Kaur v AHS Hospitality Pty Ltd
[2023] VCC 1915
•26 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-05280
| HARJINDER KAUR | Plaintiff |
| v | |
| AHS HOSPITALITY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2023 | |
DATE OF JUDGMENT: | 26 October 2023 | |
CASE MAY BE CITED AS: | Kaur v AHS Hospitality Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1915 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to function of the spine – paragraphs (a) and (c) – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s5, 325, 335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Meadows v Lichmore [2013] VSCA 201; Fokasv Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authorityv Nguyen [2016] VSCA 284; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms N Wolski with Ms F Blair | Shine Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in the course of, or due to the nature of, her employment as a housekeeper with the defendant on or about 27 August 2019 (“the incident”).
2The plaintiff seeks leave to bring proceedings for damages both in relation to pain and suffering and economic loss. Initially the claim was expressed to be under both paragraphs (a) and (c) of the Act, however neither party led any psychiatric or psychological evidence and during addresses neither party made any reference to a claim under paragraph (c) of the Act. On that basis, in this judgment, I only propose to deal with the paragraph (a) claim.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to paragraph (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘serious injury’ means—
(a)permanent serious impairment or loss of a body function;”
4The physical impairment relied upon is the function of the spine.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on, or after, 1 July 2014. As set out in s325(1), the physical impairment must be permanent.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity”, which must be “serious” – that is, if the plaintiff is to succeed in her claim relating to the function of the spine, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “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”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgement.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8Sections 325(2)(e) and (f) set out the statutory formula by which, in usual circumstances, the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act.
9In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
10Section 325(2)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to physical impairment.
11If it is alleged there is a psychological component to the plaintiff’s pain and suffering presentation,[4] then the Court must determine whether the pain and suffering consequences alleged by the plaintiff have a “substantial organic basis”.[5]
[4] sometimes referred to as “illness behaviour” or “functional overlay”
[5]Meadows v Lichmore [2013] VSCA 201 at paragraphs [21]-[24], per Maxwell ACJ; Fokasv Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authorityv Nguyen [2016] VSCA 284
12It is well established that in serious injury applications where this issue is raised, a two-step process of analysis should be adopted.[6] The first is to ask whether there is a “substantial organic basis” for the pain and suffering consequences relied upon. If that question is answered affirmatively, then the Court may proceed without the need for any “disentangling” of the physical versus the psychological contributions, to the plaintiff’s pain and suffering.[7]
[6]Meadows (ibid) at paragraph [21]
[7]ibid
13By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment arising from the injury the subject of this application, and the range of possible physical impairments.
14In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[8] and Grech v Orica Australia Pty Ltd & Anor.[9]
[8](2005) 14 VR 622
[9](2006) 14 VR 602
15The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from her husband, Mr Bikramjit Singh. Mr Singh was not required to attend for cross-examination.
16In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[10] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[10]The Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
17The plaintiff was born in India in August 1986. She is currently thirty-six years old.[11] She completed Year 12 in 2004 in India. After completing her schooling, she attended the Government College for Women for three years and obtained a Bachelor of Commerce. In 2008, she did a six-month computer course at the Indira Gandhi Institute of Vocational Training. She then attended the Punjab University in India for two years and obtained a Masters of Commerce in 2010. She subsequently obtained full-time employment from approximately December 2010 to November 2012 at a business called “Mother’s Pride” in India, where she managed the accounts.[12]
[11]Ex P1, p31, paragraph [2]
[12]Ex P1, p32, paragraphs [3]-[7]
18The plaintiff migrated to Australia in October 2014. She presently lives with her husband and their two small children.[13]
[13]Ex P1, p32, paragraph [8]
The incident
19The plaintiff described the circumstances of the incident in the following way:
“I commenced part-time employment as a room attendant with the [AHS Hospitality] in July 2015. The … defendant is a hospitality/guest services provider for the accommodation industry. I worked at the premises of the [Adina Apartments (“Adina”)]. [Adina] is an international accommodation chain offering serviced apartments and hotels throughout Australia. [Adina] has apartments located at 88 Flinders Street, Melbourne which were serviced by the … defendant.
…
I worked approximately 30-35 hours per week.
My work duties were physical, fast-paced and required heavy lifting as well as repetitive use of my arms, pushing and pulling, twisting and reaching movements. I also had to regularly lift and push heavy items. I had a time limit to complete each room which depended on the size of the room.
…
I suffered an injury to my low back throughout the course of my employment with the … defendant. My work duties required me to stand, bend, twist and reach out and extend my arms on a repetitive basis for substantial periods of time combined with repetitive heavy lifting. I was required to clean rooms within specified time frames.
On 27 August 2019 I was working as a room attendant at the Adina Apartments. I was lifting a mattress to change the bed sheets when I experienced low back pain and pain in my right leg.
I lodged a WorkCover Claim on or around 9 September 2019 and liability has been accepted.
I was off work until January 2020. In January 2020 I commenced returning to work on light modified duties for 3 hours per day, 3 days per week for approximately one week. Unfortunately, this resulted in an exacerbation of my low back and right leg pain so I ceased work.
...
I first saw Dr Masoud Hakimzadeh, general practitioner on 27 August 2019. He arranged for me to undergo radiological investigations and referred me to physiotherapy treatment and to Dr Helen Maroulis, treating neurosurgeon.
On 28 August 2019 I underwent a CT Scan of my lumbar spine.
...
I first saw Dr Maroulis, treating neurosurgeon on or around 14 November 2019. She explained that as I had multiple lumbar disc prolapses, surgery at one level only in my back would not help me.
I first saw Dr Hazem Akil, treating neurosurgeon on 10 March 2020 for [a] second opinion. He confirmed that I had 3 disc prolapses and that the most significant prolapse was at the level of L4/5 with compression of my right L5 nerve root. He explained that I had right-sided radicular pain as a result and offered to perform a right L4/5 microdiscectomy and rhizolysis. I am reluctant to undergo surgery as I am scared about potential adverse outcomes and there is no 100% guarantee that my pain will resolve. I am also reluctant to proceed as I do not have my family here to support me.
On 12 March 2020 I underwent an MRI Scan of my lumbar spine.”[14]
[14]Ex P1, pp32-35, paragraphs [9]-[25]
Evidence concerning the consequences of the Plaintiff’s injuries
20The plaintiff swore three affidavits, the first dated 26 July 2022, the second dated 4 July 2023, and the third dated 26 July 2023.
