Kemp v Animal Welfare League of Victoria
[2016] VCC 665
•25 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-06183
| TRACEY KEMP | Plaintiff |
| v | |
| ANIMAL WELFARE LEAGUE OF VICTORIA | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2016 | |
DATE OF JUDGMENT: | 25 May 2016 | |
CASE MAY BE CITED AS: | Kemp v Animal Welfare League of Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 665 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd (2009) VSC 454; Ansett Australia Ltd v Taylor [2006] VSCA 171; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle (2009) VSCA 170; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment:Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Nightingale with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendants | Ms J Forbes QC with Mr Churilov | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant on 24 March 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s134AB(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked, and as being at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
15 The plaintiff relied upon three affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is presently aged forty, having been born in December 1975. She is married with children aged eleven and thirteen.
17 Prior to commencing work as an animal management officer with the first defendant in 2006, the plaintiff had done various shop work. Her last job prior to taking time off for the birth of her children, was working at Wendy’s.
18 Whilst in that job, the plaintiff suffered an arm injury, as a result of which she was off work for two years. She still has difficulty with fine hand movements as a result of this injury.
19 The plaintiff might have had some minor problems with her lower back when she had a car accident whilst pregnant, but they were not significant.[3]
[3]Transcript (“T”) 33
20 The plaintiff’s role with the first defendant was initially described as an animal attendant and later became known as an animal management officer, with little change in duties.[4] She started as a casual, and was then made permanent part time. That status suited the plaintiff with her family arrangements, and was what was available. She was probably looking for just part-time work to start with and commenced working about 34 hours a fortnight.[5]
[4]T11
[5]T12
21 Prior to the said date, the plaintiff’s duties included weekend work, and of the seven shifts worked per fortnight, three were on the weekends and sometimes a fourth. A full-time load was nine shifts a fortnight. On Saturdays, the plaintiff was paid time-and-a-half, and double time on Sundays.
22 Before the said date, plaintiff was promoted in January 2008 to the position of senior animal welfare officer. She was put in charge of staff and the role had some supervisory tasks. The job was mentally heavier, but not physically so.[6]
[6]T14
23 In 2009, prior to her injury, the plaintiff’s plan was to become a full-time permanent once her daughter, had settled into prep. The plaintiff discussed this plan with her supervisor, Diane Atkins.
24 Ms Atkins had made the plaintiff a senior but on a part-time basis, which was unusual. The plaintiff was the first employee the first defendant had promoted to senior who was only doing seven shifts. Prior thereto, all seniors had to do nine shifts. Ms Atkins promoted the plaintiff because she was going to work full time in the future.
25 Ms Atkins left the first defendant in 2009 and was replaced by Kelly Hobbes. The plaintiff agreed she did not discuss any precise plan with Ms Atkins before she left as to when she would be able to go on the full-time roster. Unlike the present position, there were a lot of casuals and it would have been very easy to pick up the extra shifts.
26 The plaintiff loved her work but she was waiting for her daughter to settle into school which would have occurred in mid 2010. Then the plaintiff would have worked both normal days and weekends. Before the incident, she would have been willing to work more than seven shifts.
27 The plaintiff did not discuss this issue with Ms Hobbes. After she started, Ms Hobbes spent three months getting trained up.[7] The plaintiff would not have started full-time work in the first school term because her daughter had Wednesdays off. The plaintiff probably would have started midyear, but she had not made any specific arrangements in this regard.[8]
[7]T20
[8]T25
28 If the plaintiff went to full-time hours, that would have involved other weekend shifts, because she was already working three weekend shifts. Her mother could have looked after the children but no plans had been made for her to do so.[9]
[9]T27
29 The plaintiff confirmed that before the said date, there were some times that she worked more hours if she had the chance and she was called in. When the first defendant was short of staff, the plaintiff also worked more hours.[10]
[10]T38. On 19 January 2010, the plaintiff worked a 72-hour fortnight
30 The plaintiff injured her lower back (“the injury”) on the said date in the course of her employment with the first defendant at its North Melbourne shelter (“the shelter”).
31 The plaintiff suffered injury when she slipped and fell heavily on her buttocks on the walkway concrete floor in the back room of the kennel area of the shelter (“the incident”). Thereafter, the plaintiff suffered immediate injury and pain affecting her low-back and buttocks.
32 The plaintiff was first treated by a general practitioner at Westgate Medical Centre (“Westgate”) and continues treatment at that practice.
33 The plaintiff had physiotherapy from Emily Centra, together with hydrotherapy and also dry needling. She also attended the gym to try and strengthen her core muscles and back muscles.
34 The plaintiff was referred to Mr de la Harpe, orthopaedic surgeon, whom she first saw in July 2011. The plaintiff underwent two CT scans and an MRI scan of her lumbar spine. Her treatment has been conservative and she has not undergone surgery.
35 Until recently the plaintiff had been prescribed Lyrica, 75 milligrams, two to four tablets a day which she took when not working. She is currently prescribed Topamax. She takes two tablets at night to help her sleep because of her back pain and leg symptoms.
36 The plaintiff uses Mersyndol night tablets if she has particular trouble sleeping. About twice a week, she takes two of these tablets. Even with tablets, it takes her a while to get to sleep and she still wakes up almost every night at least once a night due to back pain and the inability to get comfortable in bed.
37 If she is working, the plaintiff takes about three lots of three Nurofen throughout the day to get through work and sometimes she takes Panadeine with Nurofen.
38 The plaintiff has constant pain in her lower back that varies in severity, depending on her activities. She also has leg symptoms, in particular the left leg. She has groin pain and upper leg pain. She has problems with prolonged sitting, standing, and walking and lifting which is limited to about 10 kilograms.
39 The plaintiff no longer has physiotherapy because she cannot afford it. She has massages about every four to six weeks if money is available. She still does exercises at home.
40 Post injury, the plaintiff cannot sit for long in the office without increased pain. She cannot do lifting and manual tasks anywhere to the extent she did previously. She requires assistance from time to time from her co-workers. She no longer works with larger animals and cleaning duties are very minimal. She minimises bending, lifting, turning and sitting where possible. She is required to take regular rest breaks and she generally only walks with smaller dogs, feeding, watering and walking them. She generally only changes animal beds that are not in a low position.
41 At the end of a given shift, she is in increased pain and very tired and has to rest between shifts.
42 The plaintiff’s present hours equate to an average of 20 hours paid per week. She is unable to do more hours on a sustained basis.
43 After the incident, the plaintiff was on and off work. She kept trying to return to work and her hours varied.
44 The plaintiff worked as a Level 4 from 2012 until she stopped working in August 2014 because of a foot injury which occurred while fostering dogs at home. She returned to work after that injury at the end of January 2015.
45 At the time the plaintiff swore her first affidavit on August 2012, she was working five-and-a-half hours a day, three days a week – thirty-three hours a fortnight.
46 In 2012, a “Level 4” category was created to which all seniors were promoted. The plaintiff could not remember if she received a pay increase at that time.[11]
[11]T14
47 In 2013, the plaintiff applied for a WorkCover top-up payment. Initially, her request was denied because she was not working the required fifteen hours per week. She then increased her hours and received the top-up.
48 The plaintiff worked only weekday shifts. She was not allowed to do penalty rate work when she was on light duties and in the receipt of top-up payments.[12]
[12]T18
49 In 2014, before the plaintiff went off work with her foot injury, she was still working three days one week and three days the next, on eight-hour shifts, doing her usual range of duties. However, she was not required to look after the large dogs upstairs or work in other heavy duties.
