Jarcevic v Squarecon Pty Ltd
[2016] VCC 1225
•24 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03180
| NATASA JARCEVIC | Plaintiff |
| v | |
| SQUARECON PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2016 | |
DATE OF JUDGMENT: | 24 August 2016 | |
CASE MAY BE CITED AS: | Jarcevic v Squarecon Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1225 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the lower back – lumbar spondylosis – disc protrusion – defendant concedes pain and suffering – loss of earning capacity – cleaner – lifting incident – trust distributions
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith with Mr E Makowski | Zaparas Lawyers |
| For the Defendant | Mr P Trigar | Russell Kennedy |
HER HONOUR:
Preliminary
1 The plaintiff worked for the defendant as a cleaner. She claims to have suffered injury to her lower back as a consequence of the nature of these duties, as well as an incident on 5 March 2012 in which she lifted a heavy wheelie bin (“the lifting incident”).
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity.
3 Mr S Smith appeared with Mr E Makowski for the plaintiff and Mr P Trigar appeared for the defendant.
4 The plaintiff claims she suffered injury to her lower back, with referred pain into her left leg. The body function said to be lost or impaired is the lumbar spine.
5 The plaintiff was called to give evidence and was cross-examined. Numerous medical reports and other documents were also tendered in evidence. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.
6At the commencement of the hearing, the defendant conceded that the plaintiff has a serious injury for pain and suffering purposes. Therefore, I need only determine if the plaintiff suffers the requisite loss of earning capacity. The onus is on the plaintiff to satisfy me that:
(a) she has sustained a loss of earning capacity of 40 per cent or more; and
(b)she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.[1]
[1]s134AB(38)(e) of the Act
Relevant background
7 The plaintiff is 35 years of age. She lives with her husband and three children aged 10, 8 and 8 months.
8 The plaintiff was born in Croatia, where she attended school to the equivalent of Year 8. The plaintiff then moved with her family to a refugee camp, where she lived for five years and completed schooling to the equivalent of Year 11. The plaintiff then worked in a milk bar before migrating to Australia in 2000.
9 Upon arrival in Australia, the plaintiff studied English for 13 months, before completing an Advanced Diploma in Accounting at TAFE.
10 In May 2004, the plaintiff commenced employment with Nine West as an accounts clerk. She worked for about two years before leaving to care for her first child, born in May 2006. She remained at home following the birth of her second child in January 2008.
11 The plaintiff’s husband had established a cleaning business, the defendant in this proceeding, in 2008. Since that time, the plaintiff had received trust distributions from the business, but was not employed by the defendant until she commenced work as a cleaner in October 2011.
12 The plaintiff was cross-examined as to the distributions she received from the trust and accepted she received the following amounts each financial year:
· 2009 - $33,191[2]
[2]Transcript (“T”) 22, Line(s) (“L”) 11-14
· 2010 - $57,489[3]
[3]T23, L27-30; T24, L1
· 2011 - $67,876[4]
· 2012 - $33,894[5]
[4]T24, L2-5
[5] Exhibit 3 – Financial Statement for the Jarcevic Family Trust for Financial Year ending 30 June 2012
13 The defendant conceded that the trust distributions did not reflect any personal exertion by the plaintiff for the business.[6]
[6]T13, L16-20; T23, L17-20
14 Prior to suffering her injury, the plaintiff said she was fit and well.
The injury and its consequences
15 In October 2011, the plaintiff commenced employment with the defendant. She worked 38 hours per week, and was paid $1,169.64 per week. This equates to an hourly rate of $30.78.[7] The plaintiff understood her pay rate to be based upon an industrial award or union agreement.[8] She also acknowledged the other cleaners employed by the defendant were paid $25 per hour.[9]
[7]Exhibit 2 - Payments to the Plaintiff from the Defendant as at 8 March 2012
[8]T19, L13-20
[9]T20, L16-18
16 The plaintiff was responsible for cleaning a newly built apartment building in Camberwell. She was required to make the apartments inhabitable by removing rubbish, sweeping and mopping floors, cleaning windows and cleaning bathrooms and kitchens. In cross-examination, she said that this particular job in Camberwell finished by mid-March 2012.[10]
[10]T19, L23-30; T20, L1-2
17 The plaintiff claims that in January 2012, she began to experience discomfort in her lower back such that she would need to rest at the end of the day. She did not seek medical treatment at that time.[11]
[11]Plaintiff’s Court Book (“PCB”) 13 and 21, L11-12
18 On 5 March 2012, the plaintiff moved a heavy wheelie bin up a small step from an apartment balcony into an apartment. This caused her to experience lower back pain.
