Kear v Bushland Flora Vic Pty Ltd
[2013] VCC 1184
•12 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00671
| JOSEPHINE KEAR | Plaintiff |
| v | |
| BUSHLAND FLORA VIC PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2013 | |
DATE OF JUDGMENT: | 12 September 2013 | |
CASE MAY BE CITED AS: | Kear v Bushland Flora Vic Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1184 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower spine – disentangling between physical injury and Chronic Pain Syndrome – whether consequences of physical injury meet the relevant statutory test
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Titshall QC with Mr G Coldwell | Hounslow & Associates |
| For the Defendant | Ms K Galpin | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to her lower spine in the course of her employment duties with the defendant in April 2009. She continued working for a period on light duties but ceased work because of her injury in June 2009. According to the opinion of some medical practitioners, she has developed a Chronic Pain Syndrome in addition to the physical injury, and claims a range of employment, domestic, social and recreational activities have been significantly affected. The real issue to be determined in this application is the extent to which the consequences the plaintiff claims have their genesis in an organic injury, or whether they result from the Chronic Pain Disorder.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment over the period of March and April 2009. The body function said to be lost or impaired is the lumbar spine.
3 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, three affidavits of the plaintiff, one of her sister, Ms Maria Cooper, various medical and radiological reports and vocational assessments were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to be of most relevance and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff was born in 1952 and is now sixty-one years of age. She completed schooling to Year 10 and left when she was sixteen years of age. Initially she obtained employment as a factory worker and at age twenty undertook a business course. She learned about basic administrative and clerical work including typing, filing and reception duties. She worked for approximately twelve years on an intermittent basis, performing office and reception duties. She took time off after the birth of her three children in the 1980s. Between 1984 and 2002, she assisted her husband by carrying out administrative duties in his earthmoving business.
6 In 1996, she developed anxiety and depression. She was treated by a counsellor with cognitive behavioural therapy, and saw a psychiatrist for approximately twelve months. She was prescribed an anti-depressant, Aropax, which she continued to take through to the workplace accident.
7 At the time of the injury, she was earning $34,000 gross per annum. She was a keen gardener and performed work in her own garden and enjoyed various pastimes including reading. She was able to undertake all of her usual domestic duties. She enjoyed a good relationship with her husband and family and took pleasure in the company of her grandchildren.
8 She was otherwise well, and had no particular pain nor restriction in the lumbar spine.
The injury and its consequences
9 The plaintiff was employed as a nursery assistant and claims that her work was physically demanding and included manual handling and repetitive bending. On 14 or 15 April 2009, the plaintiff’s supervisor was on leave and she was required to perform additional duties. She experienced the sharp onset of pain in her lower back in the course of those duties and reported the matter to her supervisor.
10 On 21 April 2009, she went to see a physiotherapist, Ms Megan Roy. To Ms Roy, she reported lumbar pain with referred pain into her right and left buttock and thighs. Ms Roy noted muscular spasm and thought the plaintiff had suffered a disc injury between L3 to L5.[1] With physiotherapy, there was some improvement in her pain and range of movement. She had been off work and attempted a return to work on 27 April 2009 and performed light duties for several weeks.
[1]Plaintiff’s Court Book (“PCB”) 57
11 The pain continued, and on 18 June 2009, she saw her general practitioner, Dr William Verhoef. She complained to him of continued lower back pain, and he prescribed an anti-inflammatory medication, and Panadeine for pain. He arranged an MRI scan of her spine,[2] which concluded:
“Mild disc space degenerative changes are present at L3-4 and L4-5. Mild facet joint arthropathy is seen at the lowest two lumbar levels. … There is minor disc bulging and osteophytic lipping of the vertebral endplates causing moderate narrowing of the left L3 and bilateral L4 neural foramina, however there is no convincing evidence of focal lumbosacral nerve root compression. There is no central canal stenosis and no other lumbar disc pathology.”
[2]PCB 51. See further MRI scan of 7 February 2011 – PCB 52-3 – which showed no significant change from the previous MRI.
