Janevski v Mushroom Exchange Pty Ltd
[2010] VCC 794
•25 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-02702
| DESANKA JANEVSKI | Plaintiff |
| v | |
| MUSHROOM EXCHANGE PTY LTD | Defendant |
| (ACN 004 527 440) (FORMERLY CHIQUITA MUSHROOMS PTY LTD) |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25, 27 and 28 January 2010 |
| DATE OF JUDGMENT: | 25 June 2010 |
| CASE MAY BE CITED AS: | Janevski v Mushroom Exchange Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0794 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(37)(a) – low-back injury – issues of credit, whether plaintiff suffered a compensable injury – whether injury is “serious”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with | Rose Mary Brondolino & Co |
| Mr R G W Lawson | ||
| For the Defendant | Mr G K Coldwell | Minter Ellison |
| HIS HONOUR: |
Introduction
1 By way of Originating Motion dated 17 June 2009, Desanka Janevski (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for a low-back injury (“the alleged injury”) suffered during the course of her employment with Mushroom Exchange Pty Ltd (formerly Chiquita Mushrooms Pty Ltd) (“the defendant”).
2 The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The application was heard over three days, and the following evidence was adduced:
(a) The plaintiff and Dr C Gorgioski, a treating general practitioner of the plaintiff, gave oral evidence and were cross-examined; (b) The plaintiff tendered the following evidence: (i) two Certificates of Incapacity dated 21 October 2009 and 21 January 2010 (“Exhibit 1”);
(ii) reports of Dr C Gorgioski dated 2 August 2005, 10 January 2006, 1 March 2009, and 10 December 2009 (“Exhibit 2”);
(iii) letter from Mr Brian Barrett, orthopaedic surgeon, to Dr Gorgioski, dated 14 July 2005 (“Exhibit 3”);
(iv) Certificate of Capacity from Dr Gorgioski dated 14 July 2005 (“Exhibit 4”);
(v) pages 14–33 and 43–102 inclusive of the Plaintiff’s Court Book (“Exhibit 5”);
(vi) pages 1–12 inclusive of the Plaintiff’s Supplementary Court Book (“Exhibit 6”).
(c) The defendant tendered the following evidence:
(i) pages 1–51 of the Defendant’s Court Book (“Exhibit A”); (ii) permanent impairment Claim Form dated 3 October 1989 (“Exhibit B”); (iii) Incident Report dated 22 September 2003 (“Exhibit C”); (iv) physiotherapist note dated 8 September 2005 (“Exhibit D”).
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the alleged injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act.
That paragraph reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function; ...”
The part of the body said to be impaired for the purposes of paragraph (a) is the back: (see T4, L9–15).
6 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)
“the alleged injury” suffered by her arose out of, or in the course or due to the nature of, her employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)
“the alleged injury” and the resulting impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)
the “consequences” to the plaintiff of the low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of
possible impairments ... fairly described as being more than significant or
marked, and as being at least very considerable”: (see s.134AB(38)(b)
and (c) of the Act) (my emphasis);
The test for “serious” set out in paragraphs (b) and (c) of s.134AB(38) of the
Act is sometimes referred to as the “narrative test”.7 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:
(a) that as at the date of hearing the plaintiff has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and (b) that after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii) of the Act). 8 In determining the application, the Court:
(a)
must not take into account the psychological or psychiatric consequences of “the alleged injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)
must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 delivered by the Court of Appeal on 28 July 2009, and in particular at paragraphs [60]–[64]);
(d)
notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]);
(e)
must give reasons which are extensive and complete as the court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]).
The Issues
9 Counsel for the defendant informed the Court that the following matters were issues:
(a) the credit and reliability of the plaintiff: (see generally T170 L1–15); (b)
whether the plaintiff did suffer a back injury in or about July 2003 as asserted in her affidavit sworn 24 March 2009;
(c)
the nature, extent and permanency of any back injury suffered during the course of her employment with the defendant;
(d)
whether the plaintiff discharges her burden in establishing that she has the requisite loss of earning capacity;
(e)
whether the plaintiff discharges her onus pursuant to s.134AB(38)(g) to pursue rehabilitation or retraining.
The Plaintiff, her “Alleged Injury” and Treatment
10 The Court refers to the affidavits sworn by the plaintiff on 24 March 2009 (at page 14 of Exhibit 5 and hereafter referred to as “the first affidavit”) and on 16 December 2009 (at page 26 of Exhibit 5 and hereafter referred to as “the second affidavit”).
11 Save for one issue involving a period of employment with an employer called Serv Pack Pty Ltd, to which I shall return later in these reasons for judgment, the plaintiff swore that the first and second affidavits were “correct” and “accurate”: (see T27, L4-5 and T28, L4-5).
12 By way of her first affidavit, the plaintiff gave the following evidence:
•
She is a fifty-two-year-old (born 19 February 1958) married woman who was born in Macedonia, where she obtained about five years’ education: (see paragraph 1).
•
She migrated to Australia in or about 1971 (when aged thirteen) and originally settled in New South Wales where she attended school for a further one year, after which she moved to Melbourne and completed a further year at a secondary school: (see paragraph 2).
•
She left school at the age of fifteen and in 1973, commenced work as a machinist for a footwear manufacturer where she remained for about a year. In or about 1975, she commenced employment as a sewing machinist and remained in that employment for about eight years, during which time she was off work for about five months for the birth of her first child.
•
She ceased work as a machinist in 1983 as a result of being pregnant, and remained at home looking after her children until about 1989.
•
In or about 1989, she commenced employment with what was then known as Campbell’s Mushrooms, a predecessor of the defendant, which is situated in Cooks Road, Mernda.
•
The defendant produces mushrooms and the plaintiff was employed as a causal picker, starting at a regular time Monday to Friday and “often Saturdays and Sundays” but the finishing time was irregular, depending on mushroom growth and production requirements: (see paragraph 5).
• The plaintiff describes her duties in paragraph 6 as follows: “The mushrooms were grown in large sheds. The mushrooms were cultivated in boxes or trays, located in six (6) shelves and forming rows of shelving with an aisle between each row. There was a space between each shelf to allow the picker to gain access to the mushrooms. As a picker I was part of a team which was allocated particular rows. The bottom three (3) shelves were picked while standing at ground level. The bottom shelf was just above floor level and the third shelf was above chest level. I picked the mushrooms with one hand and with a knife in the other hand I trimmed the stalk. It was necessary to reach inside the shelves. The mushrooms were then placed in boxes. Trolleys were used when picking. When picking from the bottom three (3) shelves a low trolley was used to store the boxes of picked mushrooms. When I was picking from the high shelves a high trolley was used. All the trolleys were on wheels. When picking from the high trolleys it was usual to move the trolley along the rows, while standing on the trolley, pushing and pulling and manoeuvring with my legs and arms. When picking from the high shelves it was also necessary to reach into the shelves to pick the mushrooms and trim the stalk. The floor of the premises between the rows was often littered with debris from the mushrooms and in places the floor surface was uneven. Frequently the wheels on the trolley did not rotate smoothly. After picking about ten boxes the high trolley or the low trolley had to be pushed to a waiting area. On the high trolley the boxes of mushrooms were stored on a wire mesh base located near the bottom of the trolley.”