19 That evening the plaintiff took painkilling medication and rested. She then felt better and returned to work the next day.
20 On 6 March 2012, while carrying out her cleaning duties, the plaintiff filled a bucket with about 15 litres of water. Upon lifting the bucket, the plaintiff said that she felt acute pain in her mid to lower back, which radiated through her left buttock to her left leg.
21 The plaintiff sought treatment from general practitioner, Dr Iphigenia Chronas. Dr Chronas certified the plaintiff as unfit for work.[12]
[12]PCB 14 and PCB 35
22 At the time she suffered her injury, the plaintiff was enrolled in a Bachelor of Business and Accounting Course at Victoria University.[13] However, she did not proceed with this study as she suffered a lot of pain, and she believed that her concentration was not as good as it was before she was injured.[14]
[13]T20, L29-30; T21, L11-12
[14]T22, L6-9
23 On 2 April 2012, an MRI scan was performed on the plaintiff’s lumbar spine. It demonstrated small disc protrusions at T1-L1 and L5-S1.[15]
[15]PCB 128
24 In May 2012, the plaintiff was referred to orthopaedic surgeon, Mr Justin Hunt. He considered the plaintiff suffered lower back pain and leg symptoms secondary to a work-related injury, with symptomatic lumbar spondylosis and degenerative change at the L5-S1 motion segment.[16] Mr Hunt recommended a CT guided epidural injection. The plaintiff elected not to have this procedure, however, as the treatment was not guaranteed to improve the pain in her lower back and she was concerned about the risk of complications.[17]
[16]PCB 46
[17]PCB 14
25 At that time, the plaintiff underwent physiotherapy and hydrotherapy. She was also prescribed Panadeine Forte, Panadeine and Nurofen Plus.
26 In August 2012, the plaintiff returned to work on light duties. She commenced working two hours a week, eventually increasing to nine hours a week. The plaintiff said her pain increased during this period.[18]
[18]PCB 14
27 The plaintiff then sought treatment from her usual general practitioner, Dr Peter Andrianakis. Dr Andrianakis certified the plaintiff unfit for work from about August or September 2012.[19]
[19]PCB 14
28 In October 2013, the plaintiff was referred to a psychologist, to help deal with emotional problems associated with her ongoing back pain.
29 In January 2014, the plaintiff was referred to pain specialist, Dr Clayton Thomas. He recommended that the plaintiff undergo a multidisciplinary rehabilitation program. The plaintiff commenced and completed phase one of this program in April and May 2014. The plaintiff then commenced phase two of the program, but stopped after one week. She felt she had not made any progress, and noted all the other participants had dropped out.[20]
[20]T28, L4-13
30 Dr Thomas reviewed the plaintiff in June 2014. At that time, he noted she had non-specific lower back tenderness, with some non-organic components. He felt she had developed an element of chronic pain syndrome with a psychological component. Dr Thomas felt the plaintiff was unfit for pre-injury duties, but that she did have some work capacity within restrictions.[21] Dr Thomas did not state what those restrictions should be.
[21]PCB 79
31 In March 2014, the plaintiff attended a two day MYOB refresher course.[22]
[22]Defendant’s Court Book (“DCB”) 134, T21, L30; T22, L1
32 In June 2014, the plaintiff attempted to obtain part time employment with numerous companies and businesses. The plaintiff said she had identified such jobs on websites including “seek.com.au”.[23] Over a four month period, the plaintiff applied for over 100 jobs, but was unsuccessful in her applications.[24] By October 2014, due to the lack of response in online job applications, the plaintiff began making enquiries as to work prospects with family, friends and parents at her child’s school.[25] However, no such employment was obtained.
[23]T32, L5-10
[24]Exhibit 1 - Plaintiff’s record of job applications covering period 19 June 2014 - 30 October 2014
[25]T30, L17-22
33 In November 2014, the plaintiff was referred to neurosurgeon, Professor Richard Bittar. He diagnosed the plaintiff as suffering aggravation of lumbar spondylosis, with a differential diagnosis of discogenic pain, as well as facet joint-related pain. Professor Bittar considered the plaintiff totally incapacitated for work.[26]
[26]PCB 53
34 Professor Bittar reviewed the plaintiff in April 2016. At that time, he felt the plaintiff was likely “to suffer from significant pain and disability into the foreseeable future.”[27] He noted that the plaintiff was undertaking a pain management program which he hoped would assist her in coping better with her pain.