12 Dr Verhoef continued to prescribe pain-relieving medication and referred her for further physiotherapy.
13 The plaintiff’s pain continued, and in September 2009, Dr Verhoef referred her to Mr Myron Rogers, neurosurgeon. She complained to Mr Rogers of increasing lower back pain. He noted depressed ankle reflexes on examination and said that the MRI scan indicated mild degenerative changes at the three lower lumbar discs. He said there was no place for surgery and that she was developing “Chronic Pain Syndrome/behaviour” which would require a rehabilitation program.[3]
[3]PCB 59
14 Further, in September 2009, Dr Verhoef referred the plaintiff to Dr Timothy McCarthy, anaesthetist, for pain management. From that time through to the present, she has remained under Dr McCarthy’s care, and he has undertaken a wide range of pain-relieving measures, including:
· The prescription of Pregabalan to assist with sleep
· Lumbar dorsal ramus blocks, designed to exclude facet joints as the source of pain
· Radiofrequency denervation of the lumbar facet joints
· The prescription of Celebrex and Digesic to control pain
· Triggerpoint injections over the lower spine, in particular the sacroiliac joint
· In 2010, a Ketamine infusion, which required her to spend a week in hospital
· The injection of local anaesthesia into the lumbar spine
· A further Ketamine infusion in February 2012.
15 These various procedures at best provided only short-term benefit, and none provided any long-lasting pain relief.
16 Dr McCarthy referred the plaintiff for treatment to Dr Clayton Thomas, rehabilitation and pain medicine specialist, in June 2010. She complained of a level of pain in the lower spine, with referred pain into her buttocks and down both legs. The plaintiff said the pain was 10 out of 10. At the time, she was taking six to eight Panadeine Forte per day, which gave no pain relief. She complained of pain in her feet, like sunburn. Spinal movements were reduced by 40 per cent. Neurological examination was unremarkable. According to Dr Thomas, the plaintiff had a complex pain problem with neuropathic features. He trialled Lyrica, but the plaintiff suffered side effects. He recommended she attend a rehabilitation program at the Victorian Rehabilitation Centre and suggested the Ketamine infusions, subsequently undertaken by Dr McCarthy.
17 The plaintiff undertook the rehabilitation program, which she found unhelpful. She said her back pain became exacerbated in the course of the program, and that she was told by a psychologist that she, and others in the group, suffered pain which was “all in her head”.
18 The plaintiff has tried a range of pain-relieving and anti-inflammatory medication, including OxyContin, Panadeine Forte, Lyrica, Tramadol, Endone and Endep. At the present time, she takes six to eight Panadeine Forte per day, Paxam for leg pain and Melatonin. She was unable to continue on Endone because of the side effects. She has tried hydrotherapy and acupuncture, but both caused a flare up of back pain.
19 Dr McCarthy also referred the plaintiff to Dr Courtney, a pain specialist. He provided injections into the base of the plaintiff’s spine, and has been involved in the radiofrequency denervation procedures. She has remained under the treatment of her general practitioner, who prescribes the various medications she takes.
20 In April 2011, Dr Verhoef referred the plaintiff to a psychologist because of increasing depression. Eventually, she came under the care of Dr Shauna McGreevy, psychologist, who diagnosed a recurrence of the plaintiff’s previous Major Depressive Disorder, together with a Pain Disorder and Adjustment Disorder related to her workplace injury. She provided psychological counselling, which has continued. The plaintiff said she found the counselling helpful.
21 At the present time, the plaintiff complains of ongoing disabling pain in her lower spine, referred through her buttocks and to the back and front of both legs, down to the feet. She says the pain is severe and she has exacerbations as a result of physical activity. She has to be careful what she does to avoid these exacerbations. She has a TENS machine, which provides short-term relief.
22 She has not worked since June 2009, and has not applied for any employment. She said she would be incapable of even part-time light duties because of the need to alternate between standing and sitting and to lie down regularly to rest. She now cannot work in her garden and is restricted in the household tasks that she is able to perform. She still does some tasks, but the heavier duties, including changing the sheets, sweeping, mopping and cleaning the bathroom are undertaken by her husband. Her personal relationship with her husband is affected. She is not able to care for her grandchildren in the way that she previously did. She drives her car, but finds it difficult driving for longer periods. She says her social life is much reduced. She says that her sleep has been affected, and she rarely gets more than 2 to 3 hours’ sleep each night.
Medical opinions
23 Despite the extensive range of treatment provided by Dr McCarthy, his diagnosis is one of lower back pain, with leg pain, both of uncertain origin.[4] He thought there was a facet joint component to her pain, but noted that radiofrequency denervation treatment, which was designed to treat the facet joints, did not assist. He said the plaintiff’s response to treatment had been poor and it was difficult to say with certainty what soft tissues in the plaintiff’s spine were affected, or to explain why her pain was so prolonged.
