celebrex, Felodur, Lyrica, Nurofen and Panadol.
57Dr Love reviewed the MRI scan of the plaintiff’s neck performed on 11 March 2021, and stated as follows:
“Revealed severe degenerative change with significant disc protrusion at the C3/4 level and to a lesser degree at the C4/5 level.
I judge this degree of impairment to be significant in the axial views with nerve root impingement on the right side.”[37]
[37]DCB 15
58Dr Love concluded as follows:
“… Ms Guo has symptoms arising from the cervical spine and it can be accepted that the nature of her employment has brought about the symptoms that she is experiencing.”[38]
[38]DCB 15
59Dr Love stated that his working diagnosis was that the plaintiff had significant cervical disc pathology in the upper levels at C3-4 and C4-5. He stated that it is probable that disc lesions demonstrated on x-ray have been progressive and have been rendered symptomatic by nature of her employment. In Dr Love’s opinion, the plaintiff’s underlying degenerative change has been aggravated by her work at Wagstaff abattoirs.[39] Dr Love stated that her condition was not resolving and was likely to last for the foreseeable future.
[39]DCB 16
Dr Majid Rahgozar, consultant occupational physician
60Dr Rahgozar had prepared a report dated 26 April 2023. Dr Rahgozar noted that, in March 2021, some five months after what he describes as the original injury, the plaintiff had an MRI scan of her cervical spine. I note here, the plaintiff’s complaint about her neck injury is that it arises throughout the course of her employment. Dr Rahgozar has stated that the MRI scan revealed a multilevel degenerative change of the cervical spine, more pronounced at C3-5, but noted there was no evidence of myelopathy and no definite nerve root compromise.[40] Dr Rahgozar then conducted an examination of the plaintiff and noted that the range of motion of the cervical spine was restricted in all planes, but there was a normal lordosis of the cervical spine, no scarring, a change of colour and other deformities.[41]
[40]DCB 26
[41]DCB 27
61In Dr Rahgozar’s opinion, he stated that the plaintiff had multilevel degenerative changes of the cervical spine and lumbosacral spine prior to her injury in October 2020. These could have been aggravated by the physical demands of her work.[42] Dr Rahgozar goes on to state that, in his opinion, the plaintiff’s experience of pain has become chronic in the context of a number of psychosocial risk factors which are predictive of long-term pain and disability of a non-specific nature. In Dr Rahgozar’s opinion, the plaintiff has exhibited a non-organic component in her presentation and illness behaviour.
[42]DCB 28
62The opinion of Dr Rahgozar was that the plaintiff’s original injury to her cervical spine had now resolved and the ongoing pain and disability was a result of her psychosocial circumstances. Dr Rahgozar’s opinion was that the plaintiff had the capacity to perform the roles of customer service officer in the Chinese community; clothing alteration tailor; light product assembler and pamphlet delivery, as set out in the Konekt Workcare report dated 9 February 2023.[43] Interestingly, Dr Rahgozar recommended that a review be held in twelve months’ time if the plaintiff had not returned to work.
[43]DCB 29
Mr Michael Dooley, orthopaedic surgeon
63Mr Dooley prepared a report dated 19 September 2023 for the purposes of this litigation. He took a history from the plaintiff that she could no longer garden. It is clear from the surveillance film that the plaintiff does engage in light cleaning up around the front yard of her home.
64Mr Dooley reviewed the radiology in respect to the plaintiff’s cervical spine. He stated as follows:
“… MRI Scanning of the cervical spine on 11 March 2021 reports a disc osteophyte complex at the C3/4 level with a prominent disc component right paracentral. It states that this indents the right aspect of the spinal cord. Similar findings are noted at the C4/5 level on the left side. MRI Scanning of the cervical spine on 3 March 2022 reports a broad-based right paracentral disc protrusion at the C3/4 level with mild to moderate narrowing of the right-sided foramen. A left paracentral disc protrusion is noted at the C4/5 level. No changes in cord signal are noted.”[44]
[44]DCB 34-35
65In his examination, Mr Dooley noted that the current clinical examination revealed significant restriction of an active range of motion of the cervical spine. He stated that the nature of the plaintiff’s work could aggravate the condition that he described as previous age-related degenerative disc changes.[45] Mr Dooley was of the opinion that the plaintiff had ongoing disproportionate pain after a soft-tissue musculoskeletal injury sustained in compensable circumstances. He was of the view that the plaintiff should not have any further investigations or treatment.[46]
[45]DCB 35
[46]DCB 35
66Mr Dooley accepts that the plaintiff is unable to return to her previous employment. He states that, from an orthopaedic point of view only, the plaintiff had the physical capacity to carry out light physical work and clerical-type work.[47] In his opinion, the plaintiff had the physical capacity to work as a school-crossing supervisor and as a packer of light goods.[48]
[47]DCB 36
[48]DCB 37
Dr Joseph Slesenger, occupational physician
67Dr Slesenger completed a report dated 15 December 2023 for the purposes of this litigation. In his usual manner, Dr Slesenger carefully outlined the examination and treatment the plaintiff has received and taken very careful measurements of her spinal movements. Dr Slesenger then proceeded to summarise the medical opinions given by each of the doctors who had seen the plaintiff for the purpose of this litigation.