21In summary, her evidence as to the pain and suffering and economic loss consequences which she presently experiences, is as follows:
Experience of pain
(a) she suffers from daily constant pain in her low back which fluctuates in intensity. It is aggravated by activity. She has a reduced range of movement in her low back. Occasionally her back “locks up”;[15]
[15]Ex P1, p36, paragraph [32]
(b) she suffers from intermittent referred pain in her right leg, which fluctuates in intensity. It goes down to her right ankle;[16]
[16]Ex P1, p36, paragraph [33]
(c) she experiences intermittent numbness and pins and needles in her right foot. She has significant wasting of her right calf;[17]
[17]Ex P1, pp36-37, paragraphs [34]-[35]
(d) her ongoing low back pain and right leg symptoms can be unpredictable. On approximately two or three occasions per month, she experiences severe low back pain and/or right leg pain, to the point where she is unable to get out of bed. On those days she takes Panadeine Forte and is unable to do anything;[18]
[18]Ex P1, p40, paragraph [2]
Treatment and medication
(e) since the incident, she has undergone various radiological scans including a CT scan and several MRI scans of her lumbar spine. Those scans have confirmed that she has three disc prolapses, with the most significant prolapse being at the level of L4/5 with compression of her right L5 nerve root. It has been explained to her that as a result, she has right-sided radicular pain. She has seen three neurosurgeons: Dr Helen Maroulis and Dr Hazem Akil, who she saw for a second opinion[19] and Dr Mohammed Awad, who she saw for a further neurosurgical opinion in February 2023.[20] In November 2019, as a result of the multi-level disc prolapses from which the plaintiff was then suffering, Dr Maroulis did not recommend that she undergo surgery. When the plaintiff saw Dr Akil in March 2020 for a second opinion, he offered to perform a right L4/5 microdiscectomy and rhizolysis. Dr Awad discussed both surgery and spinal injections with the plaintiff, but no firm decision was made about whether to have either of these treatments (if any), since she was pregnant at that time.[21] She has since formed the view that she is reluctant to undergo surgery or injections into her spine, as she is scared about the potential for adverse outcomes and there is no 100 per cent guarantee that either of these treatments would resolve her pain;[22]
[19] Ex P1, p35, paragraphs [23]-[24]
[20] Ex P1, p41, paragraph [3]
[21] Ex P1, p41, paragraph [3]
[22]Ex P1, p35, paragraphs [23]-[24], p44, paragraph [2]
(f) she was referred to see Dr Symon McCallum, treating pain physician, in September 2020. He offered her the option of participating in a pain management program which she subsequently completed online, with little benefit;[23]
[23]Ex P1, pp35-36, paragraphs [27] and [29]; p42, paragraph [6]
(g) she currently takes Amitriptyline 25 milligrams, Mobic 15 milligrams, Gabapentin 600 milligrams, and six Panadol Osteo tablets daily. She also takes Panadeine Forte as needed when her pain is severe or when she has a “flare-up” of pain. On average she takes one Panadeine Forte tablet 1−3 times per week;[24]
[24]Ex P1, p42, paragraph [7]
(h) she currently sees Dr Masoud Hakimzadeh, general practitioner, once a month, and Mrs Gada, physiotherapist, once per week;[25]
[25]Ex P1, p42, paragraph [8]
Sleep
(i) her sleep is affected by her injuries. She used to have no problem getting to sleep. Now she finds it difficult to fall asleep. At times she can sleep through the night, and at other times she wakes two to three times a night, because of her back or right leg pain;[26]
Activities of daily living
(j) the way in which she is able to interact with her young children is significantly affected by her work injury. She tries to do what she can as a parent, but is limited in being able to participate in physical activities. This saddens her greatly. She finds it hard to carry her children for long periods of time, and her husband has to assist with tasks such as bathing, where she is present but handing him the relevant items such as clothes, rather than actively bathing her children. Her husband also has to assist her to get the children into the car-seats in the car.[27] She was unable to breastfeed her children as she would have liked to do, due to the requirement to repetitively sustain awkward positions for prolonged periods of time. She expressed her breast milk so that her children would have the benefit of that, but at times had to throw it away as she had taken strong medication, which would make the breast milk unsuitable for a baby;[28]
(k) she is much less social than she was before her work injury;[29]
(l) prior to the work injury, she used to do all of the domestic duties such as cooking, cleaning, and washing. Her husband now does all of those duties. She is now only able to go shopping for short periods of time and is only able to carry light shopping bags;[30]
(m) prior to sustaining the work injury, she used to attend at her Sikh temple in Plumpton and Tarneit, once or twice a week to pray and also to help out in the community kitchen to make Indian food. Since her injury she has only attended temple approximately twice per year, and only to pray;[31]
Capacity for employment
(n) she is worried about what the future holds for her. She used to take pride in the hard work that she was doing. There is no way that she could return to her pre-injury duties due to her injury. As a result of her injury, she is also now restricted in her ability to perform work duties requiring prolonged standing, walking, bending, lifting, reaching or twisting. Since migrating to Australia, she has only ever worked as a room attendant;[32]
(o) she was initially off work until January 2020. In January 2020 she returned to work on light modified duties, for three hours per day, three days per week, for approximately one week. Unfortunately, this resulted in an exacerbation of her low back and right leg pain, so she ceased that work;[33]
(p) in July 2021, she tried to provide some beauty services from home, such as waxing, threading and facials. She had approximately six customers, who she knew, but she found that this work exacerbated her low back and leg pain. She ceased it after approximately one week. She has not worked since that time;[34]
[26]Ex P1, p37, paragraph [37]
[27]Ex P1, p37, paragraph [38]
[28] Ex P1, pp41-42, paragraphs [4]-[5]
[29]Ex P1, p38, paragraph [40]
[30]Ex P1, p38, paragraphs [41]-[42]
[31]Ex P1, p42, paragraph [9]
[32]Ex P1, p38, paragraph [43]
[33]Ex P1, p34, paragraph [17]
[34]Ex P1, p34, paragraphs [18]-[19]
Effect on mood and psychological impact of the injury
(q) she feels depressed and anxious as a result of her injuries. At times she cries, as she is unable to do many of the things that she used to be able to do.[35]
[35]Ex P1, p37, paragraph [36]
22Under cross-examination, the plaintiff gave the following relevant evidence:
(a) becoming a mother was important to her, and she was prepared to put up with the increased pain associated with that;[36]
[36]Transcript (“T”) 19, Line/s (“L”) 9-10
(b) she continued having physiotherapy during COVID;[37]
[37]TT19-20
(c) she has seen three neurosurgeons: Dr Maroulis, Dr Akil and Dr Awad. She declined surgery which was advised by Dr Akil. Dr Awad advised that she might benefit from injections into her spine, but she has decided not to have those injections;[38]
[38]T20, L21-31
(d) the reason why she went to see a third neurosurgeon was to see if there was any option other than surgery or taking medication, which might assist with her back pain. The doctors have told her that there is no guarantee that if she had surgery, her pain would resolve;[39]
[39]T21, L5-13
(e) if she did not have her back injury, she would not necessarily be at home looking after the children. She has her family who would assist her with looking after the children so that she could go back to work;[40]
[40]T21, L24-31
(f) the medication Amitriptyline that she takes, is prescribed to her for stress;[41]
[41]T28, L12-17
(g) she agreed that because her husband works as an Uber driver at night-times and on weekends, that limits their opportunities for having a social life;[42]
[42]T29, L1-9
(h) she agreed that in India she qualified with a Bachelor of Commerce and a Masters of Commerce. She had also undertaken and completed a course in relation to computers, and also worked as an accounts manager;[43]
[43]T30, L1-8
(i) she agreed that when she came to Australia, she undertook a course in taxation through H&R Block. She said that it was a one-day course, and that she successfully completed it. She thought that this course qualified her to be a bookkeeper, or to get a job in accounts;[44]