50 The plaintiff carried out a range of duties on a typical day at work. She started upstairs in the shelter to check the animals were all right. She then went to the hospital and made sure all the sick animals were ok. She then cleaned and changed their bedding, refreshed their water and ensured their drips were still running.
51 The plaintiff then did the dishes, took out the rubbish, and made sure all animals were comfortable. Once the hospital was clean, she proceeded upstairs to the kennels to clean them, a task she no longer does because it is too physical, involving scrubbing, hosing down the walls and moving larger dogs.[13]
[13]T11
52 As the day progressed, the plaintiff carried out temperament testing of dogs, she walked the larger dogs, did adoptions, interviewed people who wanted to adopt, took in surrendered dogs, and dealt with emergency welfare people. There was a bit of paperwork and physical work.[14]
[14]T11
53 The plaintiff continued to do these duties as a senior welfare officer, also doing some supervision of other staff. There were normally four and, at other times, two seniors on, or sometimes just the plaintiff herself. Often staff called in sick, it just depended on the day, and the shelter was often short of staff. Casuals were, in large part, used to cover any shortfall.
54 In her third affidavit sworn in December 2015, the plaintiff described the heavy tasks involved in her pre-injury role with manual handling of dogs, heavy lifting, forceful restraining of moving animals, heavy and awkward daily cleaning, washing and scrubbing of walls, cleaning cages at various levels, including above shoulder height and below waist height, completing at least once a week an eight-hour laundry shift which was very physical. Overall, the cleaning work required physical agility, reaching, bending, stooping, twisting and application of force.
55 The plaintiff agreed she managed three shifts each week through late 2013 until August 2014, when she went off with her foot injury.[15] On her return to work in January 2015, she asked the first defendant if she could step back from Level 4 to Level 3. This request was initially verbal and then confirmed by her by email. She also advised that she wanted to reduce her shifts from six shifts a fortnight to five.
[15]T19
56 The plaintiff emailed Serina Horg about this issue. She had been the plaintiff’s manager since 2013. The plaintiff confirmed she had worked in alternate restricted duties, responsible to Ms Horg for eighteen months to two years.[16]
[16]T20
57 The plaintiff agreed she stepped down because of her absence from work relating to her foot. She took a lesser paying role because of foot problems, not because of her back.[17]
[17]T21
58 The plaintiff then said that she was struggling with her hours, not only because of her foot, but because of her back condition and the driving involved to and from work. Working a whole day exhausted her and on this new roster, she only lost three hours of paid work.[18]
[18]T39
59 The plaintiff asked her doctor to increase her daily hours and amended her certificates from seven to eight hours to eight to nine hours. Instead of working six days a week, the plaintiff worked five. That change saved the plaintiff a whole day of travelling and driving.
60 On a good day, it takes the plaintiff about forty minutes to drive from Hoppers Crossing to North Melbourne and on a bad day, over an hour.
61 This change in hours was something the plaintiff contemplated when she was off work for her foot injury. She agreed that her doctor was content to be guided by her as to the number of hours she thought she could work. It was entirely the plaintiff’s decision to go back from Level 4 to Level 3, because most seniors worked between seven and nine shifts. She was only working five shifts, and that was why she stepped down. Physically she could not manage the role like the other seniors so she thought it was fair to give the shifts to someone else.[19]
[19]T23
62 The plaintiff agreed there was no record of her reporting any difficulties with working six shifts through 2013 – 2014 until she went off work because of her foot. She was embarrassed to report her problems as she could hear people at work complaining and they used to roll their eyes if they had to help her and complained that she, as a senior, could not keep up. She did not say anything because she was “over it”. She had been ridiculed for five to six years. Constantly, she could hear other staff while she was walking up and down the stairs saying “we’ve got to help her again!”[20]
[20]T23
63 This is no longer the situation, because the plaintiff is not a senior or a supervisor and her co-workers do not have to help her. They actually “embrace” her now.[21]
[21]T23
64 The plaintiff agreed she did not raise these concerns with Ms Horg or with her doctor before she ceased work.
65 The plaintiff is now only paid for the hours worked. The top-up payment stopped because it was decided she had voluntarily reduced her hours and also reduced her position to a lower paid one and, on that basis, did not meet the criteria for a top-up.
66 There are no Sunday shifts available at all and they are taken by permanent staff. The plaintiff has not asked Ms Horg for Sunday work. Permanents who work Sunday “own” the shifts. There is no way to fit the plaintiff in on those Sundays unless another senior has annual leave.[22] However, she has not asked for a Sunday when a co-worker has gone on annual leave.[23]
[22]T24
[23]T25
67 The roster is done by Ms Horg and another employee. The plaintiff might be able to get a Saturday, as there are half shifts then, but there is definitely no Sunday work available.[24] If weekend work was available, the plaintiff agreed that would definitely increase her earnings. She could drop a day, or would take the extra money. She would take it in a “heartbeat”.[25] If she could do two Sundays in a fortnight, of course she was going to take them.[26]
[24]T25
[25]T26
[26]T26
68 The plaintiff agreed working two Saturdays and two Sundays would effectively give her seven days’ earnings. The reason she was not doing so was because the work was not available. If it was, she would do it.[27]
[27]T26
69 The plaintiff agreed that throughout her employment, the first defendant has been very accommodating of her desire to stay at work. She obviously loves her work and derives great enjoyment from it.
70 In re-examination, the plaintiff explained that the busiest days at the shelter are on the weekend. It would be harder for her to do her duties on those day as the work would be a lot more physical and a lot more demanding on her body.[28] The plaintiff struggled because of lower-back pain, working five shifts a fortnight.
[28]T36
71 At the end of a working day, the plaintiff’s back is very painful and sore. It gives her grief even to just drive home. Sitting in the car for an hour or so is very uncomfortable, and getting home and having to look after the family is a struggle. She is exhausted at the end of her working week and her back is very painful, thus she shuffled the roster.
72 The plaintiff confirmed working consecutive days twice a week and that at the end of the second consecutive day, she really struggles and her back is very, very sore.
73 The plaintiff would definitely not be able to increase her hours. She does not think she would be able to continue her current hours. She cannot manage to run the house, and “be a mum” and do everything. She just cannot do it.[29]
[29]T36
74 Before the incident, when the plaintiff was working seven shifts, she was able to do weekend work because her husband was home to look after the children and during the week, her mother shuffled her job so she could help.[30]
[30]T27
Activities
75 The plaintiff’s back injury affects many aspects of her life and she heavily relies on her husband for household chores. She avoids doing the fitted bed sheets because bending and flexing her back increases her pain. In 2013, the plaintiff and her husband decided to remove all carpet from their home so that she could just do sweeping as vacuuming was too difficult.
76 The plaintiff does some very light gardening but nothing like before her injury, when she loved gardening and would plant, cut and mow. Now she might do some light weeding but her garden is not like it was prior to the injury.
77 The plaintiff’s intimate life with her husband has also been affected as a result of her back injury. Intercourse is painful and also because she has increased her body weight due to her injury, she is embarrassed about her body.
78 The plaintiff tried to lose weight and in 2014, bought a treadmill to try and increase her walking; however, she developed plantar fasciitis. She used Mobic for a period and Proxen. That condition has largely resolved.
79 The plaintiff now tries to do gentle walking, ten to fifteen minutes a day. She does stretches and core exercises at home that she has learnt through Pilates. She also tries to control her diet.