•
The plaintiff was expected to pick at least four boxes of mushrooms each hour and was paid on the basis of the number of boxes picked and weighed. If she picked more than four boxes she would receive a bonus.
•
The plaintiff usually obtained a bonus and during any eight-hour day she was expected to pick at least thirty two boxes but would “normally pick between fifty and seventy, depending on the size of the mushrooms”: (see paragraph 7).
• In about 2002, she was averaging about $600 net per week. •
The work was “physically very strenuous and placed strain on the neck, arms, shoulders, hands and lower back” and she would feel aches and pains, particularly towards the end of the shift, but these would “normally settle overnight”.
•
The defendant had a medical centre at the premises and at various times engaged a physiotherapist.
•
The workers were instructed to report injuries and attend the medical centre if required, and she recalls that in or about June 1999, “I slipped and landed heavily on my buttocks”: (see paragraph 8).
•
She reported the incident, and to the “best of my recollection” did not have any medical treatment nor time off work, and continued her duties as a picker.
•
“I coped reasonably well with my duties as a picker until July 2003”: (see paragraph 8).
• In paragraph 9, she describes the onset of “the injury” in the following way: “In early July 2003 I was picking from the high shelves using the high trolley. I had moved the trolley along the shelves, by standing on the trolley using my hands, and legs and back to move the trolley. I had picked ten (10) boxes of mushrooms and stored these boxes on or within the high trolley. Some of the boxes were loaded onto the steps. I pushed the trolley to the weighing area which was about twenty (20) metres away from where I had been working. The wheels of the trolley did not run smoothly. Each picker is allocated her own trolley, the trolleys were never regularly maintained, and there were frequent complaints. At the weighing area it was necessary for me to bend and twist to retrieve the boxes of mushrooms from the mesh base or platform. Although each box only weighs between four or five kilograms, it was awkward, it involved low bending and twisting to get access to and to retrieve the box. As I was leaning and bending to pick up a box of mushrooms I experienced sharp and strong low back pain and groin pain which extended into my right hip. I attempted to keep working but the pain continued. I reported my pain to the supervisor (Thelma) and I believe that she made a record.”
•
She attempted to keep working, hoping that she would improve and she was “not instructed to attend for medical treatment at the medical centre and … was not given any other duties”: (see paragraph 10).
•
Over about the next two months she worked with “back and hip pain and groin pain” and as she was having “increasing problems in coping with my work”. She attended the medical centre of the defendant where she was advised to seek treatment from her own doctor: (see paragraph 10).
•
In about August 2003, she consulted Dr Senguttuvan at the Epping Plaza, Epping, a doctor who she had attended “from time to time in the past for general health matters”.
•
She was certified unfit for all work for a period of two weeks and thereafter returned to work with the defendant performing light duties on reduced hours. Initially her alternative duties allowed her to sit and stand but after a “short time” her duties included a limited time picking mushrooms.
•
She continued trying to work five hours a day, four days a week but experienced “increasing back and hip pain and pain in my right thigh and pain in my groin, all of which was getting worse”: (see paragraph 11).
•
Dr Senguttuvan arranged for an x-ray of her low-back in September 2003, an ultrasound of her groin and a referral to a physiotherapist in September 2003 and also prescribed medication to relieve her pain. In particular, the plaintiff asserts: “It was not made clear to me whether I was suffering from a hernia or a low-back or a hip problem”: (see paragraph 11).
•
Dr Senguttuvan referred the plaintiff to a general surgeon, Dr Gya, who initially examined her on 14 October 2003.
•
In about July 2004, Dr Senguttuvan arranged for a CT scan of her lumbar spine to be undertaken and although she continued to take medication and receive physiotherapy, she did not experience any improvement in her symptoms.
•
Dr Senguttuvan referred the plaintiff to a remedial massage therapist, Ruth Charlton, and she attended on about six occasions in 2004 for “massage and therapy treatment for my low-back pain”.
•
In about July 2004, she was examined by Dr Kemp on behalf of the defendant (or its agent) and was informed that she had suffered a hernia which was reported to Dr Senguttuvan. Dr Senguttuvan, in turn, referred the plaintiff to a general surgeon, Mr D Atkin, who recommended that she undergo surgical repair of a hernia, which was undertaken on 14 September 2004.
•
She ceased work at this time and was not offered any further alternative employment by the defendant.
•
She did not experience any improvement after the repair of the hernia and continued to “experience back pain, right hip pain and thigh pain”: (see paragraph 14).
•
Because of lack of progress, she transferred her treatment to Dr Gorgioski, who also spoke Macedonian. He arranged for the plaintiff to undergo an MRI scan of the low-back on 12 April 2005.
• Dr Gorgioski continued to certify the plaintiff unfit for work. •
“I lodged a further Claim for Compensation signed on 14 June 2005 in respect to my “lower back” (which was ultimately rejected).
•
She was referred to a rehabilitation company, “Workplace and Issues” who identified employment options, including machinist, mail sorter and sorter- packer: (see paragraph 14). These job options were not discussed with her. She has no real experience as a mail sorter or a sorter-packer.
•
Dr Gorgioski referred her to the orthopaedic surgeon, Mr Brian Barrett, who initially examined her on 13 July 2005 and also had available x-rays of her low-back and the MRI scan arranged by Dr Gorgioski.
•
In late 2006, she was re-examined by Dr Atkin, who arranged a further ultrasound, and she was advised that she may need further surgical repair for a possible recurrence of the hernia. However, she is reluctant to undergo further surgical repair to the hernia because the hernia surgery failed to eliminate groin pain and did not provide her with any relief in respect to her back, right buttock and left leg: (see paragraph 17).
•
She was re-examined by Mr Barrett on 18 December 2008 and he arranged for a further MRI examination of her lumbar spine on 19 January 2009, and on 27 January 2009, she was informed by Mr Barrett that she had “damaged three of my lumbar intervertebral discs” and he referred her back to Dr Gorgioski for further management of her injury.
•
She continues to attend Dr Gorgioski “usually once or twice a month”: (see paragraph 18) and is prescribed Naprosan, which she takes one in the morning and one at night, together with non-prescription Panamax.