[27]PCB 59
35 Professor Bittar was of the opinion that the plaintiff’s inability to sit or stand for more than 20 minutes without experiencing a significant flare-up of pain, would make it difficult for her to engage in regular remunerative work, as a bookkeeper, clerical administrative officer or customer service assistant, without exacerbating her condition. Further, Professor Bittar expressed concern that the plaintiff may not be able to undertake such work in a reliable and consistent manner. He also felt that the plaintiff’s constant pain would make it difficult for her to concentrate, such that the quality of her work would be adversely affected.
36 On 11 May 2016, Professor Bittar arranged for a weight bearing MRI scan to be performed on the plaintiff’s spine. This scan demonstrated facet joint arthropathy bilaterally at L3-4 and L4-5, together with a right posterior lateral disc bulge at L5-S1, contacting the right S1 nerve root.
37 Professor Bittar noted that the findings excluded any left-sided neural compression, and confirmed his diagnosis that the plaintiff was suffering discogenic and/or facet joint-related pain.
38 In December 2014, the plaintiff was referred to pain specialist, Dr Symon McCallum. He arranged for an injection of local anesthetic and steroid into the plaintiff’s left hip.[28] The plaintiff said that the injection did not help her lower back pain.[29]
[28]PCB 69
[29]PCB 23
39 Dr McCallum considered that the plaintiff would be unlikely to obtain regular, remunerative work as a bookkeeper, clerical administrative officer or customer services assistant.[30] As Dr McCallum does not elaborate on the plaintiff’s physical capacity to perform such work, his opinion appears to be based upon the plaintiff’s unsuccessful attempts to obtain such work. It is therefore of little assistance to me.
[30]PCB 74
40 In early 2016, Dr McCallum also arranged for the plaintiff to complete a multidisciplinary pain rehabilitation program, which she completed by May 2016. The plaintiff felt that she gained more from this pain management program than the one she completed in April 2014. The plaintiff said it was educational, in that it taught her how to better deal with her constant back pain. She also learnt exercises to increase the strength in her back.[31] The plaintiff continues to do these exercises at home on a daily basis.
[31]PCB 23
41 In December 2015, the plaintiff gave birth to her third child.
42 The plaintiff said that she suffers constant back pain, which fluctuates in intensity, and that some days are better than others.[32]
[32]PCB 23
43 The plaintiff currently takes four to six Panadol Osteo most days of the week, and about two Panadeine Forte tablets per week.[33] She does not take the Panadeine Forte when she is alone with her baby, as it makes her drowsy.
[33]PCB 22
44 The plaintiff has not worked since August 2012.
45 The plaintiff said that she would like to return to some sort of work, but she is concerned about her reliability given the unpredictable nature of her back pain.[34] The plaintiff said her back pain regularly flares up, at which time she needs to lie down and take medication. The plaintiff also said that prolonged sitting and standing causes an increase in her back pain.
[34]PCB 24
46 There is no medical report from Dr Andrianakis, despite repeated requests from the plaintiff’s solicitors. I note, however, that Dr Andrianakis has continued to provide the plaintiff with certificates of capacity, and that her most recent certificate, dated 15 July 2016, stated that the plaintiff had no capacity for employment.[35]
[35]Exhibit B - Plaintiff’s Certificates of Capacity covering period 26 March 2016 to 18 September 2016
Medico-legal evidence
47 The plaintiff’s solicitors arranged for the plaintiff to be examined by neurosurgeon, Mr Peter Dohrmann, in February 2013 and June 2015. In his first report dated 19 February 2013, Mr Dohrmann considered that the plaintiff suffered chronic lower back pain and referred left leg pain associated with an L5-S1 disc lesion, but without evidence of radiculopathy.[36] At that time, he considered that while the plaintiff was unfit for pre-injury work, she had the capacity for partial employment in alternative duties. Mr Dohrmann stated that the plaintiff should not be expected to engage in work involving repeated bending, twisting or the lifting of weights greater than 5 kilograms. He also stated that if the plaintiff was to undertake part-time work of a clerical or administrative nature, she should not be expected to sit for more than 30 minutes at a time without taking a short break.