80 The plaintiff occasionally goes bike riding with her husband and children but not nearly as much as they used to. Before the incident, they used to put the bikes in the back of the ute and go to Werribee South and ride on the bike path, or go for a bike ride after dinner on the bike path behind their house. She honestly could not recall how much she went riding after the incident and before she hurt her foot.[31]
[31]T31
81 The plaintiff did not think she had ridden a bike this year, and definitely would not be able to ride in the same way as she did pre incident because of her lower-back pain. She misses riding.[32]
[32]T36
82 The plaintiff still fosters dogs but she does not walk them at home because most of the dogs have health issues and do not have to be walked. Walking dogs is part of her work, having to carry out temperament testing, but she just has to walk a couple of metres filming a dog. She does not routinely take dogs out for a long walk at work.[33]
[33]T30
Summary of the Plaintiff’s gross earnings from personal exertion
Year ending 30 June Gross Income
from Personal Exertion2007 $29,497 2008 $35,112 2009 $38,412 2010 $34,528 2011 $18,595 2012 $29,039 2013 $29,192 2014 $33,143 2015 $21,605
The Plaintiff’s medical evidence
83 The plaintiff attended Emily Centra at Hoppers Crossing physiotherapy on 9 April 2010 following the incident. As of May 2011, Ms Centra reported that the plaintiff was slowly, but steadily progressing, but her condition was not stable.
84 Ms Centra thought the plaintiff’s pain behaviour and physical examination results were indicative of discogenic lower back pain with referred pain to the left groin.
85 Ms Centra noted the plaintiff’s symptoms could fluctuate and were easily aggravated if she worked beyond the recommended hours or duties. The plaintiff was then on light duties, administrative work only, working three shifts per week of no longer than five hours.
86 The plaintiff was referred to orthopaedic surgeon, Mr de la Harpe, first seeing him on 1 July 2011.
87 The plaintiff was then complaining mainly of back pain radiating to the left buttock and posterior hamstring.
88 On examination, there was limited lumbar movement and no neurological abnormality in the lower limbs. Mr de la Harpe noted that the MRI scan, which had been performed a year earlier, showed age-related changes only.
89 Mr de la Harpe doubted whether surgery would be required and arranged a fresh MRI scan to ensure there was no new lesion.
90 On review on 8 August 2012, Mr de la Harpe noted the MRI scan would be passed as normal for the plaintiff’s age. There was certainly no surgery required and he felt the plaintiff should continue with her physiotherapy and self-directed exercise.
91 Mr de la Harpe diagnosed mechanical back pain and soft-tissue injury caused by the incident.
92 At the time of that examination, Mr de la Harpe thought the plaintiff had no capacity to return to her pre-injury employment, noting that she had suffered a flare-up of her back pain. He could not give a prognosis or comment on stabilisation. He did not believe there was a strong likelihood of further deterioration.
93 The plaintiff's general practitioner, Dr Fotakis, most recently reported in June 2015.
94 Dr Fotakis reported that the plaintiff continued to suffer from chronic soft tissue pain affecting her lower back, hip and buttock, along with facet joint pain in the lower back. She continued to take analgesics and anti-inflammatories regularly for the pain.
95 Dr Fotakis thought that multiple investigations had not shown a definitive structural abnormality. Mr de la Harpe, and a neurosurgeon, Mr Han, concurred with his diagnosis.
96 Because of the plaintiff’s chronic pain and the impact on her work and home life, Dr Fotakis thought she had developed depression and anxiety, and she was seeing a psychologist.
97 Dr Fotakis considered the plaintiff was presently fit for modified duties with reduced hours. As there had not been much improvement for some time, it appeared her restricted duties may be in place permanently.
98 Dr Fotakis noted current restrictions included working three days a week, no lifting greater than ten kilograms, no repetitive bending or twisting of the lower back and avoiding sitting for more than half-an-hour at a time.
99 Dr Fotakis thought the plaintiff was likely to have exacerbations of her pain alternating with better periods, although she was unlikely to have significant deterioration with time. He considered keeping to her restrictions would be important.
100 Dr Fotakis thought the plaintiff’s condition had stabilised. He considered, long-term, she would suffer chronic pain and work restrictions and also a consequent permanent impact on non-work-related duties.
101 Dr Fotakis noted the plaintiff found it difficult to perform certain household duties. She had trouble walking the dogs and found sitting at the movies very difficult. She had to curtail her bike riding, while playing with her children could cause her a lot of pain, especially sitting to play board games or general horsing around.
102 Dr Fotakis also noted the plaintiff’s relationship with her partner had become strained, sexual intercourse could be painful and the plaintiff often resorted to alcohol to numb the pain and forget her troubles.
103 Mr Han, consultant neurosurgeon, saw the plaintiff on referral from her general practitioner once on 29 November 2011. The plaintiff’s presenting complaint was then left hip and groin pain.
104 On examination, straight leg raise was restricted due to pain over the left groin. There were no radicular symptoms. Deep tendon reflexes were difficult to elicit. The plaintiff’s gait was normal and her left hip appeared to be irritable.
105 Mr Han noted the CT and MRI scans, which did not show any significant findings.
106 Mr Han thought it was difficult to know the exact nature of the plaintiff’s pain, noting all scans of her lumbar spine and groin did not show any evidence of abnormality, nor did the hip x-ray show any significant osteoarthritis.
107 Mr Han believed the most accurate diagnosis would be soft tissue injury, and that would include muscle strain, ligamentous injury or inflammatory changes in the facet joints or sacroiliac joints.
108 Mr Han considered there was no serious pathology that would require specific treatment and he would certainly not recommend any lumbar surgery. As the hip was irritable, he suggested the plaintiff may require referral to an orthopaedic surgeon.
109 Mr Han concluded the plaintiff suffered a soft tissue injury to her lumbar spine. Having only seen her once, he could not comment on her progress and her work capacity.
110 In the absence of any serious pathology, Mr Han suspected the likelihood of further deterioration was low. If the plaintiff remained in pain he thought it might be worthwhile repeating the lumbar MRI scan and x-rays of her hips to investigate her condition further.
Investigations
111 Following an x-ray of the pelvis and left hip organised by Dr Fotakis in March 2010, it was reported joint spaces and articular surfaces were preserved at both hips and no significant degenerative changes had been identified. There was no abnormality of the sacroiliac joint.
112 Following a lumbar MRI scan in September 2010, it was reported there was mild left L4-5 and bilateral L5-S1 facet joint arthropathy being the only significant finding.
113 On the left hip, there was reported to be normal signal intensity throughout the left proximal femur and acetabulum and there was no hip joint effusion or labral tear. There was no sign of femoroacetabular impingement. The gluteus medius and minimus tendons were normal and there was no trochanteric bursitis. The iliopsoas tendon insertion, left hamstring and abduction regions were normal, as was the left inguinal region.
114 The lumbar MRI scan of 4 July 2011 was reported as an unremarkable study. There was no change compared to the previous MRI scan of 29 September 2010.
115 A CT scan of the plaintiff’s lumbar spine was organised by Dr Fotakis in March 2010. It was reported there was no abnormality seen at L1, L2, L2-3, nor L3-4 and no neural compromise at those levels. At L4-5, there was a mild annular bulge, but no neural compression.
116 At L5-S1, there was a mild bulge and possibly also a mild broadbased central disc protrusion. There was slight effacement of the thecal sac but no neural compromise. There was no abnormality of the facet joints and vertebral body heights were maintained.
117 It was reported that a June 2012 CT scan showed, at L4-5, there was minimal annular bulge but barely effacing the thecal sac. At L5-S1, there was also a minimal bulge barely effacing the thecal sac.