[44]T30, L11-22
(j) she can read and write English;[45]
[45]T30, L27-28
(k) since she has had her children she has not looked for work because “I got back pain, so like – no”;[46]
[46]TT30-31
(l) she does propose to look for a job in the future, but it depends upon her condition and how that is going. It depends on how her pain is at that time;[47]
[47]T31, L6-14
(m) the main barrier to her getting a job is the flare-ups of pain that she experiences. She never knows when the pain flare-ups are going to happen, and they are getting worse. She does not think that in those circumstances she can do any kind of job with that pain, which affects her focus, her concentration, and her memory. She said that this is “very bad now”;[48]
[48]T31, L15-31
(n) she was asked if in the future she thought she could do an office-type role or a clerical job. She said “No, because of this flare-up my life is, you know, totally – because of this injury”;[49]
[49]T32, L11-13
(o) she agreed that she had done an office job before, which included office-based tasks and computer work. She agreed that she has computer abilities and can take telephone calls. In relation to a proposal that she undertake clerical work, she replied:
“Look, the thing with that, you know - the problem is I can do before, you know? The situation is different. My pain flare-up, my pain, not allowing me to do anything, even at home, you know? ... My pain flare-ups, you know, two or three times in a month - sometimes more, sometimes less. ... it’s not possible for me to do the job, you know, with this condition, with this pain - these flare-ups. Uncertain flare-ups.”;[50]
[50]TT33-34
(p) it was suggested to her that part of her inability to work is because of the “mental issues”. In response to this, she replied:
“... I am most of the time in pain. My leg pain, pain is going in my leg, in my back. So this pain, like, most of the time - like you know, my mood - I’m very hard to sit, very hard to stand, can’t sit for a long time, can’t stand for a long time, so these things - like, my pain, you know - to appear to me - to restrict me - my activity. So because it’s going in the leg - so with this leg even, it’s very hard to sit down in court ... So how can I do this kind of job, then?”;[51]
(q) she was pressed on whether or not her inability to work was as a result of “a combination of the pain and your mental reaction to the pain?” To this the plaintiff replied:
“It’s not a combination. It’s just the pain. My pain, my back pain, my physical pain. That restrict my ... activity. It’s not the mental anything, I’m not mental, I’m fine. They think it’s that my pain - my body pain restricts my activity, my job, my household - these activities. Not the mental. That’s physical, yeah.”;[52]
[51]T35, L3-15
[52]T35, L16-23
(r) it was suggested to her that she could take up a role in the form of security as a command centre operator. In response to this line of questioning, she gave very similar answers to the answers she gave in respect of the clerical role;[53]
(s) it was suggested to her that she could undertake a role in a security gatehouse. Again, she gave very similar answers to the answers which she gave in respect of the proposal that she perform a clerical role;[54]
(t) she agreed that she had tried providing beauty services to clients at her home. She said that this role had proved too difficult for her;[55]
(u) she did not think she would be able to take on a role as a home based bookkeeper. She thought her pain and both her restricted ability to sit and to stand would impede her having success in trying to sustain such a role;[56]
(v) she denied needing to see a psychiatrist. In response to this line of questioning, she replied: “The problem is that pain…I’m not mentally sick…”;[57]
(w) she saw a psychologist as part of the pain management program. She now sees her neurosurgeon, her GP and a physiotherapist;[58]
(x) she agreed that she had tried to obtain a qualification as a CPA. She was unable to pass the exam so she stopped pursuing that. She does not intend to pursue it in the future.[59]
[53]TT35-38
[54]TT38-39
[55] TT39-40
[56] TT41-42
[57] T41, L19-27
[58] T43, L4-22
[59] TT43-44
23During re-examination, the plaintiff gave the following relevant evidence:
(a) she is unable to pursue her bookkeeping or other qualifications because her pain affects her ability to concentrate and she finds it hard to sit while studying. She also experiences unpredictable flare-ups of pain which would affect her ability to participate in study;[60]
(b) in relation to her social life, she used to go to the Sikh Temple once or twice a week. Now she goes once or twice a year. She is unable to go to the park and play with her kids. The social activities that would have formed part of these outings, are not available to her any more, because of her back pain and the uncertainty of her flare-ups;[61]
(c) she has not looked for work since having her children, because her back condition restricts her from doing even very light things at home. She was finding it very hard even to sit in the witness box during the case. Her pain flares-up two or three times per month. She never knows when that will happen. When it does happen, she is unable to move. She needs help from another person, even to get her medication, until the flare-up has passed;[62]
(d) it is her pain that causes her concentration, focus and memory issues. She said that the “flare-ups scare me when they happen”;[63]
(e) she would be unable to perform an office based job, or either of the security roles that have been proposed by the defendant on a consistent and reliable basis, because her pain flare-ups are uncertain and they affect her focus and ability to pay full attention.[64]
[60] T44-45
[61] T44-45
[62] TT46-47
[63] T47, L12-20
[64] TT47-48
The lay witness
Mr Bikramjit Singh
24The plaintiff’s husband, Bikramjit Singh, gave the following relevant evidence in an affidavit sworn on 4 July 2023:
(a) he lives with the plaintiff (who is his wife) and their two children in their family home;[65]
[65]Ex P1, p46, paragraph [2]
(b) his wife is a very honest and hardworking person. She has a caring personality. Before the workplace injury, he and the plaintiff did most things together, domestically and socially. They also liked to spend time together with family and friends on the weekend. They liked to go out for dinner together and “hang out” with friends. Sometimes they would go to visit friends, and sometimes they would host friends in their home;
(c) in the summer, he and the plaintiff liked to go to the beach together. In the colder months, they would go for walks together and do window-shopping or travel into Melbourne for a day out. They also liked to go for walks together in the evenings when they came home from work;[66]
[66]Ex P1, p47, paragraph [7]
(d) around the house, they both used to do the domestic chores together, including the washing, vacuuming and mopping the floor, keeping the house tidy and cooking the meals. Both of them would share the tasks equally;[67]
[67]Ex P1, p47, paragraph [8]
(e) things have completely changed in their household and in their relationship since the plaintiff’s workplace injury. The domestic chores are now almost entirely his responsibility. The plaintiff still tries to help with cooking, but she is limited in what she can do. Indian cooking involves using lots of different utensils and different pans, so with more complex dishes he is the one who has to prepare and cook them. The plaintiff can put plates and cutlery into the dishwasher, but not larger pots and pans, so he has to load and unload those himself;[68]
[68]Ex P1, p48, paragraph [10]
(f) the plaintiff will put clothes into the washing machine, but asks him to unload them when they are wet or to hang them out onto the rack to dry. The plaintiff needs help with bathing herself because of her back pain. She struggles to bend over and wash certain parts of her body, like below her knees, her ankles, and her feet. She has a chair that she brings into the shower so that she can sit down and wash these areas. Sometimes he also needs to come in and help her wash her legs, ankles, and feet, when she is struggling to do this on her own, even when she is using the chair;[69]
(g) sometimes the plaintiff experiences flares of back pain when her pain is very bad and she is unable to move around freely. When this happens, she looks to her husband as if she is “frozen in place like a statue”. At this time it is hard even to get her to sit or lie down on the bed. When this happens, he tries to massage the tension out of the muscles in her lower back to warm them up and help her to get moving again;[70]