[4]PCB 70
24 Dr Clayton Thomas said that the plaintiff’s workplace injury was a significant contributing factor to her presentation and that at the time he saw her in 2010, she was totally incapacitated. He was unable to say whether she was suitable for employment as a call centre operator, a general clerk, a receptionist, a retail sales assistant or a florist.
25 According to the plaintiff’s general practitioner, the plaintiff continued to be totally incapacitated for any work by reason of her lower back injury.[5] Further, she was unable to do her housework or tolerate driving for more than short distances. He noted that she had developed secondary Depression.[6]
[5]PCB 96
[6]PCB 90
26 The plaintiff was examined by Mr Daryl Nye, neurosurgeon, in May 2011 for the WorkCover insurer. He received a complaint of pain in the lower back extending into the buttocks and the right groin. He said the description of pain in the legs was vague and the plaintiff complained that she had fallen on occasions when her legs gave way. He noted pain behaviour in the course of examination. He said there was no neurological deficit. He concluded that the plaintiff had degenerative changes in the lower spine but no disc prolapse, nerve root compromise nor radiculopathy. He thought the plaintiff had suffered an aggravation of that degenerative change in the workplace incident, and said:
“… I suspect an associated significant psychological aspect to presentation and I noted that a recent examination by a psychiatrist had been undergone. I suspect development of Chronic Pain Syndrome.”[7]
[7]PCB 135
27 He said the prognosis was unfavourable because of the entrenched suspected Chronic Pain Syndrome. He said the condition would affect her activities of daily living, with limitations in sitting, and sleep disturbances. He said that aggravation of the lumbar degenerative disease was consistent with the described workplace incident.
28 The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, in July 2012.[8] To Mr Simm, the plaintiff complained of constant and severe lumbar back pain with intermittent leg pain, in particular to the right leg, which could be quite severe. On examination, there was marked restriction of thoracolumbar movement in all directions, although neurological examination was normal. Mr Simms’ opinion was that the plaintiff had chronic and severe lumbar back pain with referred pain into the lower limbs. This, he said, was initiated by the demanding work duties in April 2009. He noted the MRI scan showed degeneration at L3-4 and L4-5 with degenerative facet arthropathy at L4-5 and L5-S1. He said:
“The initial symptoms probably represented initiation and exacerbation of pain from underlying early degenerative pathology. The physical injury has subsequently been associated with a chronic adverse pain response. She has run the clinical course of a chronic spinal pain syndrome, which has not responded favourably to numerous pain management interventions from her treating pain management specialist, Dr McCarthy. …
There was a history of depression and this is a known risk factor for the development of a chronic spinal pain syndrome. She continues to require anti-depressant medication. Assessment of her depressive illness would need to be undertaken by a psychiatrist. .. .
She presented as a genuine person with a normal affect. I accept that she experiences chronic pain in association with chronic spinal pain syndrome, and the pain limits her ability to undertake physical activities.”[9]
[8]PCB 139
[9]PCB 143
29 Mr Simm said the plaintiff was permanently incapacitated for her pre-injury employment, or any alternative physically-based employment involving bending, lifting and twisting. He said she probably had a theoretical capacity for part-time office employment but would need the ability to stand and walk around for rest and exercise from time to time. He said her incapacity to return to all but possibly light part-time, non-physical employment was as a result of the physical injury and subsequent chronic spinal pain syndrome.