118 It was reported, following the upright MRI scan carried out in April 2014, that there was very minor narrowing of the L3-4 disc space, but the disc appeared within normal range and there were no disc herniations or stenoses.
Medico-legal examiners
119 In September 2011, the Medical Panel concluded the plaintiff had a five per cent whole person impairment resulting from the accepted lower back injury when assessed in accordance with s91.
120 On 28 October 2013, the Medical Panel found that because of the injury, the plaintiff was likely to continue indefinitely to be incapable of undertaking further or additional employment or work.[34]
[34]22.5 hours per week
121 Dr David Middleton, occupational health and rehabilitation consultant, examined the plaintiff in August 2013, March 2014 and 9 July 2015.
122 In August 2013, Dr Middleton thought the plaintiff needed to reduce her current workload from a full day to five hours per day on three non-consecutive days per week and work with a range of restrictions.
123 In March 2014, Dr Middleton considered that the plaintiff would be better served by attending work on three non-consecutive days, five hours a day, limiting her attendance at work to fifteen hours per week in order to improve her quality of life.
124 On the last examination, the plaintiff remained at work, attending nine hours a day, including a one-hour lunch break, five days a fortnight.
125 The plaintiff’s current main pain was in the lower back and related to prolonged postures. Her plantar fasciitis had resolved. There was still a pinching pain in the left buttock. The left groin and left hip pain was now an aching pain, no longer extending down into the left hip, but occasionally into the left thigh.
126 The plaintiff was then taking 150 milligrams of Lyrica twice daily for neuropathic pain, and Mersyndol and Nurofen for pain and her irritable legs.
127 The plaintiff continued to require assistance with domestic tasks and she had limited postural tolerances.
128 While Dr Middleton noted there had been some response to treatment of neuropathic pain with little change in regard to the plaintiff’s lumbar spine function and susceptibility to physical activity, a major problem was the development of her Irritable Leg Syndrome relating to driving, the discomfort also intruding into her sleep.
129 It remained Dr Middleton’s opinion that following the heavy fall in the incident, the plaintiff suffered derangement of the L3-4 and L4-5 lumbar discs associated with some straining of the soft tissues in that area.
130 Noting the plaintiff was limited to driving to work, with its extended travel time, she developed a significant Irritable Legs Syndrome affecting her driving and disturbing her sleep.
131 The plaintiff had become depressed as a result of the loss of her previously excellent physical capacity, and also her failure to recover despite extensive conservative management.
132 Dr Middleton thought the prognosis remained poor, especially since funding for Pilates had been withdrawn. He considered there was an urgent need to involve a spinal physiotherapist to ensure the plaintiff was able to fully engage her core lumbar stabilisers, consolidate her residual physical capacity, and limit the range of age-related degenerative process in her spine.
133 Exclusively in relation to her lower back, Dr Middleton thought the incident had precluded the plaintiff in prolonged standing, sitting, walking driving and/or stooping and repetitive bending and/or twisting.
134 Addressing exclusively the lower back injury and its impairment arising from the incident, Dr Middleton thought the plaintiff was suited only to part-time employment, where the maximum number of hours should be limited to five hours in any one shift, three non-consecutive days per week, equating to a maximum attendance of fifteen hours per week with restrictions.
135 Dr Middleton thought this incapacity would continue for the foreseeable future. He noted the plaintiff continued to suffer with ongoing pain restrictions, and disabilities and incapacity as a result of her lower back injury that had caused long-term consequences in her life apart from work, in particular, her joy in riding a bike, caring for animals and children and outdoor maintenance of her home.
136 Mr Stan Schofield, orthopaedic surgeon, initially examined the plaintiff on 3 September 2013.
137 Mr Schofield reported again in April 2014, having arranged an upright MRI scan in Sydney in April 2014, which showed minor narrowing at L3-4. He noted the report of the MRI scan; however, stated that despite the narrowing, the disc appeared to be within the normal limit and the report also stated there was no disc herniation or stenoses.
138 On re-examination on 24 March 2015, the plaintiff’ complained of constant lower back symptoms. There was referred left groin pain radiating to the outer aspect of the left hip and also intermittent symptoms affecting the left buttock, with radiation down the left leg from buttock to ankle.
139 On examination, there was significant muscle tenderness when the plaintiff was asked to bend forward, which she could do to approximately one third of normal range, with the fingertips not reaching her knee. Extension was minimal, and other movements were also reduced. Straight leg raising was forty degrees on the left and sixty degrees on the right. There was no leg muscle wasting. There was an absent left knee jerk and a normal right knee jerk.
140 Mr Schofield accepted the plaintiff’s condition had not significantly altered in the eighteen months between the two examinations, but he did not believe her condition had stabilised with regard to future treatment and the possibility of an improved result, probably requiring surgery.
141 Mr Schofield could not find any evidence of any non-organic signs or functional overlay in the plaintiff’s presentation; however, her clinical signs continued to show evidence of a disc prolapse, mainly affecting L3-4 or L5.
142 While the plaintiff was keen to work, she could only do so on a part-time basis.
143 Mr Schofield noted, despite the negative result from the upright MRI scan, the plaintiff showed all physical hallmarks of a prolapse. He advised she should be assessed by a specialist in spinal surgery, Mr Wilde, to determine whether or not a discography may be necessary to diagnose her condition.
144 Mr Schofield thought the plaintiff was a very genuine person without functional overlay, and with evidence of a significant disc prolapse which failed to be visualised even with an upright MRI scan. Diagnosis continued to be clinical evidence of a disc prolapse, mainly affecting L4-5.
145 Mr Schofield thought the plaintiff had a capacity for part-time restricted employment[35] and her future prognosis remained guarded. Further, he considered the consequences of the plaintiff’s condition significantly reduced her capacity for employment, social, recreational and other activities.
[35]Mr Schofield thought the plaintiff was then working 30 hours a week
146 Professor Bittar, neurosurgeon, examined the plaintiff in September 2015.
147 The plaintiff then reported constant midline lower back pain radiating into the left lumbosacral region, with an average severity of six to seven out of ten. She had intermittent radiating pain into the left buttock, hip, groin, hamstrings and calf. She also had intermittent numbness in her left leg, predominantly in her foot.
148 On examination, the plaintiff’s lumbar flexion was mildly restricted and uncomfortable. Extension was severely restricted and quite painful. The plaintiff had left-sided lumbar paravertebral tenderness in particular. There was a lesser degree of tenderness on the right side and there was no muscle spasm. There were no neurological abnormalities.
149 Professor Bittar thought the plaintiff presented with aggravation of lumbar spondylosis, with the facet joints most likely the predominant pain generator.
150 Professor Bittar considered that the plaintiff was partially incapacitated for work as a result of the incident injury. He thought she was able to work in a light physical role, but unable to take her full pre-injury duties. He noted she was working to her current capacity of about 45 hours per fortnight. Working approximately two days less per fortnight than she was working pre injury was, in his view, her maximum capacity without aggravating her condition.[36]
[36]PCB 140
151 Professor Bittar recommended a lumbar SPECT/CT scan reviewed by a qualified pain specialist, a series of diagnostic blocks which could be followed by radiofrequency denervation, and that the plaintiff’s current treatment should continue. He thought she was likely to suffer significant pain and disability in the long-term.