•
She was told she should remain active and she normally walks about thirty minutes each day.
•
She describes her ongoing symptoms (as at 24 March 2009) in the following terms:
“I continue to suffer low back pain which extends into my right hip, buttock and leg and I continue to experience groin pain. My sleeping is disturbed by back pain and in the mornings I feel tired and stiff. I attempt light household tasks but I try to avoid, if possible, activities such as vacuuming and mopping. My husband assists me with household tasks. I can drive an automatic motor vehicle but after about thirty minutes I experience increased back and leg pain. I can perform light shopping but I would normally attend at the supermarket to attend to the weekly heavier shopping. I experience constant low back pain which extends into my right leg and which is variable. Activity which places strain on my back would normally increase my back and leg pain, but the onset of stronger back and leg pain is unpredictable. I was happy when I was working. I enjoyed the company of fellow workers and earning an income. I now feel sad and demoralised when because I cannot work and live a normal life.”
(see paragraph 19).
• Her solicitor has made “several requests for a medical report from Dr Senguttuvan” but a report has not been forthcoming: (see paragraph 21). 13 By way of her second affidavit, the plaintiff gave the following evidence:
• On being shown documentation forwarded by the defendant, or its agents, including an affidavit by one Michael Chiller sworn 22 May 2009, the plaintiff states: “[The affidavit] … which exhibited various copy documents, including copy medical reports relating to an injury that I suffered to my left arm in 1986 whilst I was employed by Serv Pack Pty Ltd. These medical reports have been drawn to my attention and the substance interpreted to me from English to Macedonian. My recollection of events in about 1986 had been assisted by reference to the aforementioned medical reports. … I agree that in mid 1985 I was employed by Serv Pack Pty Ltd at Reservoir. I worked as a machine operator and packer. The work involved the repetitive use of both arms. In or about early 1986, I experienced pain and swelling in my left elbow which extended up into my left upper arm and shoulder. I ceased work and attended Dr Lamba, a medical practitioner at Thomastown. I obtained weekly payments of compensation until about late 1988. Other than weekly payments of compensation and the payment of my medical expenses, I did not receive any further compensation, including any lump sum compensation. I recovered from the injury to my left arm which was mainly a pain of the left elbow”
(see paragraphs 2 and 3).
• Again, after describing her commencement of employment with the defendant and the nature of her duties with the defendant and her ability to cope with such employment, the plaintiff states: “I ceased employment with the defendant as a result of groin pain, low-back pain and right leg pain, which first occurred in about July 2003 and are referred to in paragraphs 9 to 14 of my previous affidavit.”
(see paragraph 4).
• She continues to be treated by Dr Gorgioski and reviewed by Mr Brian Barrett from time to time. Her medical treatment continues to consist of medication as described to in the first affidavit but she also now takes Ducene, one tablet each night to help her relax. • Since her first affidavit, she has not been approached by the defendant, or its agent, in respect to any rehabilitation or retraining and that she “continue[d] to be incapacitated for work because of my back injury”: (see paragraph 6). 14 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
The plaintiff accepted that she had “never forgotten” and had “known … all the time” that she had worked at Serv Pack Pty Ltd as a machine operator: (see T31, L19-28).
•
She admitted that she “deliberately omitted that injury” which occurred with Serv Pack Pty Ltd and was aware of that injury at the time she swore her first affidavit: (see T34, L18-21). Furthermore, she “deliberately chose not to refer to either that employment with Serv Pack and that injury”: (see T34, L23-24).
•
The plaintiff accepted that she received weekly payments of compensation in relation to her elbow injury with Serv Pack Pty Ltd up to within a month of commencing employment with the defendant on 20 November 1989: (see T51, L19-29).
•
In relation to the specific incident in July 2003 described in her first affidavit, the plaintiff was asked:
“Q: Is it that incident that you blame for your current condition?--- A: Yes.” (see T53, L27-28).
•
In relation to the incident of falling, back in June 1999, described in her first affidavit, the plaintiff was asked the following questions:
“Q: Do you recall that fall where you landed on your backside?--- A: Yes, I did, yes. Q: Okay, do you say that any of your current problems are due
to that incident in 1999?---A: Could be. Q: Well did you have any problems between 1999 and July
2003?---A: I did have a pain but nothing like the pain that I had in 2003
and they would go away.”(T54, L12-19).
•
On being referred to a history taken by a physiotherapist, Kelly McGrath, that eight months prior to the 9 September 2003, she had “slipped off a step at Chiquita Mushrooms” and thereafter had suffered pain I the right hip joint and lumbar spine, the plaintiff answered: “I don’t remember that”: (see T56, L8-15).
•
When the plaintiff was asked whether she told one of the defendant’s doctors, Mr Russell, in February 2005 that two months prior to 29 August 2003 she had come down a step at work and missed the step and had a soreness in the right hip, she answered:
“No, I don’t remember that.”
(see T57, L17-21).
•
Dr Senguttuvan treated the plaintiff for approximately two years up until June 2005 and she wrote certificates for her to be off work: (T59, L1-3).
•
“No real change over … [the] five-year period” from her first attendance on Dr Gorgioski in 2005 to date: (T64, L1-7).
•
The Claim for Compensation in relation to the plaintiff’s low-back (which was rejected) dated 14 June 2005 was witnessed by Dr Gorgioski and she saw Mr Barrett in July 2005 after the rejection of such claim: (see T64- T65).
•
The plaintiff sees Dr Gorgioski once or twice a week and on each occasion for about ten or fifteen minutes (“it all depends”). He does not measure the movement of her back or hips, does not check whether she can raise her legs and does not get her to bend over and touch her toes or anything like that: (see T65, L9-24).
•
The plaintiff still has pain in her right groin where the surgery was undertaken and feels pain in that area when she sneezes and describes the right groin pain as a “cutting pain”: (see T69, L2-9).
• The plaintiff has done no work since July 2004. •
The plaintiff takes one Panamax at night and has recently started taking Naproxen tablets (rather than Ducene). She undergoes no physiotherapy, hydrotherapy or massage treatment: (see T70-T71).
• The plaintiff drives a motor vehicle. •
The plaintiff was very upset about being terminated by the defendant (T75, L17-18) and she initiated unfair termination proceedings against the defendant: (T76, L16-18).
•
At the time of her termination, the plaintiff wished to continue on light duties at the premises of the defendant: (T76, L12-15).
•
The defendant did offer the plaintiff her job back but she was not sure whether it was her light duties or her normal job with the defendant. Dr Gorgioski gave her a certificate dated 14 June 2005 (Exhibit 4).
•
The plaintiff hoped to get back to the light duties that she was performing as at the date of her termination and she would give such work “a try”: (T138, L6-8).