(h) the plaintiff struggles to look after their children on her own. She struggles to lift them up and carry them around, even her son who is still a baby. The plaintiff uses a stick with a handgrip attached so that she can pick items up off the floor without having to bend over. She struggles to sit down and get up off the floor when playing with the children;[71]
(i) he has changed his job because of the plaintiff’s injury. Previously, he worked as a truck driver on a full-time basis. He enjoyed his work and was earning good money. He now works as an Uber driver to give himself the flexibility to be at home to help the plaintiff when her pain is bad;[72]
(j) he has noticed that the plaintiff has trouble being in one position without being able to move, whether she is sitting or standing. After about 10 or 15 minutes in the car, she will start moving around to try to change her position. She prefers to sit in the backseat now because there is more room to stretch and move around. If they are driving long distances, he has to pull into a petrol station or rest-stop often so that she can get out and stretch and walk around before continuing the journey;[73]
(k) the plaintiff moves around a lot during the night. She changes her sleeping position frequently, which disturbs his sleep because he is woken up when she moves in bed;[74]
(l) their social life is very much reduced from what it was before the workplace injury. They do not visit friends or family as often as they used to. He does most of the shopping alone when he finishes work. Very occasionally the plaintiff will come with him. If she does come with him, he will see her take pain medication as soon as they get back home again;[75]
(m) their sex life is not the same as it used to be before the plaintiff’s injury. They have sex very infrequently now because of her back pain;[76]
(n) he has noticed changes in the plaintiff’s moods since her injury. She is very short-tempered now, whereas before the workplace injury she was very easygoing;[77]
(o) every day he sees the plaintiff suffering because of her back injury. They are both young, and should be enjoying the best years of their lives together, but instead almost every aspect of their relationship has been impacted by the workplace injury.[78]
[69]Ex P1, p48, paragraphs [11]-[12]
[70]Ex P1, p48, paragraph [13]
[71]Ex P1, p48, paragraph [14]
[72]Ex P1, p49, paragraphs [15]-[16]
[73]Ex P1, p49, paragraph [18]
[74]Ex P1, p49, paragraph [19]
[75]Ex P1, pp49-50, paragraph [20]
[76]Ex P1, p50, paragraph [21]
[77]Ex P1, p50, paragraph [22]
[78]Ex P1, p50, paragraph [23]
The medical evidence
25There were numerous medical reports contained in the tendered material. Both sides provided reports from medico-legal experts. A precis of the medical materials is set out below:
The Plaintiff’s medical evidence
Dr Masoud Hakimzadeh
26The plaintiff relied upon two reports from her general practitioner, Dr Masoud Hakimzadeh, the first dated 8 February 2022 and the second dated 25 July 2023. In his most recent report, Dr Hakimzadeh confirmed the existence of a “significant disc herniation [posteriorly] at L3/L4 to L5/S1 levels”. It was noted that there was compression of the right L5 nerve root and left S1 nerve root. The plaintiff had been referred to Dr Helen Maroulis, neurosurgeon, for further assessment and management. A lumbar MRI performed on 1 September 2021 had confirmed the existence of “disc bulge and herniations at L3/L4 to L5/S1 levels”, with impingement of the L5 nerve roots and also the L4 nerve root. The plaintiff was referred to see Dr Symon McCallum, pain specialist, to complete a pain management program in January 2022. It was also noted that the plaintiff was continuing to suffer from lower back pain and reduced range of movement of her back. In Dr Hakimzadeh’s opinion, the plaintiff’s back injury was work-related. He noted that the plaintiff had had “no back injury prior to her work-related injury”.[79]
[79]Ex P1, pp67-68
Dr Helen Maroulis
27The plaintiff relied upon seven letters from Dr Helen Maroulis to Dr Hakimzadeh, dated between 14 November 2019 and 23 July 2021. In the first letter, dated 14 November 2019, Dr Maroulis noted that the most recent MRI showed that the plaintiff was suffering from disc prolapses at L3/4, L4/5 and L5/S1. She noted that the L4/5 disc prolapse is the largest and was causing the plaintiff some “lateral recess stenosis and is probably the symptomatic level ...”[80] In a letter dated 24 November 2020, Dr Maroulis observed, “[t]here does seem to be some compression of the traversing L4 nerve roots in the lateral recess at L3-4 and also of the traversing L5 nerve roots at L4-5 and thus it is understandable that she is experiencing intermittent sciatica”.[81]
[80]Ex P1, p54
[81] Ex p1, p59
28In the most recent letter, dated 23 July 2021, Dr Maroulis noted that at that time the plaintiff had “ongoing lower back pain and intermittent right leg pain that radiates down to the right calf ...” Dr Maroulis thought it was “a little unusual for [the plaintiff] to have continued pain to this degree.” On this basis she wished to conduct a repeat MRI of the lumbosacral spine. She noted that the plaintiff had wished to avoid surgery in the past, and on that basis said “We will wait for the repeat MRI to advise further.”[82]
[82]Ex P1, p61
Dr Symon McCallum
29The plaintiff relied upon a report provided by Dr Symon McCallum, pain physician and specialist anaesthetist, dated 4 September 2020. In that report, Dr McCallum observed that an MRI performed on the plaintiff showed “disc bulge at L3/4 and showing left L4 nerve compression. At L4/5 there is a disc bulge impinging the L5 nerve root.” Dr McCallum thought that the plaintiff was suffering from “lower back pain and right-sided leg pain which are ... radicular in origin.”[83]
[83]Ex P1, p64
Dr Hazem Akil
30The plaintiff relied upon three reports from Dr Hazem Akil, neurosurgeon, dated 10 March 2020, 8 February 2022, and 24 July 2023. In the most recent report, Dr Akil diagnosed the plaintiff as suffering from “aggravation of lumbar spondylosis with a right L5 radiculopathy and pain.” He noted that he had offered the plaintiff a right L4/5 microdiscectomy surgical procedure but that she was apprehensive of the idea of having spinal surgery. He thought that the prognosis for her condition was poor, given that she was not open to having surgical treatment. He thought that there was a “substantial organic basis” for the plaintiff’s condition and the ongoing restrictions and limitations to which she was subject. He said that this finding was “evident in the outcome of the MRI scans and the neurological examination”.[84]
[84]Ex P1, pp72-73
Dr Mohammed Awad
31The plaintiff relied upon one report from Dr Mohammed Awad, neurosurgeon and spinal surgeon, dated 23 February 2023. In that report, Dr Awad noted that the plaintiff’s pain in her back and right leg were “in an L5 distribution” and were still persisting. He said that he had seen an MRI scan for the plaintiff performed in September 2021 which showed a “3‑level disc prolapse at L3/4, L4/5 and L5/S1”. He noted that the problem from which the plaintiff was suffering was “the L4/5 disc prolapse causing compression on the descending L5 nerve root.” He noted that she did not at that stage wish to have any treatment because of her pregnancy, which was then 29 weeks advanced. He advised her in those circumstances “just to continue to manage things conservatively.” He thought that after the pregnancy, it may be prudent to obtain an up-to-date MRI scan, followed by considering further treatment options, which would be likely to include “an injection in the first instance, followed by a surgery if the injection does not help.”[85]
[85]Ex P1, p78
Dr Clayton Thomas
32The plaintiff relied upon a report from Dr Clayton Thomas, consultant in rehabilitation and pain medicine, dated 10 December 2021. That report was originally prepared for the defendant. In that report, Dr Thomas noted that he had personally reviewed the radiological imaging on the “Capital” website portal. In the most recent MRI, conducted on 1 September 2021, he noted the presence of disc bulge and herniations at L3/L4 to L5/S1 levels. He said there was impingement of the bilateral L5 nerve roots in the lateral recess at L4/L5 and the left L4 nerve root in the lateral recess at L3/L4. He noted that it was possible that there was mild impingement of the right L4 nerve root as well. He said the plaintiff was at that stage about to commence a pain management program. He noted the history which indicated that the plaintiff had been previously fit and well. He thought that the plaintiff was apprehensive and that she “appeared overwhelmed.” He noted that she was tender at the L5 level of her spine. He noted that her lumbosacral movements were “significantly limited”. He noted that her right calf was 3 centimetres smaller than the left calf. He concluded that the plaintiff had “a major spinal problem relating to her lumbar spine.” He said that the plaintiff was suffering from “multilevel degenerative disc disease lumbar spine and right L5 radiculopathy.” He thought that the plaintiff’s current condition “stems from her employment.”[86]