68In his opinion, he stated:
“I am satisfied that based on the evidence presented, it is likely that … [the plaintiff] had suffered a right shoulder soft tissue injury, which resolved and subsequently developed a soft tissue injury of the cervical spine, aggravating pre-existing disease of the cervical spine with radiating symptoms.”[49]
[49]DCB 50
69He went on to state that, in his view, the plaintiff had a significant functional element to her presentation. Dr Slesenger accepted that it is plausible that her employment caused her impairment.[50] Dr Slesenger stated:
“… Her current impairment appears to be due to a cervical spine aggravation and pre-existing degenerative disease which has persisted, although as noted above, there is evidence of a functional element to her presentation.”[51]
[50]DCB 51
[51]DCB 51
70Dr Slesenger noted that, in respect of the proposed occupations for suitable employment of:
(a) school-crossing supervisor;
(b) packer;
(c) home-based ironer; and
(d) domestic cleaner
the only roles the plaintiff is capable of performing are school-crossing supervisor and packer (light items). Dr Slesenger ruled out the occupations of home-based ironer and domestic cleaner is outside the plaintiff’s capacity.
71Finally, in his report, Dr Slesenger stated that the plaintiff could return to work in alternative duties, working four hours per day, four days a week, and then graduating to pre-injury hours.[52]
[52]DCB 53
The credit of the Plaintiff
72The main focus of the defendant’s approach to this application by the plaintiff is that she was not a credible witness. In particular, the defendant relied on the surveillance films of the plaintiff on four separate days: 31 May 2023, 1 June 2023 and 24 and 25 January 2024.
73In the first film on 31 May 2023, the plaintiff was seen in a food store. To my observation, the plaintiff consistently used her left arm to carry, what appeared to be, bags of fruit. The film did not show the plaintiff in the food store using her arm in a completely unrestricted manner. Later in the film, at approximately six minutes past eleven, the plaintiff was seen in the front yard of her home. She was using a broom-and-shovel combination to clean up leaves in the front yard. The left arm held the shovel part and the right arm was used with a short broom to sweep the leaves onto the shovel. This appeared to be very light activity. The plaintiff would then, once the leaves were stacked up on the shovel, place the broom on top of those leaves to hold them in place and tip them into a wheelie bin. The latter part of the film showed the plaintiff walking along the street, in what could be described as a normal manner.
74When challenged about her ability to sweep up the leaves and put them in a wheelie bin, the plaintiff stated that she was going to the physiotherapist and had been told to continue with exercise, otherwise her muscles would shrink. I find that the activities engaged in the film of 31 May 2023 do not exhibit such movement and activity by the plaintiff that would call her credibility into question. Clearly, the plaintiff is someone who has had pain as a result of injury to her neck and she has learnt to live with it, in part, and she engages in light gardening work as a result.
75The second film, of 1 June 2023, shows little more than the plaintiff sitting in the car, as a passenger, which was driven by her husband. The plaintiff has always stated she does not have a licence to drive a car and is clearly driven around by other people all the time. The other films in this case show her getting into taxis to travel to medical appointments and otherwise leave the house.
76The plaintiff was challenged about her history to doctors of “don’t touch the garden”. The plaintiff’s response was, the pain is always there and it is sometimes more severe than at other times.
77In the third film which covers the two days of 24 and 25 January 2024, the plaintiff is seen again at the Cranbourne Food Court in company with her husband. The plaintiff chooses the requisite foods and/or fruit and places them in a basket which is wheeled around by her husband. At the end of the shopping, her husband carries the food to the car. The plaintiff just follows along. There is nothing in this film that showed the plaintiff was incorrectly or deceptively trying to make her condition more serious than it was. I also find that she did not exhibit any ability to lift weights and/or persistently use her arms to perform tasks, as would be required by a manual-handling job.
78On 25 January 2024, the plaintiff was seen again cleaning up the front yard of her house. On this occasion, the plaintiff brought a plastic bucket which contained what appeared to be rose clippings, from the back part of the yard to the front, and placed them in a wheelie bin. This occurred on two separate occasions. The plaintiff can be seen pushing the clippings down so she could put more of the garden rubbish in the bin. The plaintiff’s history to Dr Sheard is different from what the video shows in respect of gardening.
79Based on the films shown in Court, I do not accept that the plaintiff is deceptive or in any way seeking to mislead the Court about the extent of her symptoms and inability to engage in suitable employment. The plaintiff clearly states she has pain and works or performs the work in the garden with the pain. The film shows that she has worked in the garden for short periods of time. She works at her own pace. It does not mean the plaintiff can engage in full-time employment or even half-time employment, in a job which has been recommended by the two advisers of CoWork Pty Ltd and Konekt Workcare.