152 Professor Bittar provided a supplementary report in November 2015. On the balance of probabilities, irrespective of the treatment options, he thought the plaintiff’s condition was likely to remain stable and/or unchanged for the foreseeable future. He explained that the aim of further treatment would be to improve her quality of life and assist her with the management of her pain. Another important objective of such treatment would be to maximise the chance of her condition remaining stable and minimise the chance of it deteriorating.
153 The plaintiff was seen by Mr Peter Wilde, orthopaedic surgeon, in October 2015.
154 On examination, lumbar spinal movements were reasonably well preserved. Mr Wilde observed dysmetria and left paraspinal spasm. There was marked tenderness in the left paraspinal muscles, and over the left iliac crest region. There were no neurological abnormalities.
155 Having noted all investigations undertaken, Mr Wilde thought it difficult to make an accurate anatomical diagnosis. He thought the imaging suggested there was a pre-existing low-grade facet arthrosis at L5-S1. He suspected the plaintiff aggravated these degenerative facets when she slipped and fell heavily. She may have sustained a chronic musculoligamentous tear in the left paraspinal region which had healed with fibrosis.
156 Mr Wilde noted the discs were normal in all MRI scans he had viewed. Whatever the anatomical diagnosis, it resulted in lumbosacral dysfunction as the pain developed on the day of the incident and had continued unabated since. Mr Wilde thought work was, and continued to be, a significant contributing factor.
157 Mr Wilde would not recommend surgical treatment in the absence of a firm anatomical diagnosis. He thought the plaintiff should persevere with conservative measures.
158 Mr Wilde thought the plaintiff was doing the best she could with work. He noted she was a valued member of the first defendant’s staff, and it was able to accommodate her injury to enable her to continue working part time. He thought that was an optimal situation. He considered the prognosis poor, as he expected the plaintiff would continue to suffer with low-grade symptoms of chronic lumbar pain and stiffness, and that she would have to modify personal and work activities to accommodate her symptoms to avoid further deterioration.
159 Mr Wilde diagnosed lumbosacral dysfunction related to aggravation of facet arthrosis or musculoligamentous tear of the left paraspinal muscles of the lower back.
160 Mr Wilde did not believe the plaintiff had the capacity to increase her employment. He completely agreed with the Medical Panel, who opined she could manage twenty-two-and-a-half hours a week, and she did not possess a capacity to increase those hours.
161 Mr Wilde thought the plaintiff’s incapacity for work would continue into the foreseeable future. He also noted she was significantly restricted by her lower back injury and that she could not walk, stand, drive or sit for any length of time (she could not socialise or go to a film, queue, or carry out heavy household tasks).
The Defendants’ lay evidence
162 Lauren Spinelli was employed by the first defendant as the Human Resources officer in November 2012. She has been the Human Resources manager since January 2015 and is familiar with the plaintiff in that role.
163 Ms Spinelli confirmed from the plaintiff’s records that she commenced work as an animal attendant with the first defendant on 6 February 2006. She was initially contracted on a permanent part-time basis and worked 34 hours a fortnight at $13.88 per hour.
164 In December 2006, the plaintiff obtained a permanent full-time position as an animal management officer. It was a similar role, but a change of title.
165 From January 2008, the plaintiff’s position changed to senior animal welfare officer. There was then no Level 4, so she remained at Level 3, and her hourly rate increased from $15.88 to $18.45.
166 Ms Atkins was employed as Operations Manager and worked with the first defendant until November 2009.
167 At the time of her alleged injury, the plaintiff was working seven shifts a fortnight. In the first week, she worked 24 hours, three by eight 8 hours, followed by a 32‑hour week, of four by eight-hour shifts.
168 In the first week of the roster, the plaintiff worked Tuesday, Wednesday, Saturday and Sunday, and Tuesday, Wednesday and Sunday in the second week. The hourly rate was $18.91, with adjustments for penalties on the weekend.
169 Following her alleged injury, the plaintiff had some time off work when certified unfit, and there were many periods she worked modified duties.
170 In November 2012, the plaintiff was promoted to the role of senior animal welfare officer, Level 4, with an hourly rate of $23.22 ($25.52 currently). This role was a management position involving supervision of other staff in addition to the plaintiff’s other duties.
171 From around June 2013, the plaintiff was working six shifts a fortnight, three a week.
172 From late August 2014, the plaintiff had some time off work following a foot injury and was unable to return to work until January 2015.
173 On 28 January 2015, the plaintiff requested she step down from the senior animal welfare officer position effective immediately, and also requested she reduce her hours from six shifts to five shifts a fortnight.
174 Ms Spinelli confirmed the conversation and email to Ms Horg setting out the plaintiff’s request. The plaintiff also stated she dropped a day because she felt she was not at work enough, and someone who did more shifts deserved a chance at a management position.
175 The plaintiff returned to a Level 3. Because of her skills and experience, it was agreed she would be paid mid-range between Level 3 and 4. Thus, her pay decreased from $24.89 to $23.00 an hour.
176 The only difference between those roles was that Level 4 had management responsibility, involving performance reviews and feedback and coaching, although Level 3s would still be expected to provide coaching and support to staff where required.
177 Ms Spinelli noted that there is a current lifting restriction on the plaintiff’s duties of no greater than 10 kilograms, no repetitive bending or twisting, and avoiding sitting for more than half an hour.
178 The plaintiff’s supervisors were aware she was unable to perform certain parts of her role in line with her restrictions. The plaintiff cannot provide any animal handling to large dogs, which includes cleaning their areas. However, Ms Horg had advised that the plaintiff had never raised any concerns about her coping as a result of her alleged injury.
179 There are currently five employees who work in the adoption centre full-time, twelve part-time, and eight casual employees.
180 It is not necessary for a senior animal welfare officer to work full time. The plaintiff performed this role from November 2012 until injuring her foot in August 2014 on a part-time basis, and there are three other senior animal welfare officers who work part time.
181 The plaintiff’s current roster is Thursday and Friday on the first week of the roster, and Monday, Tuesday and Thursday in the second week. She would be able to work weekend shifts if she requested. If the plaintiff worked the same roster as prior to her alleged injury, rostering remained the same in the senior position.
The Defendants’ medico-legal evidence
182 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff in August 2010.
183 Mr Kierce thought the plaintiff had injured the lumbosacral disc in the incident. She also had signs of injury in her left hip joint, not as yet diagnosed. He recommended an MRI scan of her hip and lumbar spine.
184 Mr Kierce then thought, because of her back injury, the plaintiff should never return to her pre-injury duties, as they were too onerous for anyone with a weakness in the lumbar spine. He thought she was then fit for only part-time work involving administrative work.
185 Having received the MRI scan, Mr Kierce thought current treatment should be ceased, and self-managed exercise undertaken.
186 In a supplementary report, Mr Kierce confirmed the plaintiff had aggravated pre-existing facet joint arthritis at L4‑5 and L5‑S1 without any evidence of injury to the disc. He considered she was permanently unfit to return to her pre-injury duties. He thought that she should be employed only in work which did not involve prolonged or frequent bending, the lifting of weights of more than 15 kilograms, or the cleaning involved in her pre-injury work.
187 Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff in May 2011 for the purposes of an AMA assessment.
188 On examination, there was some reduction of spinal movement, and no wasting. There were no neurological abnormalities. He thought the plaintiff had aggravated L4 and L5 facet joint arthropathy.
189 Dr Barry Gilbert, public health physician in occupational medicine, saw the plaintiff in January 2012.
190 At that stage, the plaintiff generally experienced a nagging left-sided low back ache with occasional left groin pain.