[86]Ex P1, pp169-173
Mr Roy Carey
33The plaintiff relied on a report from Mr Roy Carey, consultant orthopaedic spine surgeon, dated 1 February 2022. This report was also originally provided to the defendant. In that report, Mr Carey noted that the plaintiff was suffering from “classical sciatica down the back of the right leg to the ankle but not below.” He said that she reported that her sleep was disturbed nightly by pain, and that she wakes stiff and sore in the mornings. Mr Carey examined the plaintiff, who he described as “a pleasant and straightforward witness to her problem.” He noted that she had “obvious wasting of the right calf.” He also noted that she would “not move the spine in the standing position because of anticipated and actual pain.” He observed that “Flickering paravertebral spasm was seen.” He concluded that the plaintiff’s current situation was “produced by the subject injury”. He said that her injury at work “continues to materially contribute to her current situation.” He said that she has “constant symptoms in her low back and right lower limb as described.” He said that she was suffering from “ongoing right sciatica and signs of right radiculopathy, due to right L4/5 lumbar disc herniation.” He felt that the prognosis was for “continued discomfort into the foreseeable future.” He thought that the plaintiff’s presentation was “consistent with the workplace injury as described and subsequent symptomatic treatment.” He said that the plaintiff seemed to be “a pleasant and genuine witness to her complaints with no evidence of embellishment.”[87]
[87]Ex P1, pp174-178
Professor Paul D’Urso
34The plaintiff relied upon three medico-legal reports provided by Professor Paul D’Urso, consultant neurosurgeon: the first dated 13 July 2022, the second dated 9 June 2023, and the third dated 14 July 2023. In the first report, Professor D’Urso diagnosed the plaintiff as being “symptomatic from L3-4, L4-5 and L5‑S1 intervertebral disc prolapses with calcification, particularly at the L4-5 level where there is right L5 nerve root impingement.” He said that he would be somewhat guarded regarding the prognosis of the condition, given that there were “significant multilevel disc prolapses present.” He thought that the plaintiff was quite significantly disabled and incapacitated. He thought that her pain presentation was now chronic. He suspected that the plaintiff would have “persisting symptoms and disability into the future”. He thought that the plaintiff would be at risk of degenerative progression and worsening neurological symptoms in the future “which can be difficult to determine and predict.”[88]
[88]Ex P1, p121
35He said that on the balance of probabilities, physical activity in the plaintiff’s workplace had materially contributed to an aggravation of the condition from which she was suffering “with precipitating symptoms resulting in subsequent disability and incapacity.”[89]
[89]Ex P1, p122
36In the final report which he provided, Professor D’Urso was asked specifically whether or not there was a substantial organic basis for the plaintiff’s current presentation. To this question, he replied “[the plaintiff] does indeed have significant multilevel degenerative calcified lumbar intervertebral discs at L3-4, L4‑5 and at L5-S1 causing nerve root impingement, particularly affecting the right L5 nerve root. [The plaintiff] has a substantial organic basis to her current presentation, symptoms, restrictions and limitations attributable to the structural abnormalities in her lumbar spine.”[90]
[90]Ex P1, p129
Dr Joseph Slesenger
37The plaintiff relied upon four reports from Dr Joseph Slesenger, specialist occupational physician: the first dated 27 April 2022, the second dated 2 June 2023, the third dated 28 June 2023, and the fourth dated 21 July 2023. In each of these reports, Dr Slesenger noted that the plaintiff had sustained a soft tissue injury to her lumbar spine with aggravation of degenerative disc disease. He noted that she was suffering from “Chronic lower back pain with right leg radiating features, but no confirmed evidence of radiculopathy.” Despite being in possession of reports from Dr Maroulis, Dr Akil, Professor D’Urso, Dr Thomas, and Mr Carey, Dr Slesenger did not set out the reasons why he had reached this particular conclusion. He also thought that the plaintiff was suffering from some psychological impairment, although he noted that this was outside his area of expertise. He expressed the opinion that there was “a functional element to her presentation.” In support of this, he noted some “non-organic features on evaluation”.[91]
[91]Ex P1, p97
38In his most recent report, dated 21 July 2023, Dr Slesenger stated that he remains “of the opinion that there is at least in part an organic basis to [the plaintiff’s] impairment and disability….” However he concluded, “…Taking the evidence as a whole, including the history, the examination, the documentation; in particular, the imaging findings, I remain of the opinion that the organic component is a substantial contributing factor to her overall impairment and disability.”[92]
The Defendant’s medical evidence
[92]Ex P1, p116
Dr David Ho
39The defendant relied upon a report from Dr David Ho, occupational health consultant, dated 11 December 2019. Dr Ho noted the existence of an MRI conducted of the lumbar spine dated 1 November 2019, in which the plaintiff was noted to be suffering from “lumbar spondylosis with moderate disc disease at L3/4, L4/5 and L5/S1 level. Focal disc extrusion[s] are noted at all of these 3 levels. There is possibly impingement of the right traversing L5 nerve root and the lateral recess at L4/5.” Dr Ho noted that in his opinion “Waddell’s signs were positive in simulated rotation from just holding her arms to her side without any rotation.” He did not explain what Waddell’s signs were, what their significance is, or on what basis he assessed these signs to be present during examination. He noted that the plaintiff was very apprehensive during examination and “anticipated pain with her neck movements” and movements in her lower back. He concluded that the plaintiff “currently has a symptomatic intervertebral disc strain or injury in her lower back which is still related to the incident that occurred at work on 23 August 2019.”[93]
[93]Ex D1, pp19-22
Mr Kevin Siu
40The defendant relied upon two medico-legal reports from Mr Kevin Siu, neurosurgeon. The first is dated 21 September 2022, and the second, 29 May 2023. In the most recent report, Mr Siu expressed the opinion that “in 2019 [the plaintiff] suffered an exacerbation of pre-existing lumbar spondylosis. It has now morphed into a chronic pain syndrome with significant functional manifestation.” He observed that it was impossible to say whether or not the plaintiff had “any physical incapacity.” He noted that he did not recall seeing any independent psychiatric report.[94]
[94]Ex D1, p32
41I note that in his first report, dated 21 September 2022, Mr Siu diagnosed the plaintiff as suffering from “exacerbation of pre-existing lumbar spondylosis.” On that occasion, having been specifically asked about whether or not he detected the presence of any functional component to the worker’s physical condition, he noted that in his opinion the plaintiff had “global weakness in the right lower limb that is functional.” In his most recent report, Mr Siu’s opinion as to any functional manifestation in the plaintiff, appears similarly to be confined to the right lower limb symptoms.[95]
[95]Ex D1, p31
Expert evidence in relation to suitable employment
Suitable employment - Nabenet Integrated Workplace Health Services
42As to the issue of the plaintiff’s capacity for suitable employment, the defendant relied upon a report from Nabenet, Integrated Workplace Health Services, dated 7 November 2022. In that report the consultant expressed the opinion that the plaintiff would be suitable for roles in administration, as a security command centre operator, or in a security gatehouse role.