• The plaintiff “cannot read or write very well”: (see T138, L29). •
The plaintiff did not think she could perform any work because of the pain – even work which did not involve repeated bending or repeated lifting: (T147, L28 – T148, L7).
•
The plaintiff has not gone out and done anything about finding a job nor look at working in a supermarket because she “can’t” and because “you’ve got to be on your feet for long hours”: (see T150 generally).
•
The plaintiff was asked in general terms about her job-seeking with the following question and answer:
“Q: What I am also suggesting is that you have not made any
attempts to find a job since 2005?---A:
Like I said before, who going to give me a job when you got back pain, all my problem I got, who going to give me a job, who going to go offer me a job.” (sic)
(see T154, L1-5).
15 In re-examination, the plaintiff gave the following pertinent evidence:
•
When working light duties with the defendant she was working four days, five hours per day: (T155, L27-30).
•
The plaintiff did not fill out anything in the claim form submitted by her and only signed them: (T156, L6-17).
•
When asked to explain why she did not tell in her first affidavit about the earlier elbow injury, the following evidence was given:
“I thought it was going to effect my – this case.”
(see T147, L1-2).
•
When she slipped and fell on her bottom in 1999, she did not have any time off work and did not receive any medical treatment: (T157, L23-26),
• After 1999 she was asked:
“Q: Did you have any problems, ongoing hurt to your back?--- A: Yes, I have but it’s not pains, the pain I can manage. I was
working up until 2003.Q: In that time between 1999 and 2003, did you have any time
off work for your back?---A: No. Q: Did you have any treatment for your back?--- A: No.” (see T158, L2-4).
• The boxes of mushrooms weigh up to 4 kilograms: (T159, L3). • When she went back to the defendant with the certificate from Dr Gorgioski in June 2005, the company did not give her a job because the certificate certified her fit for twenty hours a week with no lifting, no bending and no pushing: (T164, L9-12). 16 Given that issues have arisen as to the occurrence, nature and extent of any low-back injury, I consider it appropriate to detail in a chronological form the plaintiff’s complaints in relation to back pain and her various attendances at physiotherapists or doctors.
17 I refer to the report from the physiotherapist, Ms Kellie McGrath, dated 18 August 2005: (see page 45 of Exhibit 5).
18 The plaintiff first attended Epping Physiotherapy on 9 September 2003. Ms McGrath obtained the following history:
“… She stated that 4 weeks previously she had spontaneous onset of pain and swelling. The areas of pain indicated were the right lumbar, right buttock and anterior right hip joint. She described swelling in the anterior right hip region and pain radiating down the anterior right thigh. She reported that 8 months earlier she had slipped off a step at Chiquita Mushroom and had episodic pain in the right hip joint and lumbar spine since that time which had been slowly increasing with time.
She went to her local general practitioner who ordered an ultrasound that apparently showed no findings suggestive of a hernia in the femoral region. She stated that 3 years ago she had a minor incident of lower back pain as her only significant past history. She also stated a history of migraines. She was medicated by Celebrex and migraine tablets. She stated that her pain was aggravated by half an hour of walking and turning in bed, which resulted in pinching in the back.”
(my emphasis)
(see page 45 of Exhibit 5).
19 Examination on 9 September 2003 revealed tenderness in the region of L1, L2 and L3 facet joints with spasm in the erector spinae. Her range of lumbar motion was also limited in the planes of forward flexion and extension and she had a positive right hip quadrant test with restriction of right hip joint motion.
20 The physiotherapist requested an x-ray of the lumbar spine and the hip joint and the x-ray of the lumbar spine was performed on 10 September 2003. Ms McGrath states:
“[The x-ray of the lumbar spine] … was reported as showing a marked thoracolumbar scoliosis to the left, but alignment in the lumbar region was essentially normal. There was minimal lumbarisation of S1. Lumbosacral disc space was slightly narrowed and there was (sic) some degenerative changes noted in the facet joints at this level. Disc spaces were otherwise well preserved although there was some early spondylitic lipping at L3-4 and L4-L5 disc margins. No focal bone pathology was evident. The X-ray of the pelvis, sacroiliac and hip joints was reported as follows: The hip joints were normal. There was minimal spurring anteriorly about the left and, to a lesser extent, the right sacroiliac joints, but the joints otherwise appeared normal. … .”
(see pages 45-46 of Exhibit 5).
21 Ms McGrath diagnosed a lumbar strain at the L1-L4 facet joints with referral in the anterior right hip joint and right hip joint dysfunction. Treatment to about the end of 2004 was directed to these areas but she showed “no lasting significant improvement with physiotherapy”.
22 In relation to the relationship of her back condition and her employment, Ms McGrath states:
“The symptoms at her lumbar spine and anterior right hip joint were consistent with a lumbar strain at L1-L4 facet joints with referral into the anterior right hip and anterior right thigh at the levels of L1-L2.
The swelling in the femoral triangle is inconsistent with this diagnosis and a hernia would have had no effect on the lumbar spine.
The incident of slipping off the step eight months prior to presenting to Epping Physiotherapy could have been the original aggravating injury for the lumbar strain, however 8 months is a long duration of time for the full realisation of the symptoms of this injury. It is more likely that an overall picture of chronic degeneration with an acute exacerbation of the lumbar spine is responsible.
Mrs Janevski has worked in a manual handling job for a number of years with both repetitive and prolonged forward flexion of the lumbar spine. This would have contributed to her lumbar spine symptoms and degenerative changes seen on X-ray. … .”
(my emphasis)
(see page 46 of Exhibit 5).
23 I refer to the report from the general surgeon, Dr Devan Gya, dated 14 October 2003 addressed to Dr S Sengutttuvan: (see page 44 of Exhibit 5). He states:
“I saw Desanka at your request today.
She presented with pain in the right groin and works as a mushroom picker in the mushroom farm.
An ultrasound of the lumbar spine has shown no abnormality, but I do believe that she does have referred pain from the hip and even the lower back.
Clinical examination showed no evidence of herniae and I have reassured her accordingly.”
(my emphasis).
24 I refer to the report of the rheumatologist, Dr Warren A Kemp, who medico- legally examined the plaintiff on 1 July 2004 at the behest of an agent of the defendant: (see page 12 of Exhibit A).
25 In a report dated 8 July 2004, Dr Kemp obtained the following history:
“She states that she has been a Mushroom Picker at Campbells for fourteen years and this has been casual work up to thirty hours each week. She was quite well until August 2003 when she had a gradual onset of persistent pain and swelling in the right groin and some pain in the right hip and lower back. She consulted Dr S Sengutttuvan, who thought that there may be a hernia and referred her to a surgeon, Mr Gya. She had an ultrasound examination and CT scan that were normal and she was advised that the pain was due to ‘muscle strain’, but analgesic tablets and physiotherapy did not help. During the last nine months she has had constant pain in the right hip and groin mainly, but also some intermittent pain across the lower back. The groin pain is more severe while standing and then she is able to feel a localised swelling ‘like an egg’ in the groin. … .”