80The defendant conceded that the plaintiff had been subjected to thirty-one hours of surveillance over six separate days. The amount of film shown in court for four of those six days was very short in time and did not display the plaintiff acting outside what she has described as her impairments, in her affidavits and to doctors, in the history given to each of them.
81I have had the advantage of observing the plaintiff in the witness box and accept she is a witness who has given honest, and, as best she can, credible answers to the questions put to her. I do not accept she was trying to mislead the Court as to the limits of her ability to engage in suitable employment or exaggerating her injuries or symptoms. In coming to this conclusion, I am mindful of the pronouncements made in the case of Church v Echuca Regional Health[53] about the use of surveillance film to discredit the credibility of a plaintiff. In this case, the film falls well short of discrediting the plaintiff.
[53](2008) 20 VR 566
Loss of earning capacity
82At the commencement of the proceedings, Mr McKenzie, on behalf of the defendant, tendered the defendant’s statement of calculations. In that statement, he conceded that the gross annual earnings that most fairly reflect the plaintiff’s “without injury” earnings is $927 gross per week. I accept that is an appropriate figure based on the taxation returns which were exhibited in the latter pages of the Defendant’s Amended Court Book. The plaintiff’s counsel accepted that to be a proper figure of “without injury” earnings. After considering all of the medical evidence in this case, the preponderance of it, is that the plaintiff cannot return to her pre-injury work. The difference in the medical opinion is what suitable alternative employment the plaintiff can undertake in her post-injury state.
83At its highest, the alternative positions of a school-crossing supervisor or a light-packer role, or customer service in the Chinese community, were the only agreed alternative employments between the medical practitioners.
84The report of Konekt Workcare[54] sets out the physical demands required to undertake the customer-service role which would produce gross weekly earnings of $1,055. I find that this role is unsuitable for the plaintiff, based on the fact that she has very limited English, and while can speak in her native tongue of Mandarin, she would be unable to properly perform the role of customer service officer. For example one of the physical demands is described as being able to provide active sales and service to customers and facilitate presentations and demonstrations. This part of the role is beyond the capacity of the plaintiff. She has limited education and limited language, and would be unable to fully undertake the role. I also note that the physical demands listed, require repetitive movements when driving and using a computer. It is clear, on the evidence, the plaintiff does not have the capacity to drive anywhere. Secondly, there is no evidence to say that the plaintiff had any literacy in respect of using a computer.
[54]DCB 99
85I do not accept that the plaintiff is a suitable candidate for performing the role of customer service officer in the Chinese community.
86One of the other alternative employments accepted by medical practitioners being suitable for the plaintiff, is a school-crossing supervisor. The role of that job is set out in the CoWork report.[55] This role would involve the plaintiff being able to be flexible to attend multiple different locations within any council area. The plaintiff does not have a driver’s licence and would have extremely limited ability to move from one location to another to perform the role of school-crossing supervisor. Another feature of the job description is that the plaintiff would need to have good communication skills. The plaintiff is currently limited to Mandarin and very, very limited English, so would be unable to perform this aspect of the role properly.
[55]DCB 148
87Finally, the role is described as an hour in the morning and an hour in the afternoon five days a week. This means that the plaintiff would be working for a maximum of ten hours per week. While the evidence in this case is deficient as to the hourly rate, clearly, if the plaintiff was working ten hours per week, it would be greater than a 40 per cent loss of income to her. I do not accept that the school-crossing supervisor role is proper alternative employment for her and she would be unable to perform that work.
88The final accepted role by some of the medical practitioners is that the plaintiff could perform the work of a packer. The CoWork report dated 8 September 2023 sets out one of the packer options at pages 149 onwards of the Defendant’s Amended Court Book. I note that one of the features of the work involves lifting and reaching. The doctors in this case specifically rule out her current or former place of work for the very reason that she is unable to reach and lift. I do not accept the packer job is appropriate alternative employment for her.
Conclusion
89I conclude that the plaintiff has lost her capacity to engage in suitable alternative employment. The plaintiff cannot return to her former place of employment and engage in her previous employment. Based on the totality of the medical evidence and the employment opportunities set out in the CoWork report and the Konekt Workcare report, I find that the plaintiff is unable to return to remunerative employment in a suitable alternative role.
90I find that the plaintiff, on the totality of the evidence, has satisfied the Court, on the balance of probabilities, that she has sustained a permanent loss of earning capacity greater than 40 per cent as a result of the injury to her neck, which has occurred in the course of her employment at Wagstaff abattoirs.
Order
91I grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of the physical injury to her neck arising out of, or in the course of, her employment with Wagstaff abattoirs between 2016 and 2021. I note the plaintiff had abandoned her claim for serious injury in respect to pain and suffering and loss of earning capacity to do with her psychological and psychiatric injury.
92I shall hear the parties on costs.
- - -
0
3
0