[36]PCB 86
48 In his report dated 26 June 2015, Mr Dohrmann noted that the plaintiff’s symptoms had not changed appreciably since his first report. He again considered that the plaintiff had the capacity for alternative employment, on a part-time basis, provided she was not expected to sit for more than 30 minutes at a time without a break. [37] Mr Dohrmann considered the plaintiff was likely to experience fluctuating back and leg pain for the foreseeable future, but noted the possibility of a gradual improvement in her symptoms over time.
[37]PCB 94
49 In his supplementary report dated 13 August 2015, Mr Dohrmann further detailed his opinion as to the plaintiff’s capacity for work. He stated that if suitable employment was to become available, then the plaintiff would need to resume work on a graduated basis. He suggested the plaintiff initially work two hours per day, three days per week and that, subject to her symptoms, she could increase to a maximum of four hours per day, five days per week. Mr Dohrmann restated his earlier opinion, that such work should not require any bending, lifting or twisting motions and noted that the plaintiff should be free to move about as required.[38]
[38]PCB 97
50 The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Joseph Slesenger, in December 2014 and May 2016. In his first report, dated 24 January 2015, Dr Slesenger diagnosed the plaintiff with symptomatic thoracic and lumbar spinal degenerative disease with radicular symptoms, but no evidence of radiculopathy on clinical examination. He considered her unfit to return to pre-injury duties, but capable of alternative duties, provided they were limited to four hours per day, four days per week.[39]
[39]PCB 106
51 In his report dated 24 May 2016, Dr Slesenger considered that the plaintiff was suffering aggravation of degenerative disease in the lumbar spine, chronic pain disorder and psychological impairment. Dr Slesenger considered the plaintiff was unfit to return to her pre-injury duties. With regard to alternative duties, he stated the following restrictions:
·no push, pull, carry or lift over 5 kilograms;
·no repetitive bending or twisting;
·sit and stand as required;
·four hours a day, four days a week; Monday, Tuesday, Thursday and Friday.[40]
[40]PCB 115
52 Dr Slesenger did not anticipate the plaintiff attending work on “a consistent and reliable basis”[41] given the severe nature of the plaintiff’s symptoms, and the variability and unpredictable nature of such symptoms. Dr Slesenger considered the plaintiff’s prognosis guarded due to her poor response to the pain management program.
[41]PCB 115
53 The plaintiff’s solicitors also arranged for the plaintiff to be examined by musculoskeletal pain medicine specialist, Dr David Vivian, in May 2015 and June 2016. In his first report dated 30 May 2015, Dr Vivian diagnosed a lumbar disc injury. Dr Vivian considered the plaintiff had a significant disability and was unfit for work of any description.
54 In his second report dated 4 June 2016, provided after the MRI scan of 11 May 2016, Dr Vivian diagnosed the plaintiff as suffering lumbar discogenic pain at L5-S1, lumbar facet joint pain and sacroiliac joint or sacroiliac ligamentous pain.[42] Dr Vivian considered the plaintiff unfit for her pre-injury duties. He felt that she would be unfit for a job involving bending and lifting, even for brief periods. Dr Vivian also considered the plaintiff would be unfit for sedentary work, as she could only sit for short periods. He felt that if she was to obtain a job, it would need to be part time, with versatility of posture.[43] Dr Vivian expressed concern that the plaintiff’s pain levels would affect her ability to concentrate at work, given her baseline levels of pain were described as being 5 to 6 out of 10. Dr Vivian considered the plaintiff’s pain would persist in the long term, but noted there may be some marginal symptomatic improvement over the years.[44]
[42]PCB 125
[43]PCB 125
[44]PCB 126
55 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Clive Jones, in November 2012 and June 2013. In his first report dated 7 December 2012, Mr Jones considered the plaintiff had discogenic back pain. He was of the opinion that, at that time, the plaintiff was unfit to return to either her pre-injury duties, or alternative duties.[45]
[45]DCB 76
56 In his second report dated 5 July 2013, Mr Jones noted there had been little change in the plaintiff’s symptoms. While he maintained his opinion that the plaintiff was unable to return to pre-injury duties and hours, Mr Jones felt there was a possibility that she may be able to return to some form of employment in the future. At that time, however, he was unable to state what restrictions would be necessary.[46]
[46]DCB 84
57 The defendant also arranged for the plaintiff to be examined by occupational physician, Dr Malcom Brown, in April 2014 and July 2016. In his first report dated 7 April 2014, Dr Brown stated the plaintiff had uncomplicated lower back pain. He felt that at that time she had a current work capacity, but noted it was quite restricted.[47] Dr Brown considered the plaintiff could work half shifts, and do non-physically demanding tasks. Dr Brown considered that the plaintiff’s work capacity was likely to significantly improve if she complied with an appropriate exercise program.