(my emphasis).
26 On examination of the spine, Dr Kemp found:
“… Normal ranges of movement are present at each level of the spine and there is no trapezius or paravertebral muscle spasm or tenderness. Straight leg raising was not examined, but she is able to sit erect at 80 degrees with straight legs and the sciatic and femoral nerve stretch tests are negative. All tendon reflexes are normal and the plantar response is flexible. Muscle power is normal and there is no wasting of the legs. Sensation is normal and there is no neurological deficit to the legs. … .”
27 Dr Kemp was of the opinion that it was “likely” that the plaintiff suffered a right inguinal or femoral hernia.
28 I refer to the reports from the general surgeon, Mr Chris Atkin, dated 19 July 2004 and 28 October 2004 addressed to Dr S Sengutttuvan: (see page 43 of Exhibit 5).
29 Mr Atkin obtained the following history:
“Thank you for asking me to see this lady who has a history of pain in the lower back, right hip and right groin. For about 12 months she has been aware of swelling in the groin and more recently that swelling has become a little uncomfortable causing some radiation of discomfort into the anterior thigh. It goes away when she lies down and is most easily felt when she is standing up.
On examination she has a reducible right inguinal hernia. I note that recent x-ray shows that she has degenerative change in the lower lumbar spine that may be responsible for the pain in the lower back and possibly the right hip. … .”
(my emphasis)
30 Mr Atkin performed a right inguinal hernia repair on 14 September 2004.
31 In his later report dated 28 October 2004, Mr Atkin states, in part:
“… She still has some slight tightness in the region of the repair but I think in a fortnight’s time she should from at least that point of view be able to return to work. She still has pain in the right hip and lower back and will be coming back to see you in that regard.”
(my emphasis).
32 Dr Sengutttuvan arranged for the plaintiff to undergo a CT scan of her lumbar spine and it is reported at page 61 of Exhibit 5. I note that there is some bulging at the L5-S1 disc without definite disc herniation identified. There are early degenerative changes.
33 I refer to the medical reports of the general surgeon, Mr T J Russell, who medico-legally examined the plaintiff on behalf of the agent of the defendant on 23 February 2005 (see report of same date at page 21 of Exhibit A); 27 October 2005 (see report of same date at page 18 of Exhibit A) and on 17 August 2006 (see report of same date at page 14 of Exhibit A).
34 When the plaintiff was first seen on 23 February 2005, Mr Russell obtained the following history:
“She has no history of any illnesses, injuries or medical problems of any
sorts in the past she said. Her recreations have been walking.
This lady complains of pain in her right lateral lower back which she refers to as her ‘hip’ and also in the right mid to inferior buttock. She also reported swelling in the medial aspect of her right groin. She said that five years ago she slipped and fell/sat down onto her buttocks. It was not bad. She had no time off work and no treatment. This occurred at work. She worked on normally.
She has more recently noted a problem of a slow onset of pains in her ‘right hip’ (she indicates the right lateral lower back) for about a month or two before the 29/08/03. She also said that she noticed a bit of swelling in the right groin. After noticing swelling in the groin she went to see the nurse in August 2003. The nurse thought it might be a hernia and sent her to her own doctor whom she saw on the 29/08/03. She was put off work for two weeks. The doctor thought there was no hernia present. She was given tablets and physiotherapy to her back was arranged. It gave temporary help. After two weeks off she returned to work onto light duties part time twenty hours a week packing small punnets and putting them into a box. She could sit or stand.
The patient said hat two months before, the 29/08/03 as she came down a step at work she missed a step and had a bit of soreness in her ‘right hip’. She told the nurse at that stage but had no treatment and no time off work. She could remember no significant events in the past. … .”
(my emphasis)
(see page 21 of Exhibit A).
35 At the time of his examination, the plaintiff was still having physiotherapy once a week to her right lower back. In relation to any back condition, Mr Russell expresses the following opinion:
“… A CT scan or MRI of her back would be of potential value but clinically there is nothing to indicate anything in the way of specific injuries to her back. Her X-rays (plain films) have shown some degenerative change which are constitutional in nature and could cause her symptoms which, with reassurance, should allow normal activities in daily living. From the point of view of her back condition, there is no indication of a significant or material work related injury. She has had a fall five years ago and apparently [in] mid 2003 but these do not cause any identified continuing effect. Her back condition would benefit from reassurance and a home exercise programme including walking. From the point of view of her back condition she is fit for full time pre-injury employment. … .”
(see page 23 of Exhibit A).
36 When seen by Mr Russell on 27 October 2005, the plaintiff was complaining of pain in the right side of her low back and right mid buttock. She told Mr Russell that Mr Barrett had told her that she has a “back problem which is a disc problem” and she cannot do any work.
37 Mr Russell had access to an MRI scan of the plaintiff’s lumbar spine undertaken on 12 April 2005: (see page 62 of Exhibit 5). That report concludes:
“Multi level lower lumbar mild disc degeneration with annular disruption at
L5-S1. No neuro compressive lesions. Moderate lumbarisation S1.”
38 In his report dated 27 October 2005, Mr Russell states, in part:
“As to her back condition she today shows significant inconsistencies on examination. I note Mr Barrett’s report and he did not report any complicated movements of her back on examination. On my examination today there were significant inconsistencies on complex movements and I believe she is better than she realizes. Currently her back condition on MRI can is a degenerative one. There is no evidence of a traumatic lesion on MRI scan from April 2005. The patient’s back condition is not identified as being related to employment in a significant or material way. … .”
(see page 19 of Exhibit A).
39 When last seen by Mr Russell on 17 August 2006, the plaintiff was complaining of right groin pain and low-back pain, with her back pain extending across the lower lumbar region and left and right iliac crests. Mr Russell comments:
“Her back condition is more difficult to assess as she did not appear to
give full effort in her response today. … .”
40 I refer to the reports of the present treating general practitioner, Dr Chris Gorgioski, dated 2 August 2005 (see page 47 of Exhibit 5); 10 January 2006 (see page 48 of Exhibit 5); 1 March 2009 (see page 49 of Exhibit 5); and 10 December 2009 (see page 64 of Exhibit 5).