30 In a further report of 17 January 2013, Mr Simm said the following:
“Your client is incapacitated for work as a result of unresolved symptoms from degenerative lumbar pathology and an associated chronic spinal pain syndrome. The purpose of this supplementary report is to confirm that the physical component of her condition has permanently incapacitated her for pre-injury employment or for alternative physically-based employment that involves bending, lifting and twisting. As noted in my report, she probably has at least a theoretical capacity for light part-time office employment or similar non-physical forms of employment providing she had the ability to stand and walk around for rest and exercise periods after sitting for any length of time. When I interviewed your client I noted that she had not worked in an office environment for a long period of time and she may require further training to return to a non-physical form of employment. Considering her age and the difficulties she would encounter in returning to non-physical work, it is my prediction that she is unlikely to obtain gainful employment in the future.”[10]
[10]PCB 145.2
31 The plaintiff was examined by Dr David Middleton, occupational health and rehabilitation specialist, in November 2012.[11] He received a complaint of pain in the lower lumbar spine with referred pain into the groin and legs similar to the pain described to other practitioners. The plaintiff complained that the pain disturbed her sleep and restricted her in a range of activities. He concluded the plaintiff had suffered a significant aggravation of the previously asymptomatic underlying degenerative lumbar disc and facet joint disease which had not resolved. This resulted in chronic pain and the development of a Chronic Regional Pain Syndrome. This had resulted in a significant restriction in physical and work capacities. He said:
“It is my opinion that addressing purely the physical condition and impairment, taking into consideration Mrs Kear’s lack of transferrable skills in the paid employment area, being in her sixtieth year, having a limited area in which employment can be sought, and importantly the failure of any attempt being made by the insurance agent to upskill Mrs Kear to have any chance of being adequately skilled for work of a non-manual nature … Mrs Kear’s very limited postural endurances and the ease to which her pain levels can be aggravated by lack of or excessive physical activities, it is my opinion that for employment to be suitable, the flexibility related to Mrs Kear’s need to change posture and move about on an as needs basis would be somewhat unique and in my opinion make it highly likely[12] and more likely impossible for her return to gainful employment in the future.”[13]
[11]PCB 164
[12]This should read ‘unlikely’
[13]PCB 183
32 On behalf of the defendant, the plaintiff was examined on a number of occasions by Mr Paul Kierce, orthopaedic surgeon. When he first saw the plaintiff in March 2010, he concluded that the plaintiff had significant lumbar spondylosis which had been aggravated by bending and lifting at work. He said she was permanently unfit for her pre-injury duties and that she would never return to manual work. He said the plaintiff would be fit for work which did not involve bending, lifting of weights of more than 10 kilograms and providing she could sit and stand as required.
33 In a further letter of 24 May 2010,[14] Mr Kierce, somewhat unusually, appeared to change his opinion. Without further examination of the plaintiff, he said:
“It is my opinion that her physical condition is modified by abnormal pain behaviour as was indicated by the effect of axial compression of her spine causing low back pain.”
[14]Defendant’s Court Book (“DCB”) 17
34 In his next report of July 2011, Mr Kierce said that the plaintiff was suffering a degree of degenerative disease in her lumbar spine without evidence of radiculopathy. He said that the lumbar spondylosis was aggravated in the course of her employment. However, he said that she had developed non-organic signs evident on examination which could not be explained on organic grounds. He was unable to explain the plaintiff’s complaint that her right leg gave way. He concluded that the plaintiff was suffering a Pain Disorder which manifested in abnormal psychogenic reaction as a result of physical injury. He said he would have expected any physical injury to have resolved and that the Pain Disorder had overshadowed the physical injury. From a purely physical point of view, he said the plaintiff would be able to work in modified pre-injury duties or alternative lighter duties. From a purely physical point of view, he said she would be able to work as a call centre operator, general clerk, receptionist or retail sales assistant.
35 The plaintiff was examined by Mr Robin Williams, orthopaedic surgeon, in February 2011.[15] He received complaints of severe and disabling pain both to the lower spine, through the buttocks, both legs and to the feet. He said that the pattern and distribution of pain suggested a large non-organic component to her illness. Movement of the lower spine was significantly restricted. He concluded the plaintiff suffered a Chronic Pain Syndrome affecting her back and lower legs which arose out of “strains that occurred to her lower back during the course of her work”.[16] He thought the plaintiff had no current work capacity but that was as a result of her Chronic Pain Syndrome.