191 In Dr Gilbert’s opinion, the plaintiff had a clinical history, symptoms and signs, together with radiological findings consistent with mild facet joint arthropathy at L4‑5 and L5‑S1. There was not, and had not been, any evidence of neural compromise, nor had there been evidence of pathology affecting the left hip joint. He thought it likely the plaintiff had developed mild episodic inflammation around the facet joint that may well aggravate an exiting nerve root, causing symptoms similar to sciatica. He thought the cause of most of the plaintiff’s pain was one of postural muscle pain associated mild facet joint arthropathy.
192 Dr Gilbert disagreed with Mr Kierce that the plaintiff had no capacity for pre-injury duties.
193 Dr Gilbert thought the goal should be to return to work as close as possible to the plaintiff’s pre-injury duties and hours. In his view, she then had a capacity for suitable employment at near normal pre-injury duties. Her specific restrictions were that she should not be lifting below waist height or performing repetitive bending or stooping, and no heavy lifting. In general terms, a weight limit was difficult to interpret in the context of the plaintiff’s duties.
194 Dr Gilbert thought it probably more meaningful to look at the plaintiff’s ability to manage smaller versus large animals and dealing with animals in cages at waist height rather than below waist height. He considered she could return to modified normal duties on normal working hours.
195 Dr Gilbert noted the plaintiff was devastated when it was recommended that she could no longer pursue her lifelong passion of working with animals. However, he thought the plaintiff did retain a capacity to work with animals provided the workplace was compliant and she could manage her restrictions.
196 Dr Wodak, neurologist, saw the plaintiff in late 2013.
197 Dr Wodak thought the plaintiff suffered a relatively minor injury in the incident. He noted that she had had pain mainly in her back and left groin for the past three-and-a-half years. MRI scans had not demonstrated a cause for her discomfort, and he did not think her symptoms were typical of any neurological disorder.
198 Dr Wodak advised he was unable to offer a diagnosis. He found it difficult to account for the plaintiff’s persisting pain. He noted if she had suffered soft-tissue injuries, it seemed surprising that they had not settled in the 3½ years since.
199 Dr Wodak reported that the plaintiff described paraesthesia and numbness of both feet. The numbness could not be readily accounted for, but one must assume her symptoms were in some way related to the incident. He noted she appeared to have had a minor injury and did not have radiological or clinical evidence of nerve-root entrapment, and he could not explain the sensory symptoms. He noted some inconsistencies on examination.
200 In the absence of a clear diagnosis, Dr Wodak thought it was impossible to comment on the plaintiff’s ability to return to full time work.
201 Dr Yong, specialist occupational physician, examined the plaintiff in October 2013.
202 In summary, Dr Yong thought the plaintiff was a woman who had chronic low back pain with radicular symptoms likely to have commenced with the incident leading to a mechanical onset of back pain. Her condition had been complicated by a deconditioning process.
203 In Dr Yong’s view, the plaintiff had a capacity then to perform tasks within the following restrictions: avoid repeated bending and twisting the back, vary posture regularly between sitting and standing, avoid firm pushing and pulling and avoid lifting more than 7 kilograms repeatedly.
204 Dr Yong thought the plaintiff would have a capacity to participate in a graduated return to work program with the aim of initially returning to her pre-injury hours doing a range of restricted duties in a further two months. He thought her prognosis was not unreasonable.
205 Dr Yong noted the total role of animal attendant was unable to be performed by the plaintiff. He considered she would be capable of working as a sales assistant and security officer with the restrictions he described.
206 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff initially in 2014 and re‑examined her in September 2015.
207 Mr Shannon diagnosed mechanical back pain associated with minimal disc bulging of the lumbosacral disc.
208 In his first report, Mr Shannon noted that the plaintiff should avoid work involving prolonged or repetitive bending and heavy lifting, but he thought she was capable of working normal hours. He thought the prognosis was that the back “may be vulnerable to further injury”, and that the plaintiff then required no specific treatment.
209 On re‑examination in September 2015, Mr Shannon confirmed the plaintiff’s condition was one of ongoing back pain in the absence of identifiable pathology. He noted she had ongoing groin pain without objective evidence of hip pathology.
210 Mr Shannon then thought the plaintiff had the capacity to increase her work hours to full time. Provided there was an avoidance of heavy lifting beyond 10 kilograms, he thought she would be capable of any or all of the positions suggested (sales assistant, customs officer, corporate security officer or puppy trainer/dog walker).
211 Mr Graeme Brazenor, neurosurgeon, initially examined the plaintiff in March 2014, and most recently in April this year.
212 On recent examination, the plaintiff told Mr Brazenor she was still working part time in a non-supervisory role. Her worst pain was in the left groin, low back, and upper left buttock.
213 Mr Brazenor thought it seemed fairly clear the plaintiff suffered a significant non-structural injury to her back in the incident. In his view, certainly the record of consultations and spinal scans would support her in her contention that the incident led to ongoing back pain which she did not have previously. That pain continued for at least two years. The question was whether she still had an increased level of pain six years after the injury, and to what degree that disabled her.
214 Mr Brazenor thought the history and examination findings were inconclusive. There was certainly no indisputably organic finding during examination other than the reproduction of left groin pain by left hip rotation, which had only one interpretation, hip-joint generated pain.
215 In an attempt to resolve any ongoing problems for the lumbar spine related to the incident, Mr Brazenor recommended that the plaintiff be asked to undergo an isotope bone scan. That might show L5‑S1 facet joints uptake, which would in his view, be the only evidence to support the her claim that she had ongoing low back pain relating to the incident.
216 Conversely, if the bone scans showed no uptake, it would be Mr Brazenor’s strongly held opinion on balance that the plaintiff was now as she was before the incident, and that any limitations in her work duties or hours were due to obesity, lack of fitness, and pre-existing mild degeneration in the L5‑S1 facet joints, which were clearly chronic at the time of the first CT scan in March 2010.
217 Mr Brazenor noted there were inorganic findings on examination. In fact, the only organic finding was the demonstration that left groin pain came from the hip and had nothing to do with the spine or the incident.
218 In terms of the plaintiff’s current capacity for work, Mr Brazenor referred to his earlier opinion as to the results of the isotope bone scan.
Vocational evidence
219 Recovre provided a sub 130-week vocational assessment report in April 2015.
220 Consultant, Lena Dao, from Recovre, noted that the plaintiff confirmed she was still working with her pre-injury employer and there had been no indication that would change. She was still performing a majority of her pre-injury duties, working 9 hours per day 5 days per fortnight on a range of restrictions.
221 Ms Dao recommended should her employment situation change, the plaintiff should consider employment as a senior animal welfare officer, different employer; animal welfare officer, different employer; retail assistant (e.g. pet shops) and receptionist (e.g. vet clinic).
Overview
222 There is no dispute the plaintiff suffered a compensable injury to her lumbar spine in the incident.
223 The consensus of medical opinion is that the plaintiff suffers mechanical back pain of soft tissue nature with some practitioners of the view that there were some degenerative facet joints that seemed to be generating her pain.
224 I accept that the upright radiology, as well as the normal MRI scans, did not show any particular significant abnormality.[37]
[37]T43
225 Whilst Mr Brazenor thought there were inorganic factors in the plaintiff’s current presentation, this finding was not made by the other practitioners. In my view, the plaintiff’s current presentation has a substantial organic basis.[38]
[38]See for example Meadows v Lichmore Pty Ltd [2013] VSCA 201
226 There is no suggestion of any back condition predating the incident.
Credit
227 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[39]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[39](2010) 31 VR 1 at paragraph [12]
228 Counsel for the defendants submitted that it was really a reliability issue about the plaintiff’s intentions to work.[40]
[40]T42
229 Counsel for the plaintiff submitted that credit “definitely” was not an issue.[41] Whilst there was reference in the index to the Defendants’ Court Book to surveillance film, no film was shown.[42]
[41]T46
[42]T47
230 I accept the plaintiff was a truthful witness who gave an honest account of her symptoms and related restrictions in both her daily life and her employment.