41 When called, Dr Gorgioski in his evidence-in-chief, adopted such reports as being “accurate and correct”: (see T80).
42 Dr Gorgioski initially saw the plaintiff on 7 April 2005. Under cross- examination, Dr Gorgioski stated what he recorded on that day:
“My note says that one year she got right hip problems and she’s seen Mr Atkins. She had seven months before that had had hernioplasty done by Mr Atkins. For sixteen months she had been complaining of right hip pain during her employment as a mushroom picker and lower back pain and right inguinal pain. On examination, she had a right inguinal hernia but no impulse and right hip tenderness and lower back restricted movements.”
(see T88, L6-13).
43 Dr Gorgioski initially thought that she was suffering from lumbar spine disc pathology and he arranged for her to undergo an MRI scan on 12 April 2005.
44 In his first report dated 2 August 2005, he states:
“In my opinion this patient suffered lumber vertebral discs ruptures. Her injuries are a direct result of her repetitive lifting and bending in the course of her employment.
Taking into account the nature of her injuries I strongly believe she is not fit for any type of work. Any more strenuous activities will aggravate her condition.”
(see page 47 of Exhibit 5).
45 In his last report dated 1 March 2009, Dr Gorgioski notes that he sees the plaintiff at regular intervals and that she still complaints of low-back pain, radiating into her right leg. Such pain is persistent and aggravated by physical activities and she avoids doing heavy housework, vacuum cleaning and mopping. He confirms his opinion that the plaintiff has suffered a rupture of three lumbar intervertebral discs in the course of her employment with the defendant and that she has a “permanent loss of function of her lumbar spine” and “is permanently unfit for her pre-injury employment or any other work for which she is qualified or experienced”. Further, she cannot be “retrained or educated”: (see page 49 of Exhibit 5).
46 Under cross-examination, Dr Gorgioski gave the following pertinent evidence:
•
He did not obtain a history of something occurring on a day in July 2003 but as a mushroom picker he assumed that “because of bending and lifting, that’s why she injured herself”: (see T89, L1-8).
•
Having been told that for some twelve months prior to September 2004 she was performing lighter duties five days, four hours a day, Dr Gorgioski still thought it was “possible that she was having ongoing back pain and by time it would have deteriorated”: (see T90, L28-30).
• In relation to her back condition, Dr Gorgioski gave the following evidence: “HIS HONOUR:
Q: Doctor, leaving aside any issues of causation, when you saw her on 7th April 2005 you, if not immediately, but certainly with the MRI scan which was taken four or five days later, you came to the view that she had something wrong with her back?--- A: That’s correct your Honour. Q: At the time that you did see her initially, did you think there was
any distinct injury in relation to the right hip?---A: No. Q: Did you think there was any distinct injury either as a sequel or
anything to do with a hernia condition at that stage?---A: I knew that hernia and back pain could be always difficult sometimes to diagnose because of the nerves coming around the area but she was operated and was still complaining of back pain and going to her hips and legs and I strongly suspected it was a lumbar spine problem.
Q:
When you saw her at least in April 2005, are you saying to the Court that it was your view that the symptoms that she was suffering, the cause of those symptoms was a low-back condition?---
A: Yes, I was sure your Honour.” (see T92, L3-22).
•
Dr Gorgioski considered that the plaintiff had two separate problems – her low-back and the groin: (T93, L27-30).
•
Dr Gorgioski has continued seeing the plaintiff up until January 2010 and over this period the condition has been “stable” and the plaintiff “hasn’t changed much”: (see T98, L16-23).
•
Dr Gorgioski has not recorded or observed any neurological signs over the years that he has been treating the plaintiff: (see generally T101, L4-28).
•
Dr Gorgioski supplied Exhibit 4, that is a Certificate of Capacity dated 14 July 2005 wherein he stated that the plaintiff was “fit for alternative duties, no lifting, no bending, four hours per day and no pushing and pulling”. At that time Dr Gorgioski considered the plaintiff fit for such alternative work: (see T101, L29 – T102, L12).
•
In relation to the MRI scans, Dr Gorgioski relies in the radiologist’s opinion and also the opinion of Mr Barrett who is “a very very experienced orthopaedic surgeon”.
•
The MRI report of 12 April 2005 refers to “multi-level lumbar spine mild disc degeneration with annular disruption at L4-5”. Dr Gorgioski says that the multi-level lower lumbar mild disc degeneration is evidence of the disruption of the discs: (see T109, L4-13).
•
Dr Gorgioski had the first MRI scan report when he gave the plaintiff the Certificate dated 14 July 2005 (Exhibit 4). Dr Gorgioski stressed that the plaintiff was to be reviewed in two weeks to see how she was coping and to avoid “aggravating her condition” (see T110, L19).
•
When asked generally about her capacity for employment, Dr Gorgioski stated:
“Just can I repeat myself. In my opinion, I think she is not fit for her – any physical work or – she’s got no skills, your Honour, no education. Again, I’ll go to travelling and transport and even if it’s two hours a job, it’s not two hours job, it is getting to the job, getting ready for the job and finishing the work. It’s not going to be two hours going and coming.”
(see T115, L18-25).
• Dr Gorgioski has prescribed different anti-inflammatory medications over the years and in particular, Naproxen, with also, on occasion, Voltaren and he is aware that she takes Panamax and Nurofen. He has also prescribed Ducene: (see generally T117). • Dr Gorgioski is of the opinion that “she can’t be retrained and re- educated”: (see T120, L14-17). 47 Under re-examination, Dr Gorgioski gave the following pertinent evidence:
•
Other than the initial certificate in July 2005, Dr Gorgioski has supplied the plaintiff with certificates for total incapacity: (see T124, L5-11).
48 Mr Brian Barrett, the treating orthopaedic surgeon, has supplied reports dated 2 August 2005 (see page 51 of Exhibit 5); 24 October 2005 (see page 55 of Exhibit 5); 30 January 2009 (see page 58 of Exhibit 5); and 28 October 2009 (see page 66 of Exhibit 5).
49 Mr Barrett initially examined the plaintiff on 13 July 2005 at the request of Dr Gorgioski. At that time, he obtained the following history:
“Mrs Janevski informed me that she had been employed as a Mushroom Picker at Chiquita Mushrooms for some thirteen years when she first complained of low back pain while working in early 2003, subsequently attending her local Medical Practitioner on the 29th of August 2003. X-rays of her lumbar spine were then performed, she was put off work for some two weeks and then subsequently returned to light work, However, her low back pain increased, she returned to see her local Medical Practitioner and was then put off work.
. . .
Mrs Janevski informed me that she had not previously complained of any low back pain or sustained any spinal injuries. However, she had a fall onto her buttocks at work on the 21st of June 1999 but was not off work following that episode. … .”
(see page 51 of Exhibit 5).
50 At the initial examination, Mr Barrett had available the plain x-rays of the lumbar spine taken on 10 September 2003 and the MRI scan undertaken on 12 April 2005.