[15]DCB 32
[16]DCB 35
36 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in October 2012. Having reviewed the radiology, he said the plaintiff had naturally occurring and aged-related degenerative disc disease in her lumbar spine. He said, in the course of her work activities in 2009, she had aggravated that underlying disc disease. He said that aggravation would have caused the plaintiff “some ongoing intermittent low back pain”.[17] He said:
“Overall the constancy and intensity of her ongoing pain over three years after the aggravating episode are greater than one would expect to see for her condition. She has undergone a myriad of treatments, most of which have not provided any lasting improvement in her symptoms. …
From an orthopaedic viewpoint only, I would expect Mrs Kear to note some ongoing intermittent low back pain and lower limb pain. I would not expect this to be major and I would not expect her orthopaedic condition to deteriorate in time. …
From an orthopaedic viewpoint only, I believe that Mrs Kear would be unable to carry out regular heavy physical work or work that involves a lot of bending and lifting. She has the physical capacity to carry out light physical work and clerical duties.”[18]
[17]DCB 93
[18]DCB 93
37 In a further report of 8 January 2013, he said:
“In my view a Chronic Pain Syndrome involves an organic and psychological reaction in response to injury, illness and/or pain. In the compensable setting it develops mainly in relation to soft tissue musculoskeletal injury. My view is that following organic injury, there is an involuntary psychological response to the situation. This response often relates to the way in which a patient perceives their work situation, reaction of colleagues to injury, reaction of their supervisor to injury etc. … Almost invariably, despondency and then depression develop. I accept that there are practitioners who believe that this disproportionate pain relates to alteration within neurological pain pathways etc. I accept that this can happen on occasion but in my view, the vast majority of cases of Chronic Pain Syndromes following soft tissue musculoskeletal injury are in essence psychologically based. While the initiation of the syndrome involves an involuntary response, for it to continue over a period of time voluntary input is required. By this I do not mean that the patient necessarily decides in their mind that they will complain more loudly or more often of pain etc. In some ways, this psychological response is conditioned when we are children or adolescents. … .”[19]
[19]DCB 94a
38 Further:
“From an orthopaedic viewpoint only, Mrs Kear would have the capacity to work as a receptionist/clerk. Her ability in these areas and also her ability to work as a call centre operator would depend on her ability to change position, stretch etc. Her ability to work as a retail sales assistant would depend on the amount of physical work involved in terms of packaging, stocktaking etc. I do not believe that Mrs Kear would have the physical capacity to work as a florist. Mrs Kear has not worked for over three years. Any return to suitable work would need to be on a graduated basis. After a period of time, an assessment would then have to be made in relation to Mrs Kear’s working hours. I would anticipate that she would be able to work at least half time.”[20]
[20]DCB 94b
39 Various vocational reports and assessments were tendered. Ms Louise Meilak of Flexi Personnel concluded the plaintiff, because of her injury and limited transferrable skills, had a very limited work capacity. Mr Bill Radley noted the plaintiff had very limited transferrable work skills and because of her pain and psychological reaction, was unable to return to her pre-injury employment and had no capacity for any other form of employment. On behalf of the defendant, Ipar Rehabilitation provided a vocational assessment report which identified a number of areas of employment which were said to be suitable, including as a call centre operator, general clerk, receptionist, sales assistant and florist. While the vocational assessments were of assistance in identifying possible areas of employment, in my view, the plaintiff’s work capacity falls to be determined by the medical practitioners, in particular the physical doctors.
40 In addition to the various treating and consultant physical specialists, the plaintiff was examined by a range of psychiatrists. I shall not refer to the opinions of those various practitioners. Most describe the plaintiff as suffering a pre-existing Major Depressive Disorder and an Adjustment Disorder as a result of a physical injury. In my view, the assessment of the plaintiff’s physical injury, and the Chronic Pain Syndrome from which I accept she suffers, lies within the assessment of the physical doctors. They are the ones best placed to determine the nature and extent of the underlying physical disorder, and whether the plaintiff’s reaction to that disorder is proportionate in the circumstances.
Conclusions
41 Prior to April 2009, I accept the plaintiff had underlying but asymptomatic degenerative disc disease in her lower spine at levels from L3-4 to L5-S1. Although she had many years before suffered a Major Depressive Disorder for which she continued to receive treatment, she was able to function well in the community, undertake full-time employment, and be actively involved with her family. In particular, she had no difficulties with her spine prior to that time.
42 I accept that in April 2009, she suffered an aggravation of the underlying disc disease which is clearly a physical injury with an organic basis.
43 I accept the opinions of many of the practitioners that the physical injury has been compounded by a Chronic Pain Syndrome, which has a psychological genesis and plays a prominent role in her current physical presentation.
44 I found the plaintiff a satisfactory witness who attempted to respond appropriately to questions put in cross-examination. There were no major credit issues put to her. However, I found the plaintiff particularly pain focussed. Although caution should be exercised in making an in court assessment, the plaintiff appeared to me, by her gestures and facial mannerisms, to be attempting to convince me of the severity of her pain. As with many applications where the physical injury is compounded by a psychologically-based Chronic Pain Syndrome, the process of disentangling one from the other is particularly difficult, made more so by the fact that none of the medical practitioners gave evidence or were challenged in cross-examination.