43In relation to the administration role, I note that the report confirms that the role would involve constant sitting and that the work is predominantly performed in a seated position at a desk. Good computer skills are required.
44The report set out that the role of security command centre operator would involve acknowledging and resolving duress alarms in the form of radioing for assistance or contacting control officers located in, eg, the court room in question. The security command centre operator is also required to patrol the internal building during night-shift with a phone diverted to mobile and carried with the operator. It was confirmed that the job involved almost constant sitting throughout the shift, monitoring surveillance and taking phone calls, which could be up to 12 hours per shift, although there was flexibility to stand as required. Potential employees need to have security training and a valid security licence. No information was given about what would be required to obtain such a qualification.
45The report stated that the role of security gatehouse operator required the employee to monitor activities for the use of CCTV and to remain vigilant. Sitting was a constant feature of the job. The operator was also required to provide “constant and clear directions through two-way radio.” A good understanding of IT processes, warehouse and management systems was required. Good communication skills were required.
46The issue of whether or not the plaintiff would be able to attend to any of the roles on a consistent and reliable basis, given her current presentation, was not addressed in the Nabenet report.[96]
[96]Ex D1, pp40-50
Dr Masoud Hakimzadeh
47In his report dated 25 July 2023, Dr Hakimzadeh did not think that the plaintiff was capable of performing her pre-injury duties. He thought that any future work capacity “depends on the treatment that will be provided to her by [a] neurosurgeon and/or pain specialist and the outcome of those treatments.” [97]
[97]Ex P1, pp67-68
Dr Hazem Akil
48In his report dated 24 July 2023, Dr Akil said that he did not believe that the plaintiff could return to her pre-injury employment. As he had not seen her for over a year at the time of writing the report, he did not feel able to comment on what might constitute suitable employment for the plaintiff at this time.[98]
[98]Ex P1, pp72-73
Dr Clayton Thomas
49In a report dated 10 December 2021, Dr Thomas expressed the opinion that the plaintiff could not return to pre-injury hours or duties. He did not think she had any capacity to perform modified or alternative duties or hours. He did not think she had any capacity for suitable employment. He noted that she presented as being “markedly disabled.” He thought that although she would be able to work with an occupational rehabilitation service provider, “at this stage it is unlikely that this would translate to return to work.” He said that the plaintiff presented as having “no current work capacity.” He thought it was likely that this would be “indefinite”, but postulated that at this stage, that opinion was “too early to call.” He thought that the plaintiff’s “medical condition and the sequelae” were the reasons for her current problems. He thought that mental health issues were “probably impacting on her condition.” He did not think she had the capacity for any of the vocational options that were proposed by the defendant. He thought that the plaintiff’s current condition “stems from her employment.”[99]
[99]Ex P1, pp169-173
Dr Joseph Slesenger
50In his most recent report, dated 21 July 2023, Dr Slesenger expressed the opinion that the plaintiff was not able to return to pre-injury duties, nor did he think she was likely to be able to return to work performing suitable employment “on a consistent and reliable basis.” He referred to the roles proposed by the defendant at that time as constituting suitable employment – namely, administrative assistant, data-entry operator, receptionist, order clerk, accounts clerk, administration officer, security command centre and security gatehouse officer. He advised against the plaintiff returning to work in any of these roles.[100]
[100]Ex P1, pp112-113 and 116-118
Professor Paul D’Urso
51In his report dated 13 July 2022, Professor D’Urso said that the plaintiff does not have capacity to return to full-time employment or any type of employment activity beyond the restrictions which he mentioned in the text of his report. He did not think she would have capacity for suitable employment at that time, and was unlikely to regain capacity in the foreseeable future. He thought that her condition was “more likely than not to deteriorate in the long term.” He did not believe that the plaintiff would have any capacity to “work on a consistent and reliable basis having regard to the limitations mentioned in the text of this report.”[101]
[101]Ex P1, p122
Dr Umberto Boffa
52In relation to the plaintiff’s current capacity for employment, the defendant relied upon a report from Dr Umberto Boffa, occupational and environmental physician, dated 1 March 2023. He examined the plaintiff and concluded that she was suffering from “low back pain without mechanical features and overt symptom amplification and no radiculopathy...”. He did not set out the basis of the reasoning which led to this conclusion.[102] I note that this opinion is contrary to the weight of the evidence in relation to the existence of organically based radiculopathy in the plaintiff.
[102]Ex D1, p39
53Dr Boffa considered that the plaintiff was fit for a graduated return to work in sedentary, office-based, non‑crowd control or patrol security, concierge control room and gatehouse roles. He said that these roles would allow the plaintiff to “move around and avoid repetitive bending, twisting, pushing pulling lifting and carrying more than 5kg and are entirely suitable for a graduated return to work for her following relevant re‑training”. He envisaged that the plaintiff would commence with 4‑hour shifts on three non-contiguous days per week and graduate to pre-injury hours over six weeks. He did not address the issue of whether or not the plaintiff would be able to attend at a workplace on a consistent and reliable basis.[103]
[103]Ex D1, p39
Dr David Ho
54In his report dated 11 December 2019, Dr Ho expressed the view that the plaintiff was not then fit to resume her pre-injury duties or hours and that she had a “very limited work capacity for suitably selected modified pre injury or alternative duties”, with particular restrictions to avoid heavy lifting in excess of 5 kilograms, repeated strenuous bending and twisting of her lower back, heavy pulling and pushing, and involving a regular change of posture. He thought that at that stage, she would “only be able to work … reduced hours depending on the availability of suitable duties.”[104]
[104]Ex D1, pp19-22
Mr Kevin Siu
55In his report dated 29 May 2023, Mr Siu confirmed his opinion that the plaintiff has “no work capacity” adding, “…and to that end the vocational assessment serves no real purpose.” He thought that the lack of work capacity was due to the “significant functional manifestation of her condition.”[105]
[105]Ex D1, p32
The issues
The Plaintiff’s credit
56The plaintiff was challenged in relation to many aspects of her evidence. These included her current capacity for work, her decision to have two pregnancies, despite the advice given to her by Dr Maroulis, the unlikelihood of her returning to work even in the absence of injury, given her need to care for two small children, her husband’s work capacity and the purchase by her and her husband of an investment property.