[47]DCB 95
58 In his second report dated 19 July 2016, Dr Brown noted that:
“There had been little change and she continues to have central low back pain with some radiation into the left leg.”
59 Dr Brown considered the plaintiff suffered lower back pain, with no clinical or radiological evidence of a serious spinal injury. He was of the opinion that the recent MRI scan had little clinical significance.[48] Dr Brown commented that the plaintiff:
“… has low back pain of a type which is widespread in the general population, with little radiological evidence of serious pathology, but difficulty with bending and lifting and other physically demanding activities at home and at work. Provided such individuals avoid heavy manual work, they are almost always able to sustain full time employment over the longer term … “[49]
[48]DCB 96.3
[49]DCB 96
60 Dr Brown considered the plaintiff had the capacity for full-time suitable employment, provided there was no frequent bending or heavy lifting, or constant standing in the one position.
61 The defendant tendered numerous vocational assessment reports prepared by Work Focus Australia. These reports identified potential jobs which the plaintiff may be able to perform, and the likely average earnings for a full time position:
· Bookkeeper – $1,023 gross per week;
· Clerical and administrative officer – $1,179 gross per week;
· Customer service assistant – $770 gross per week.
Credibility
62 I consider the plaintiff gave evidence in a simple, straightforward and believable manner.
63 The plaintiff was not challenged in respect of either the nature and severity of her back pain, or the consequences she claimed in her affidavits sworn 5 February 2014, 25 September 2015 and 27 July 2016.
64 The plaintiff was cross-examined as to the contents of her taxation returns and, in particular, the trust distributions she received from her husband’s business. Mr Trigar submitted that such income was relevant as it goes to the plaintiff’s motivation.[50]
[50]T41, L6
65 I do not accept this submission. I consider the plaintiff to be very impressive and genuine in the evidence that she gave. She had returned to full-time work with two young children. I accept, that if not for her back injury, the plaintiff would have returned to part-time work when her youngest child turned one, and later to full-time work.
Permanent
66 The plaintiff must prove that the injury and its consequences are both serious and permanent. It is to be considered a permanent injury if “it will probably persist and there will be no significant improvement over time”.[51]
[51]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [19]
67 I am satisfied that the consequences which flow from the plaintiff’s injury are permanent. The pain has persisted for over five years. There is no recommendation that she undergo surgery or any other type of treatment which may lead to an improvement. Her treatment regime has been the same for the last few years and even after the recent pain management course, her condition has not improved.
Loss of earning capacity
68To succeed in her application, the plaintiff has the onus of satisfying me that as at the date of hearing, that as a consequence of her lower back injury, she has sustained a loss of earning capacity of 40 per cent or more; and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
69The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[52]
[52]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
70In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with her pre-injury earning capacity.
71 To determine the plaintiff’s pre-injury earning capacity I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had she not suffered the injury:
“a. the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
b. the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[53]
[53]s134AB(38)(f)
72Mr Smith submitted that the gross weekly income the plaintiff received for the six months she worked for the defendant, is the figure which most fairly reflects her pre-injury earning capacity.
73Mr Trigar submitted that the gross annual earnings from such employment should be averaged over the course of that financial year, to take account of the plaintiff not working for a period of time when she was caring for her children, as well as the prospect the plaintiff would have been unemployed when the Camberwell cleaning job finished in mid-March 2012.
74I do not accept Mr Trigar’s submission that the plaintiff’s earnings should be averaged over the financial year. I must determine the figure which most fairly reflects her pre-injury earning capacity. The plaintiff should not be penalised for a period in which she was caring for her children and not working. Further, there is no evidence to support Mr Trigar’s submission that the plaintiff would not have obtained any further cleaning work once the Camberwell job had finished.