45 The practitioners whose opinions appear to me to be of most relevance are Messrs Simm, Kierce and Dooley, and Dr Middleton. I say that, because they are the practitioners who have turned their minds to the question of the extent to which the plaintiff’s presentation and the consequences are on the one hand related to the aggravation of the underlying disc disease, and on the other to the Chronic Pain Syndrome. All of these practitioners accept that the physical injury is clouded and to some extent overtaken by the presence of the Chronic Pain Syndrome. These practitioners describe the underlying degenerative disease shown on the radiology as mild or mild to moderate. There is nothing on the radiology or physical examination which shows any convincing confirmation of radiculopathy nor nerve compression. Aside from some mild signs to Mr Rogers, there was nothing abnormal on neurological examination. It is thus difficult to explain the plaintiff’s complaints of referred pain into her buttocks, down the front and back of both legs and into the feet. Even Dr McCarthy, the treating anaesthetist, who has provided extensive treatment over a considerable period, is not able to explain many of the plaintiff’s pain symptoms.
46 I was somewhat unimpressed by the opinion of Mr Kierce, in that after concluding in his first report that the plaintiff suffered a physical injury as a result of aggravation of the disc disease, in a subsequent letter, without further physical examination, said the plaintiff’s physical condition was modified by abnormal pain behaviour. This view was maintained in his subsequent report of 2011.
47 Both Mr Simm and Dr Middleton accepted that the plaintiff’s physical injury triggered a Chronic Pain Syndrome. Mr Dooley came to a similar view. The real issue is the question of whether, setting aside the Chronic Pain Syndrome, the plaintiff suffers consequences as a result of physical injury sufficient to satisfy the statutory test. Mr Simm turned his mind to this issue in his report of 17 January 2013.[21] He said that the physical component of the plaintiff’s condition permanently incapacitated the plaintiff for pre-injury employment, or alternative physically-based employment which involved bending, lifting and twisting. He said that from a physical point of view, she had the theoretical capacity for part-time office employment, within certain restrictions, and providing the plaintiff could stand and walk around at will. He noted that she would encounter difficulties in returning to non-physical work. Dr Middleton came to a similar view, in that he said that on the basis of a physical condition, taking into account the plaintiff’s transferable skills and her age, there was a limited area of employment available to her.[22]
[21]PCB 145.2
[22]DCB 183
48 Even Mr Kierce said that the plaintiff would never be able to return to her pre-injury duties but would be able to undertake alternative duties from a physical viewpoint.[23]
[23]DCB 29
49 Finally, Mr Dooley concluded that from an orthopaedic point of view, the plaintiff would have the capacity to work as a receptionist or clerk but that to work as a call centre operator, she would need to be able to change position and move around. Her ability to work as a sales assistant would depend upon the amount of physical work required. He said he did not believe the plaintiff could work as a florist. Further, any suitable work would need to be undertaken on a graduated basis and a subsequent assessment made as to the plaintiff’s working hours. He thought the plaintiff would be able to work at least half time.
50 All of these work capacity assessments are based on the physical injury suffered by the plaintiff, excluding the effects of the psychologically based Chronic Pain Syndrome. I therefore conclude that from a physical perspective, the plaintiff does not have the capacity to return to her former employment, nor to any employment which has significant physical elements, including bending, twisting and the lifting of heavier weights. I accept the opinion of these practitioners that the plaintiff does have, from a physical perspective, the capacity to work in alternative employment. In particular, I accept the opinion of Mr Dooley, which I found helpful, when he said the plaintiff did have a capacity to work in certain restricted areas of employment. However, to a significant extent that capacity would be affected by the amount of physical work involved and further, the plaintiff would need to have the ability to stand and sit and to rest where required. In addition, any attempted return to employment would need to be on a graduated basis and probably half time.
51 It is further necessary to consider the definition of “suitable employment” referred to in s5 of the Act. The matters to be taken into account include the plaintiff’s age, education, skills and work experience. The plaintiff is now sixty-one years of age, and necessarily that would place a significant impediment in her work capacity. Likewise, although she has had experience in the past in administrative and clerical duties, she has realistically been out of the workforce for a very considerable period. That presents a significant work capacity impediment.
52 Bearing in mind all of the restrictions which she faces, in my view, her capacity for work in a suitable area of employment as a result of her physical injury, is limited. While I am not able to say precisely the extent to which her work capacity is reduced in percentage terms, in my view, it is significantly beyond the 40 per cent the legislation requires. I am therefore satisfied the plaintiff meets the statutory test in relation to loss of earning capacity.
53 It follows the plaintiff also meets the test for pain and suffering damages.[24]
[24]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [63] – [64]
54 The plaintiff’s application thus succeeds.
55 I shall make consequent orders.
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