51 In his first report dated 2 August 2005, Mr Barrett expresses his opinion in the following terms:
“In my opinion Mrs Janevski has sustained some disruption of her lower lumbar intervertebral discs, producing low back pain, commencing in early 2003, later attending her local Medical Practitioner in August that same year, following which x-rays were performed of the lumbar spine. A possible right inguinal hernia was diagnosed by the WorkCover Doctor, subsequently repaired operatively but her low back pain and right buttock, groin and posterior thigh pain has gradually increased since that time.
Following my clinical orthopaedic and radiological examination of Mrs Janevski on the 13 of July 2005 I consider she has sustained some disruption involving lower lumbar intervertebral discs, confirmed with an MRI of the lumbar spine carried out in April 2005.
I consider that Mrs Janevski is not fit to return to her former work or even to light and part time work in her present state and may even require further radiological investigations to prove the severity of her lumbar disc injury.
. . .
I consider Mrs Janevski’s injuries are a direct result of her repeated bending and lifting situations in the course of her work with Chiquita Mushrooms, commencing during early 2003, forcing her to attend her local Medical Practitioner in August that year and being put off work.
. . . .”
52 In his report dated 30 January 2009, Mr Barrett notes that he last saw the plaintiff on 18 January 2008 and 27 January 2009, at which times the plaintiff complained of experiencing severe low-back pain and moderate pain of the right posterior thigh region, not below knee level, and also pain into both groins, particularly the right groin.
53 Mr Barrett requested a further MRI scan which was undertaken on 8 January 2009 and, according to him, this MRI confirms:
“That the lower three lumbar discs are disrupted and desiccated, while
the upper lumbar and lower thoracic discs appear to be normal.”
(see page 63 of Exhibit 5).
54 Mr Barrett was of the opinion, after his last examination, (14 October 2009) that the plaintiff was permanently incapacitated for her pre-injury employment and for “lighter and part-time work now or into the foreseeable future”. Furthermore, that she would not benefit from any further rehabilitation or other forms of medical treatment: (see page 69 of Exhibit 5).
Further Medico-Legal Reports
55 The solicitors for the defendant (or its agent) arranged for the plaintiff to be medico-legally examined by the orthopaedic surgeon, Mr Jonathan Hooper, on 5 May 2009 (see report dated 7 May 2009 at page 9 of Exhibit A) and on 14 September 2009 (see report dated 18 September 2009 at page 6 of Exhibit-A).
56 When Mr Hooper first examined the plaintiff, he obtained the following history:
“She told me that she had been working for the Mushroom Exchange for approximately thirteen years. She said that in 2003, whilst bending, she developed back pain.
She said she had never had any previous back pain problems … [prior to] this incident, but on reading the reports from Brian Barrett, he said she fell in 1999. She did not mention this to me, but when mentioned to her she did recall this incident and said she took no time off work.
She said that following this incident, she spent one year doing light work, but ceased work in 2004 following a hernia operation on the right hand side. She said she did not feel that the hernia operation helped her and I am not in a position to comment on this.
She said she has not worked since that time. She was sacked from her work.”
(see page 9 of Exhibit A).
57 Mr Hooper had available to him the MRI scan taken on 8 January 2009 (see page 64 of Exhibit 5) which he considered revealed “degenerative disc disease involving the lower three discs”. Furthermore, he was of the opinion that the incident at work “aggravated” her pre-existing degenerative disc disease and right inguinal hernia. At that time, he considered the plaintiff fit to return to light duties but should avoid work involving bending or lifting work.
58 In his later report, Mr Hooper notes that he obtained a history that the plaintiff told him that her back “is getting worse”. He noted, on examination that:
“She moves well around the office, though I did have the feeling that she was not co-operating during the examination. Her spinal movements are only 30 degrees of flexion, though she will extend to 30 degrees. Lateral flexion and rotation are 20 degrees in either direction.
She got on and off the couch with ease, though on the couch, straight leg raising was only 30 degrees, she could easily sit and touch her toes. She moved around the office with ease.
No neurological signs were present. return to her usual work, though it would be possible for her to get back to light work if she was so motivated to do so. She was adamant that she could not work and was not planning to return to work. We discussed returning to work as a machinist, she said she could not sit for long periods and do that.”
No new x-rays are apparent.
(see pages 6 to 7 of Exhibit A).
59 Although obviously believing her work had aggravated her pre-existing degenerative problem in the lumbar spine, Mr Hooper, after his second examination, considered that such aggravation had now “ceased” and that the condition of the plaintiff was due to degenerative disease in her spine. He does state that if she has a 5 per cent impairment of her low-back, 4 per cent is due to the underlying pathology and one per cent due to her work-related problems.
60 Various medical reports have been tendered by the defendant (see pages 24 to 44 of Exhibit A) which relate to her left elbow injury over the period from 1986 to 1989. Similarly, Exhibit 6, which is the plaintiff’s Supplementary Court Book, contains a variety of medical reports also in relation to the left elbow injury.
Vocational Report
61 The solicitors for the plaintiff have obtained an “Employment Assessment” from Flexi Personnel dated 10 December 2009 (see page 70 of Exhibit 5). The authoress of such report, Ms Kaye Angel, a so-called human resource consultant, ultimately opines that she considers the plaintiff would be capable of finding “suitable employment or, as being retrained into any alternative vocation”: (see page 78 of Exhibit 5).
Analysis of the Evidence
62 It is perhaps appropriate to initially make reference to the veracity of the plaintiff and her reliability as a witness. I do find that at all material times, the plaintiff was aware of her employment with Serv Pack Pty Ltd as a machine operator from 1985, during which time she suffered a left elbow injury in or about January 1986 causing her to be off work receiving weekly payments of compensation up until a month or two before commencing with the defendant on 20 November 1999. She consciously and deliberately omitted those facts from her first affidavit because she “thought it was going affect my – this case” (see T157, L1-2). Furthermore, she compounded this situation by her second affidavit when she became aware of this history when shown various documents in the response material supplied by the defendant.
63 Although accepting that this deliberate omission relates to another employment and indeed has nothing to do with any type of back injury, I have come to the view that I cannot accept the plaintiff as a witness of credit and accordingly, approach her evidence with a great degree of caution.
64 In passing, counsel for the defendant also submitted that the “credibility” of the plaintiff was also impugned by the events surrounding her commencement of employment with the defendant. He refers to the various medical material relied on by the plaintiff in or about 1989 suggesting that her left elbow injury was significant and that payments were made up to a short time before her commencement with the defendant which would suggest, it is submitted, she was not as ill as she made out to her doctors, bearing in mind that she commenced her employment with the defendant as a mushroom picker involving both arms.