57In relation to each of these matters, the plaintiff gave clear and consistent evidence. She provided cogent explanations in relation to each matter. For instance, she disputed that she was advised never to have a baby because of her back injury, but said that she was told by Dr Maroulis to lose weight beforehand, in order to accommodate the weight that would be gained during the pregnancy. She did this with the assistance of her GP. Similarly, when it was put to her that she had never had any intention of going back to work after the birth of her two children, she denied that this was true and said that if it was not for her back injury, she would certainly have returned to work. There was nothing in the evidence before the Court which cast doubt on this account of events. When challenged about her husband’s income and also matters to do with an investment property which the couple had purchased, the plaintiff said that these were matters which her husband could answer. Although he was present at court, Mr Singh was not required to attend for cross examination.
58Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an honest witness who appeared to be doing her best to provide accurate responses to the questions asked of her.
59Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating practitioners, consulted with the medico-legal assessors and provided evidence to this court. Her account of events and the consequences from which she presently suffers, is corroborated by the evidence of her husband. In addition, the histories recorded in the medical reports of the treating medical practitioners and the medico-legal experts for the plaintiff, support the account of these matters given by the plaintiff in evidence.
60After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the evidence of her husband and the medical reports tendered on her behalf, I consider that she was a credible witness in the sense of being a truthful person.
Stoic Plaintiff
61Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff has been somewhat stoic in relation to her condition and has taken some steps to try to continue living her life as best she can.
62I find that despite the consequences of her injuries, which she has suffered daily since the incident, she attempted on at least one occasion to get back into some form of employment, by trying to start a home based beauty business. The plaintiff said in her evidence, and I find, that performing the tasks associated with this business, ultimately were too difficult for her and increased her pain. Similarly, the evidence demonstrates and I find that the plaintiff carefully followed the advice she was given about how to manage her back condition in the context of wanting to have children, taking steps as advised before the pregnancy to lose weight, in order to accommodate the weight gain which would inevitably be associated with each pregnancy.
Compensable injury – is there a substantial organic basis for the plaintiff’s current presentation?
63The details and occurrence of the injury were not in dispute. The only issue for determination by this Court, was whether there is a substantial organic basis for the injury and its present consequences.
64To this end, counsel for the defendant submitted that there is a psychological component to the plaintiff’s current presentation, which component the plaintiff had failed to disentangle, to reveal the true extent of her current physical injury (if any). It was submitted that the plaintiff’s presentation ought be characterised as “extreme pain behaviour” which is “non-organic.”[106] It was submitted that what leads to the plaintiff’s perception of her pain and ultimately to her incapacity for work, “is the overlaying of the mental condition.”[107] It was submitted that the Court ought be satisfied of this conclusion “on the basis of the examination findings” which were referred to by counsel for the defendant in his closing address and characterised in submissions and in one report relied upon by the defendant, as “Waddell’s signs”.[108]
[106] T61, L8-9
[107] T62, L7-8
[108] TT69-72ff
65As to this, the defendant placed reliance on parts of the opinions of Mr Siu, Dr Boffa, Dr Ho, Dr Slesenger, Professor D’Urso, Dr Akil, Mr Carey and Dr Thomas. The submission relied upon refences in those reports matters such as “pain behaviour”, “global weakness”, “limited straight leg raising”, “Waddell’s signs” (in the form of “positive axial loading, positive truncal loading…global weakness in [the] leg, not isolated in a dermatome…”), the presence of an “antalgic gait” and the opinion expressed by Dr Thomas that “mental health issues are probably impacting” the plaintiff’s condition.
66As I noted above, while detailed submissions were made by counsel about the issue, ultimately there was no evidence before the Court as to what constitutes “Waddell’s signs” or as to the significance of any of what were asserted to be components of those signs, such as “global weakness”. Similarly, there was no evidence about what, if anything, ought be made by the Court of such observations.
67In response to these submissions, counsel for the plaintiff placed reliance on the following evidence, which in her submission categorically demonstrated the organic nature of the plaintiff’s injuries and their current consequences for her, viz:
(a) the various radiological reports which all demonstrate an organic back injury in the form of three disc prolapses. The reports each include reference to nerve root impingement, which is the cause amongst other things, of the radiculopathy suffered by the plaintiff;[109]
(b) the report of Mr Thomas, originally provided to the defendant, which described the nerve root impingement seen on the radiological scans as “significant”. On examination, he noted that the plaintiff was “tender at L5” and that she had wasting of her right calf, which was “3cm smaller than the left calf”. He diagnosed the plaintiff as suffering from “multilevel degenerative disc disease [in the] lumbar spine and right L5 radiculopathy.” In his opinion, it was the plaintiff’s “medical condition and its sequelae” which were causing “her current problem”. He went on to describe the plaintiff as “significantly disabled” and suffering from a “major spinal problem relating to the lumbar spine”. These observations take on an increased importance coming from Dr Thomas, since his specialty of pain management is particularly relevant in this type of case, and he personally reviewed the radiological scans prior to reaching his conclusions about what they showed;[110]
(c) the report of the plaintiff’s first treating neurosurgeon, Dr Maroulis, which linked the findings on the radiology to the symptoms which the plaintiff reported, noting that the L4/5 disc prolapse was probably the “symptomatic level”.[111] In a later report, Dr Maroulis noted the compression of the traversing L4 and L5 nerve roots, commenting “…thus it is understandable that she is experiencing intermittent sciatica”;[112]
(d) the report of Dr McCallum, pain specialist, which notes the presence of nerve root compression and in which he comments that the plaintiff is suffering from lower back pain and right sided leg pain which “…are … radicular in origin”;[113]
(e) the opinion of the second neurosurgeon, Dr Akil, who described his clinical findings that the plaintiff had “reduced sensation in the right L5 dermatome” and weakness of the right EHL[114] muscle, compared to the left. He also described other clinical findings which were clearly organic in nature. In addition, Dr Akil commented on the radiological findings of disc prolapses at three levels with demonstrated nerve root compression, together with what he described, having examined the plaintiff, as “clinical manifestation of a right L5 radicular pain and radiculopathy”;[115]
(f) the opinion of the third neurosurgeon, Dr Awad, who, noting the three-level disc prolapse, commented that in his view, the plaintiff’s problem is the L4-5 disc prolapse, causing compression on the descending L5 nerve root;[116]
(g) the opinion of Professor D’Urso, who, while noting the presence of “significant pain behaviour”,[117] nevertheless said that he would be guarded about the plaintiff’s prognosis, given the presence of “significant multilevel disc prolapses” and that the plaintiff would be at risk of “degenerative progression and worsening neurological symptoms” in the future. He expressed the opinion that “On the balance of probabilities, physical activity in the workplace has materially contributed to an aggravation of the condition with precipitating symptoms resulting in subsequent disability and incapacity.”[118] He said that he would place “permanent restrictions on [the plaintiff’s] physical capacity as a consequence of her lumbar spinal condition.”[119] As noted above, in response to direct questioning, Professor D’Urso expressed the opinion that there is a “substantial organic basis” to the plaintiff’s “current presentation, symptoms, restrictions and limitations attributable to the structural abnormalities in her lumbar spine”;[120] and
(h) the report of Dr Carey, in which he noted that on examination, “flickering paravertebral spasm was seen” and that “significant muscle wasting” was observed in the plaintiff’s right calf.[121] He noted that the plaintiff described “classical sciatica down the back of the right leg to the ankle” and that she is “disturbed nightly by pain.”[122] He expressed the opinion that the plaintiff “has ongoing right sciatica with signs of right radiculopathy, due to right L4/5 lumbar disc herniation.” He thought that the plaintiff’s presentation “is consistent with the workplace injury as described…”[123]
[109] Ex P1, pp151, 152, 154 and 168
[110] Ex P1, p 171-172
[111] Ex P1, p54
[112] Ex P1, p59
[113] Ex P1, p64
[114] a muscle in the leg
[115] Ex P1, p69
[116] Ex P1, p78
[117] Ex P1, p126
[118] Ex P1, p126
[119] Ex P1, p127
[120] Ex P1, p129
[121] Ex P1, p176
[122] Ex P1, p175
[123] Ex P1, p177
68Counsel for the plaintiff submitted that every one of the reports relied upon, set out a picture of “multi-level disc disease,” with an “L4/5 herniation/bulge/prolapse” causing the observed radiculopathy.[124]
[124] T93, L13-18
69Having reviewed the totality of the evidence before the Court, the weight of that evidence satisfies me that there is a substantial organic basis for the plaintiff’s current presentation. In relation to this matter, I prefer the submissions made by counsel for the plaintiff.