Consequences
231 There was no real challenge to the plaintiff’s evidence of the pain and suffering consequences of her lower back injury. The defendants’ focus was really on economic loss.[43]
[43]T45
232 I accept that since the incident, the plaintiff has suffered constant back pain of varying severity that is activity related. She also has leg symptoms, in particular the left leg. She has groin pain and upper leg pain.
233 I accept that before the incident, the plaintiff was fit and active. She now has restricted back movement and is limited in her ability to undertake physical activities such as walking, bending, lifting and prolonged sitting and standing.
234 Whilst treatment has been only conservative,[44] the plaintiff continues to take painkillers on a regular basis as well as Topamax. She also has problems sleeping and takes medication in that regard.[45]
[44]T45
[45]T48; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267 per Dodds Streeton AJ at paragraph [199]
235 It was not suggested that the plaintiff has a capacity to perform her pre-injury duties on a full-time basis. Counsel for the defendants, however, submitted that plaintiff was working significant hours in a job that had some physicality.[46]
[46]T44
236 In my view, since the incident injury, the plaintiff has continued to work with difficulty, and no longer has the capacity to perform the full range of her pre injury duties and is just coping at the moment working to her maximum capacity of up to twenty hours on average per fortnight.
237 I accept that not being able to work unrestricted and on a full-time basis is of great significance to the plaintiff, both in financial terms and also her enjoyment of work which she loves.[47]
[47]T46
238 In my view, the plaintiff’s back pain and restriction resulting in this interference with her employment is a serious consequences.
239 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
240 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
241 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
242 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
243 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
244 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[48]
[48]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
245 I am therefore required to determine a “without injury” earnings figure.
246 When calculating a “without injury” earnings figure, I am required to consider what the plaintiff was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
247 Counsel for the plaintiff submitted that although the plaintiff was working part time before the incident (seven shifts), she had the intention and the physical capacity to work full time at that time.[49]
[49]The Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraph [53]
248 Counsel for the plaintiff also relied on Forrest J’s comments at to the relevance of the plaintiff’s capacity for employment in Acir v Frosster Pty Ltd.[50]
[50][2009] VSC 454 at paragraph [165]
249 Counsel for the defendants did not accept the plaintiff’s claim that she intended to work full time before the incident. From the time the plaintiff started work with the first defendant, she had always been permanent part time. There were more than seven shifts a fortnight available before the incident but, by and large, she elected to work seven.
250 It was submitted the plaintiff’s promotion to a senior was not tied to any commitment that she go to full-time hours. There may have well been discussions with Ms Atkins to this effect, but one was not dependent upon the other.[51]
[51]T58
251 Further, there was no written confirmation from Ms Atkins of the plaintiff’s intention to go fulltime, unlike the plaintiff’s email on her return to work in 2015, in which she changed her roster.
252 There had been no challenge to Ms Spinelli’s evidence that three senior animal welfare officers worked on a part-time basis.
253 Counsel for the defendants submitted that Jessop[52] was distinguishable because in that case, the plaintiff was happy to work full time if it was offered but, mostly, there was nineteen hours of work available per week. In the present case, it was almost the reverse of the situation in Jessop. The plaintiff was willing to work seven shifts a fortnight pre incident and that was the level at which she chose to exercise her capacity.[53]
[52]The Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 (“Jessop”)
[53]T58
254 It was submitted that when an analysis of what most fairly reflected “without injury” earnings was conducted, earnings from full-time hours was not a “fairly reflective figure.”[54]
[54]T64
255 However, it was conceded that did not mean that the plaintiff was never going to perhaps think about the option of full-time work, but it was really no more than speculation on her part. Because of the way the defendants suggested figures worked, it probably was not crucial in that regard.[55]
[55]T59
256 Pre incident, I am satisfied the plaintiff intended to go to full-time hours and had the physical capacity to do so. She discussed this issue with Ms Atkins and was promoted to senior before the incident. While the plaintiff had children, she had already worked things out with her husband and mother in terms of looking after them.
257 The plaintiff had a financial need to work full time. Like many working mothers, she had intended to return to full-time work once her children were at school. Further, there was no evidence from the first defendant challenging the plaintiff in this regard.[56]
[56]T65
The figures
258 The parties agreed that on the basis as at 24 March 2013, the plaintiff was working ordinary hours of nine shifts per fortnight (76.5 hours) at $24.35 as a Level 4, she would earn $1,862.78 per fortnight and $931.00 per week. Sixty per cent of that figure is $559.00.
259 Counsel for the plaintiff submitted there was evidence this full-time work would have included some weekend shifts and with such penalty rates the plaintiff’s “without injury” earnings figure would then be greater. The plaintiff was working 3 weekend shifts in her fortnightly roster of 7 shifts as Ms Spinelli confirmed.
260 It was submitted it would not be unreasonable to allow at least one shift involving penalty rates.[57]
[57]T67
261 Working two Sundays at double time ($827.90) and two Saturdays at time-and -a-half ($621.00), plus five ordinary shifts ($1,035.00), the plaintiff would earn $2,483.90 per fortnight ($1,241.95 per week), sixty per cent of which is $745.19.
262 Counsel for the defendants suggested two other “without injury” earnings figures.
263 Working at Level 4, seven normal shifts a fortnight, the plaintiff would earn $991.00 per week, sixty per cent of which is $594.60.
264 Working at Level 4, nine shifts a fortnight, with one Saturday and two Sunday night shifts, the plaintiff would earn $1,195.00 per week, sixty per cent of which is $717.00.
“After injury” earnings
265 There were a number of scenarios suggested by counsel as to the appropriate “after injury” earnings figure.
266 Simply put, counsel for the plaintiff submitted that the plaintiff has a capacity to work a maximum of twenty hours per week. She is presently paid $23.57 an hour. She would, therefore, have the capacity to earn not more than $460.00 per week.[58]
[58]Counsel for the defendants calculated this figure of current earnings at $501 per week
267 It was submitted that residual capacity was reflected in the hours worked by the plaintiff, five shifts a fortnight, eight hours actual paid work per shift, during 2015 and 2016. It was also noted that in some weeks the plaintiff had worked less hours.
268 As full-time work involves nine shifts but the plaintiff is just coping with working only five shifts. It was submitted that she suffers the requisite loss.[59]
[59]T46
269 A summary agreed upon by the parties of the plaintiff’s recent earnings from October 2015 until mid April 2016 set out the plaintiff worked 444 hours over twenty-eight weeks, an average of 15.9 hours of actual work. On that basis, counsel for the plaintiff submitted she would clearly suffer the requisite loss.[60]
[60]T68
270 Counsel for the defendants gave the following possible scenarios of “after injury” earnings.
271 Based on the plaintiff’s actual present earnings, on Level 3 ($23.57) working five ordinary shifts, she earns $501 per week.
272 If the plaintiff worked five normal shifts and one Saturday and two Sundays per fortnight, her weekly earnings would be $749. If the plaintiff worked six shifts on that basis, she would earn $849 per fortnight.