75The plaintiff’s gross weekly wage with the defendant was based upon an hourly rate of $30.78. The plaintiff’s evidence that this hourly rate was based upon an industrial award or union agreement was not challenged. Further, it was the plaintiff’s evidence that her intention had been to work in her husband’s cleaning business, rather than return to a role as an accounts payable clerk. In such circumstances, I accept the sum of $1,169.64 is the figure which most fairly reflects the plaintiff’s pre-injury earning capacity.
76 Applying the statutory test of a permanent loss of at least 40 per cent, I must be satisfied the plaintiff is incapable of earning no more than $701.78 per week, and that such a restriction on her earning capacity will be permanent.
77The plaintiff is not currently working. All the doctors accept that the plaintiff is unfit for her pre-injury duties as a cleaner. As such, the issue for me to determine is what the plaintiff would be capable of earning in suitable employment.
78Dr Andrianakis continues to certify that the plaintiff is incapacitated for all work. However, as there is no report from Dr Andrianakis, I do not know the basis of his certification.
79Dr Vivian expressed concern as to the plaintiff’s ability to concentrate at work, given her baseline levels of pain. I accept this is a risk for the plaintiff, but I do not accept that it renders her totally unfit for any suitable employment.
80Mr Dohrmann considered the plaintiff capable of part-time work, in alternative employment, provided she was not expected to sit for more than 30 minutes at a time without a break. He considered the plaintiff could work up to 20 hours per week.
81Dr Slesenger offered a similar opinion to Mr Dohrmann, in that he felt the plaintiff could attempt a graduated return to work, increasing up to 16 hours a week. Dr Slesenger expressed concern as to the plaintiff attending work on a consistent and reliable basis.
82Dr Brown is the only doctor who considered that the plaintiff is now capable of full-time work, in restricted employment. However, two years earlier, Dr Brown considered the plaintiff to have a restricted work capacity, working only half shifts in the roles of bookkeeper, clerical and administrative officer and customer service assistant. In his most recent report, Dr Brown stated that there has been little change in the plaintiff’s condition. As Dr Brown does not explain the basis of his changed opinion, I gain little assistance from his report.
83I am most assisted by the opinions of Mr Dohrmann and Dr Slesenger, as I consider their reports the most realistic. The plaintiff is an intelligent young woman, who presented very well. I accept she is capable of attempting a graduated return to work as a bookkeeper, clerical administrative officer or customer services assistant. Such roles are consistent with the physical restrictions identified by Mr Dohrmann and Dr Slesenger.
84I accept that 20 hours is the plaintiff’s maximum capacity in such suitable employment. I am satisfied that her ongoing pain, including the variability in such pain, and her need for ongoing pain medication, makes the plaintiff incapable of working more hours than 20 hours. It may be that in a graduated return to work, she cannot even reach or sustain 20 hours. However, for the assessment of her current earning capacity in suitable employment, I will calculate her claim on the basis that 20 hours is her maximum capacity.
85If the plaintiff was to work 20 hours a week in the following occupations, then based upon the average full-time weekly earnings (presuming 38 hours a week), none of the occupations would allow the plaintiff to earn more than $701.78 per week:
· Bookkeeper – $1,023 gross per week full time, equates to $26.92 per hour. If the plaintiff worked 20 hours a week, she would earn $538.40 per week;
· Clerical and administrative officer – $1,179 gross per week, equates to $31.02 per hour. If the plaintiff worked 20 hours a week, she would earn $620.52 per week;
· Customer service assistant – $770 gross per week, equates to $20.26 per hour. If the plaintiff worked 20 hours a week, she would earn $405.26 per week.
86For the reasons outlined above, I am satisfied this loss will be permanent.
87Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[54] Given my acceptance that the plaintiff’s lower back injury restricts her to only part-time work, the pecuniary disadvantage to her is so great, that I consider her loss of earning capacity can be described as very considerable.
[54]s134AB(38)(c)
88As the plaintiff has satisfied me that she suffers a serious injury in respect of loss of earning capacity arising from her lumbar spine, it is not necessary for me to consider separately her pain and suffering consequences for that injury.[55]
[55]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
Orders
89I am satisfied that the plaintiff suffers a serious injury to her lumbar spine arising as a consequence of her employment with the defendant, and the consequences are such that she should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
90I will make the consequent orders.
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