In a similar way, counsel for the plaintiff seeks me to draw a similar conclusion about her present status. I do not accept such submission as it would require an inquiry as to the nature and extent of her left elbow injury in 1989 and the drawing of an inference that again she is putting on such a display to maximise her entitlements. Such a proposition is put in the context of her demonstrating a capacity for employment from 1989 up to when she ceased with the defendant in 2004.
65 Accordingly, although I am of the view that the deliberate admission of the evidence surrounding her left elbow injury goes to her credit, I do not draw any inference about her activities in 1989 which are relevant to her present situation.
66 I also find that the plaintiff is an unreliable witness, particularly in relation to the variety of histories that she has given to doctors over the years. It is to be stressed that in her first affidavit, the plaintiff relates her low-back problem to a specific incident in July 2003 when she experienced a sharp and strong low- back and groin pain which extended into “my right hip” (see page 17 of Exhibit 5). Under cross-examination, she blamed that particular incident for her “current condition” (T53, L27-28). However, it is to be noted that paragraph 1 of her first affidavit states:
“I suffered injuries in the course of my employment with Mushroom Exchange Pty Ltd (formerly Chiquita Mushrooms Pty Ltd) … and which injuries occurred or became manifest between about July and August 2003. … .”
67 Indeed, as I read the various histories, certainly in those histories at and around 2003 and 2004, there is no particular history of a specific incident in July 2003 as alleged in the first affidavit.
68 I am conscious that having found the plaintiff not to be a credible witness, such a finding would also throw doubt on the reliability of medical opinions based on the histories given by the plaintiff to the various doctors. However, having formed an unfavourable view as to the credibility of the plaintiff, it is incumbent on the Court to assess any independent or objective evidence said to support the case of the plaintiff (see Forder v Hutchinson [2005] VSCA 281, and in particular at paragraph [42], per Nettle JA). Also, I refer to Barneveld v Hume City Council [2004] VSC 350, wherein, at paragraph [24] Redlich J discussed the evaluation of other evidence in coming to a determination of a factual matter where the credibility of the plaintiff is in issue.
69 The factual issues in this matter are also made more complex by the following matters:
(a)
There is no evidence before the Court from the initial treating general practitioner, Dr Senguttuvan. I was advised by both parties from the Bar table that consistent with the plaintiff’s affidavit material, no report could be obtained from that particular doctor. Furthermore, I was also informed that her notes have been supbeoned to the Court and seemingly, the plaintiff was not challenged during cross-examination in relation to any aspect of those notes;
(b)
Although the English of the plaintiff was reasonable, she ultimately transferred to Dr Gorgioski as he spoke her language. In court, the plaintiff answered many questions in English but on occasion did defer to the interpreter. Counsel for the defendant submitted that such a course was effectively a ruse on the part of the plaintiff to allow her more time to answer the question. I did not obtain such impression and consider that her reliance on the interpreter was to make sure that she did understand the question before answering;
(c)
The overall situation is made more difficult when it is reasonably open to infer that initially, there was an issue as to whether or not the plaintiff had suffered a back injury, a hernia injury, a hip injury or all three. Perhaps a report from the initial general practitioner would have elucidated this issue. However, it is to be noted, for example, that when Mr Russell examined the plaintiff on 23 February 2005, she was complaining of pain in her right lateral lower back which Mr Russell noted she refers to as her “hip”;
(d)
I am also conscious of the type of work that the plaintiff performed with the defendant which involves bending, reaching, twisting and the carrying of trays laden with mushrooms. The system of work also involved a bonus system renumerating workers for the number of trays of mushrooms picked on any particular day;
70 There are certainly contemporaneous histories given by the plaintiff to the physiotherapist, Ms McGrath, the general surgeon, Mr Atkin, the general surgeon, Mr Gya, and the general surgeon, Mr Russell, of quite dramatic symptoms in her low-back and right buttock. Furthermore, it would also appear that plain x-rays and an early CT scan of her lumbar spine were undertaken.
71 On balance, I do find that it is probable that the employment of the plaintiff by the defendant after October 1999 did contribute to a “back injury” manifesting in symptoms from about 2003 onwards. In forming such a view, I do put some weight on the type of work that the plaintiff was performing at least until 2003 which involved twisting, turning and lifting.
72 Various opinions exist as to the nature of such “back injury” and indeed its permanency. Whereas Mr Russell considered that the plaintiff had degenerative changes in her spine and such changes had not been affected by her employment, the orthopaedic surgeon, Mr Hooper, considered that she had aggravated such pre-existing change although by the time of his last examination, considered such aggravation had “ceased”. Curiously though, he considered that there was a work contribution of 20 per cent to her present back impairment with the balance being due to pre-existing degenerative change.
Against that, is the evidence of Dr Gorgioski, the treating general practitioner since 7 April 2005, and the treating orthopaedic specialist, Mr Barrett. Both of these doctors, are of the view that her employment with the defendant, and in particular her repeated bending and lifting situations, caused lower lumbar intervertebral disc disruptions at least at the L4-5 and L5-S1 lumbar discs. I formed that the view that the opinion of Dr Gorgioski was essentially based on the views of Mr Barrett and to this end, Mr Barrett was of the view that the MRI scans and her clinical presentation supported his diagnosis. Mr Barrett was not cross-examined.
Both doctors thought that the she was effectively totally and permanently incapacitated for work and unable to be retrained or re-educated to any other type of employment. It is to be noted that according to Mr Barrett, he had access to the MRI scan and thus causing him to come to the view expressed in relation to the ruptures.
73 With some slight reservation, I tend to accept the views of the treating general practitioner and treating specialists over those of Mr Hooper and Mr Russell.
74 I find that the plaintiff is effectively totally and probably permanently incapacitated for employment resulting from her back impairment, a cause of which is her compensable injury. Accordingly, her “after injury earnings” are nil and accordingly, she satisfies s.134AB(38)(b)(i) of the Act. Furthermore, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more and accordingly, satisfies s.134AB(38)(e)(ii) of the Act.
75 Accordingly, I am satisfied that the plaintiff has discharged her onus in relation to the test for establishing loss of earning capacity consequences and applying the principles established in Abdulle,[1] I also find that the plaintiff has discharged her onus in satisfying the requirements of the narrative test.
[1] Advanced Wire & Cable Pty Ltd v Abdulle (supra)
Conclusion
76 Pursuant to s.134AB(16)(b) of the Act, I grant leave to the plaintiff to bring proceedings for recovery of damages in respect of “pain and suffering” and “pecuniary loss” as a result of a low-back injury suffered during the course of her employment from October 1999 to 2004 and in particular, in July 2003.
77 I will hear the parties on the question of costs.
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