70I reject the submission made by counsel for the defendant, that I should prefer the opinions of Dr Siu, Dr Ho and Dr Boffa and conclude that the plaintiff’s current presentation ought be characterised as “extreme pain behaviour” which is “non-organic” in origin. The overwhelming weight of evidence is to the contrary conclusion. I accept that evidence.
71Having considered all of the medical evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that, as a result of the incident, the plaintiff suffered an organic injury to her spine, in the form of an aggravation of pre-existing lumber spondylosis with a right L5 radiculopathy and pain.[125]
[125] Ex P1, p73
Is the compensable injury permanent for the purposes of the Act?
72Having considered the relevant reports and, in particular, the reports from Dr Hakimzadeh,[126] Dr Slesenger,[127] Dr Akil[128] and Professor D’Urso,[129] I find that the plaintiff is likely to suffer from the consequences of the injury that she sustained in the incident, for the foreseeable future. Given this, I find that this injury is permanent for the purposes of the Act.
[126] Ex P1, pp67-68
[127] Ex P1, p112
[128] Ex P1, p73
[129] Ex P1, p126 and 128
Conclusion as to economic loss
73The weight of the evidence in relation to this point which is set out in detail above, satisfies me that the plaintiff has no capacity to engage in her pre-injury employment.
74As to the plaintiff’s post-injury work capacity, I note that in Richter v Driscoll,[130] the Court of Appeal held that in assessing whether a plaintiff is fit to engage in “suitable employment,” the Court is –
“… required to consider whether the entirety of the [plaintiff’s] relevant personal circumstances—that is, her injury-caused incapacity and other relevant personal circumstances … meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell. The entirety of the worker’s relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.”
[130][2016] VSCA 142 at paragraph [106] (citing Cardiff Corporation v Hall [1911] 1 KB 1009, at 1020 and 1027)
75The totality of the plaintiff’s medical evidence is to the effect that the plaintiff has no capacity for suitable employment. When asked whether the plaintiff had a realistic capacity for work on a consistent, reliable and permanent basis, Professor D’Urso said that he did not believe so, having regard to the plaintiff’s present limitations.[131] Dr Slesenger was also of the opinion that the plaintiff would have difficulty attending work in the roles proposed by the defendant, on a consistent and reliable basis.[132] As referred to above Mr Kevin Siu was of the opinion that the plaintiff had no work capacity at all.[133]
[131] Ex P1, p127
[132] Ex P1, p116
[133] Ex D1, p32
76The defendant submitted that the court ought to find that the plaintiff does have the capacity for suitable employment, relying on the Nabenet report, together with the reports of Dr Boffa and Dr Ho.
77I have already set out the thrust of the evidence contained in each of these documents. I have noted that neither Dr Boffa nor the Nabenet report addressed the personal circumstances of the plaintiff, which would impact on her ability to be employed in these roles on a consistent and reliable basis. Those personal circumstances include the plaintiff’s experience of constant and variable pain, her resulting difficulties with concentration, memory and focus and the debilitating effects of the pain flare-ups from which she regularly suffers. To the extent that Dr Ho opined that the plaintiff may have some limited capacity to return to work in the future, that opinion, given in 2019, was predicated on the plaintiff’s condition improving with successful treatment. It has not done so.
78In addition to these matters, I note that each of the roles proposed by the defendant as constituting suitable employment, in fact involve constant sitting and/or standing or walking, the need to concentrate and communicate clearly and effectively, and the need for up to date IT skills or other retraining. As set out above, the weight of the evidence clearly indicates and I find, that roles with requirements such as these, are unsuitable for the plaintiff. This is particularly so when one takes into account the evidence of her experience of pain, her consequential inability to concentrate and focus, her difficulties with memory and particularly, the unpredictability of her frequent and debilitating pain flare-ups.
79Given this, I prefer the opinions of the plaintiff’s experts as to these matters, since their opinions were expressed having taken into account all of the issues which I must consider.
80As a result, I am satisfied that the consequences of the injury to the function of the plaintiff’s spine have resulted in the plaintiff being unfit for both her pre-injury duties and for any suitable employment. Further, I find that even if the plaintiff has a theoretical physical capacity for some employment, by reason of her personal circumstances, the plaintiff is not presently “merchantable” as a prospective employee. This is due to her experience of pain, the consequential difficulties with her concentration, memory and focus and the unpredictability of the frequent and debilitating pain flare-ups which she experiences and therefore, her inability to attend at work in a reliable and consistent manner. I have already found that the injuries from which the plaintiff suffers (and therefore the ongoing effect of those injuries), are permanent for the purposes of the Act.
81I am also required to consider issues of retraining and rehabilitation pursuant to s325(2)(g) of the Act.
82In light of my findings as to the plaintiff’s physical impairment and her present incapacity for employment due to her experience of pain, the consequential difficulties with her concentration, memory and focus and her inability to attend at work in a reliable and consistent manner, I am satisfied that there is no rehabilitation or retraining that the plaintiff would be able to undertake, which would alter the fact that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g) of the Act.
83In light of the foregoing, I am satisfied that the consequences of the injury to the function of the plaintiff’s spine, suffered as a result of the incident, are “serious” for the purposes of the Act.
Conclusion
84Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity in respect of a serious injury to the function of her spine, suffered in the incident on 27 August 2019.
85I will hear the parties on the question of costs.
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