273 Counsel for the defendants posed a second scenario where the plaintiff, working at Level 4 ($25.50 per hour), five ordinary shifts with one shift on Saturday and two on Sunday, would earn $812 per week. With six shifts on this basis, the plaintiff would earn $920 per week.
274 Further, worked out on the plaintiff’s actual earnings in the 2015-2016 YTD, the plaintiff is earning $728 per week.
275 It was submitted by counsel for the defendants that as the Act ultimately requires the Court to approach the issue on an annualised basis, the 2016 to date actual earnings are an important touchstone and the best demonstration of the plaintiff’s earning capacity.[61]
[61]T56
276 As of the 41 weeks to 17 April 2016, the plaintiff had earned $29,919.80, an average of $728 per week.
277 It was submitted that on this range of scenarios, the requisite economic loss had not been made out.[62]
[62]T54
278 Counsel for the plaintiff further submitted the weight of the medical evidence supported the contention the plaintiff is presently working to her maximum capacity.
279 Dr Fotakis was of this view in 2015. The Medical Panel, in late 2013, thought the plaintiff was likely to indefinitely continue to be incapable of doing further work than 22.5 hours per week.
280 In October 2015, Mr Wilde did not believe the plaintiff had the capacity to increase her employment. He completely agreed with the Medical Panel’s opinion. Professor Bittar was of a similar view.
281 As the plaintiff is currently actually working only 15.9 hours per week on average, it was submitted that it was not unreasonable to accept Dr Middleton’s view that her present capacity, with appropriate restrictions, was 15 hours per week.
282 Counsel for the plaintiff also relied on the plaintiff’s affidavit evidence as to her problems at work. Where she described struggling with her present duties and hours and is doing her best with medication.
283 It was submitted that on this basis, it could be confidently concluded the plaintiff’s “after injury” earnings had not been overstated.[63]
[63]T69
284 Counsel for the plaintiff conceded that there were a range of medical views based on an assumption of different hours worked, but the plaintiff is trying to get back to work as best she can and, looking at the present situation, the last few months working 15.9 hours per week is virtually now as good a guide to her earning capacity as the Court was going to get.[64]
[64]T70
285 Counsel for the defendants were critical of Mr Schofield’s opinion and also that of Dr Fotakis.
286 I accept that Mr Schofield, in 2015, based his opinion that the plaintiff was working to her full capacity on the misunderstanding that she was working thirty hours per week.[65] Dr Fotakis also appeared to think the plaintiff was in fact working three shifts a week, not the more recent roster of five shifts per fortnight.
[65]T61
287 Further, it was submitted it was not really to the point that Dr Middleton thought the plaintiff was not capable of working more than 15 hours per week as the Act refers to what the plaintiff “is earning whether in suitable employment or not”. The Act is concerned with what the plaintiff is actually doing in suitable employment.
288 A number of other reasons were advanced by counsel for the defendants as to why the plaintiff had not established an incident related 40 per cent loss of earning capacity.
289 It was submitted the plaintiff’s evidence that she was working to her capacity should be treated with caution because of the substantial period she managed her work without reported difficulty prior to the foot injury, and the change in roster thereafter resulted simply in a reduction of three hours’ work time for her convenience.
290 It was submitted it was clear there were weekend shifts available as Ms Spinelli confirmed, although other workers may have been doing them.
291 The plaintiff’s evidence was that she had not asked for Sunday work as she knew permanent staff “owned” those shifts. It was submitted the availability of those shifts was not relevant when determining “after injury” earning capacity.[66] The Act was concerned with capacity.[67]
[66]T54
[67]T59
292 In any event, the plaintiff said in cross-examination that she would do weekend work “in a heartbeat” if it was available. It was submitted that evidence should be preferred to her comments in re-examination about her inability to cope with weekend work at the shelter when it was much busier.[68]
[68]T55
293 It was submitted that while the plaintiff claims to be limited to her present working roster, she has a lot of flexibility from her general practitioner as to the hours certified and the first defendant has been relatively accommodating in this regard.[69] Despite her stated problems working consecutive days, there has been no explanation why the plaintiff had not made an alternative arrangement where this situation would not occur.[70]
[69]T55
[70]T56
294 Further, it was submitted the “after injury” earnings figure ought to make an allowance for overtime, as the plaintiff worked penalty shifts pre incident as that suited her family arrangements.[71]
[71]T57
295 It was submitted that the change in work hours and days post incident, in 2015, was unrelated to the plaintiff’s back injury, particularly when she had worked six shifts a fortnight for a substantial period before then, without reporting any difficulty from a physical point of view.[72]
[72]T60
296 It was submitted whether the plaintiff found it embarrassing or not working at the shelter because of comments of co-workers was not relevant and had nothing to do with her physical capacity, and that could not be taken into account.[73]
[73]T60
297 While the plaintiff had talked about her difficulties driving, she had not really described physical difficulties in undertaking her work tasks, whether at Level 3 or Level 4.
Overview
298 Counsel for the defendants submitted that earnings of $920 per week was the preferable hypothetical approach if actual earnings were not accepted.[74]
[74]T61
299 On the plaintiff’s behalf it was submitted the on all the evidence, at best, 20 hours per week was the plaintiff‘s absolute maximum capacity. Earning $23 per hour for 20 hours work, she earns $460 gross per week, which clearly falls below the 60 per cent.[75]
[75]T60
300 Further, even on Level 4, with an hourly rate of $25.52, the plaintiff would earn only $510, which was still clearly under the threshold.
301 In my view, the appropriate “without injury” earnings figure is based on full-time hours with some weekend work on penalty rates included.
302 On this basis, a figure which most fairly reflects the plaintiff’s earning capacity but for injury is $1,094.75 sixty per cent of which is $717. This figure is based on six ordinary shifts with a shift on penalty rates on Saturday and two Sundays. This was the situation with weekend work pre incident as Ms Spinelli confirmed when the plaintiff was working seven shifts.
303 In terms of the “after injury” earnings, I accept the plaintiff is presently working to her full capacity, undertaking lighter than pre-injury duties, on an average of 16 – 20 hours per week.
304 Given the plaintiff’s love of her work with animals, I accept that she would be working more hours if she had the physical capacity to do so.
305 Whilst the plaintiff changed her roster on her return to work after her foot injury, there is no evidence that that condition causes her continuing problems at work or that her duties were altered in any way to accommodate it. I am satisfied that the plaintiff’s constant back pain continues to interfere with both her duties at work and driving to and from work, and limits her to the hours currently worked.
306 Although the plaintiff may wish to do the more lucrative weekend work on penalty rates, that work is harder than during an ordinary shift, as the plaintiff explained as the shelter is much busier.
307 In my view, the plaintiff has the capacity to work a total of five shifts per fortnight. On this basis, she earns $501 per week[76] and would suffer the requisite loss.
[76]This figure is based on the defendants’ calculations – see paragraph 271 of this judgment
308 Even working three ordinary shifts and one shift on penalty rates per week, one Saturday and one Sunday, the plaintiff would earn $648 per fortnight, suffering the requisite forty per cent loss. Obviously, less weekend work in this five-shift total would also result in the requisite loss.
309 Taking into account all the evidence, I am satisfied the plaintiff does not have the capacity to earn in excess of $717 per week on a permanent basis.
310 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
311 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation 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 s134AB(38)(g).
312 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
313 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[77] and Advanced Wire & Cable Pty Ltd v Abdulle.[78]
[77](2009) VSC 454 at paragraph [147]
[78][2009] VSCA 170
314 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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