Lagwa v Victorian WorkCover Authority
[2021] VCC 700
•7 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE VIA ZOOM COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04464
| AILEEN LAGWA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 26 May 2021 | |
DATE OF JUDGMENT: | 7 June 2021 | |
CASE MAY BE CITED AS: | Lagwa v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 700 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY
Catchwords: Serious injury – back injury – pain and suffering consequences – pecuniary loss consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages and loss of earnings damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor with Ms V McLeod | Maurice Blackburn |
| For the Defendant | Mr J Angenent | Wisewould Mahony |
HIS HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The principles in respect to such an application are well known and are not in dispute. The plaintiff claims to have suffered a “serious injury” to her spine and seeks leave to commence a proceeding for pain and suffering and loss of earning capacity damages.
2The plaintiff was represented by Mr Geoff Chancellor and Ms Victoria McLeod of counsel. The defendant was represented by Mr Johannes Angenent of counsel. The plaintiff tendered two affidavits sworn by her and gave oral evidence. In addition, the parties tendered various medical reports and other documents. I take into account all of the tendered material and the transcript of the plaintiff’s oral evidence, but I only refer to it to the extent necessary in these reasons.
3The defendant also tendered and relied on video surveillance of the plaintiff obtained on 22 November 2017[1]. As discussed with the parties, noting that this matter proceeded by way of a remote hearing, during the hearing the video did not play in a fluid manner. Accordingly, again as discussed with the parties, I have watched the video surveillance again (of good quality) especially in light of the plaintiff’s oral evidence of what she observed in it, which I shall refer to in due course. For completeness, I also note that the plaintiff called for an admission that the defendant obtained 14 hours of surveillance of the plaintiff on 22, 23 and 27 March 2017, and a further 15 hours of surveillance on 21, 22 and 29 November 2017, which admission was made by the defendant.
[1]Exhibit D1
4It is convenient at this stage to set out the issues identified on behalf of the defendant as relevant to the determination of this application, because resolution of those issues will resolve the application one way or the other.
5The defendant raised as an initial issue the identification of compensable injury. The defendant’s position is that the plaintiff has a mild age- related degenerative condition of the spine that may have been aggravated by her work with the defendant but that any aggravation has “long since resolved”. The defendant next raised as an issue the extent of any impairment consequences. The defendant submitted that objectively any injury suffered by the plaintiff (if she did suffer injury) simply did not meet the “serious injury” test. The defendant next raised as an issue the credit of the plaintiff and said it could be an issue in respect to exaggeration of symptoms. Finally, the defendant raised as an issue the plaintiff’s residual capacity for employment. It submitted that the plaintiff had a long and varied work history and had a retained work capacity such that she did not meet the economic loss “serious injury” test.
The credit of the plaintiff
6By reference to the issues identified by the defendant, it is convenient to deal firstly with the issue of credit, as in serious injury applications, the credit of the plaintiff will often be critical to the determination of the application, particularly when it comes to assessing a plaintiff’s subjective complaints for the purposes of determining “seriousness”.
7The video surveillance depicted the plaintiff engaging in simple domestic activities such as using a hose to water the garden and to clean her car. She was seen to drive the car, firstly to a Costco supermarket and then to an Aldi supermarket. She was seen to push a shopping trolley and to load items in and out of the trolley and into her car. Having watched the video again without any technical difficulties, based on my observation of her in the video, the plaintiff generally moves slowly but she does not appear to move in a restricted manner as such. The video does not depict her engaging in rigorous physical activity. As best as I could glean from the video and based on her facial expressions, she does not appear to be happy in the video – she appears flat in her affect – but I could not see any obvious sign of her appearing to be in pain.[2] The video must be seen in context and it does not depict her doing anything that she says she cannot do. Overall, the video is really “neither here nor there” when it comes to the resolution of this application.
[2] Transcript (“T”) 35, Lines (“L”) 30
8The plaintiff at times in the “witness box” appeared either angry or frustrated by questions asked of her in cross-examination. Some of her answers were not relevant to the question she had been asked, as conceded by her counsel.[3] However, there is no suggestion that giving evidence and the Court process is familiar to her. Notwithstanding the garrulous manner in which she responded to some questions, overall I am satisfied that she did her best to provide honest answers to the questions asked of her insofar as she understood those questions and what was required of her.
[3] T102, L7-8
9In short, I reject the submission that the plaintiff’s credit has been impugned either by the video surveillance, or the manner in which she gave her evidence. I formed the view that she was attempting to give honest answers to questions asked of her, even if at times she provided more detail than necessary to answer a question. There was nothing arising out of her oral evidence or the video surveillance that was of concern to the issue of her credit, or would cause me to accept that she has exaggerated either her symptoms or the impairment consequences.
Background and employment history
10The plaintiff’s first affidavit sets out her background and employment history. She has had a long and varied work history in administrative type employments. It is convenient to reproduce her evidence regarding her work history as set out in her first affidavit as follows:
“I was born on 13 April 1953 and I am currently aged 67 years old.
I attended Hampton High School and completed Year 11. I subsequently attended Stott’s business college for 6 months.
After college I worked as an input clerk for a company for approximately one year. My next job was at Mays Concrete as an administrative assistant two years. Thereafter I was employed by the Department of Health as a data entry clerk for approximately 6 years. My next job was at Mayne Nicholls once again doing data inputting for approximately 2 years.
I then worked for Helping Hand Association performing administrative duties for about 4 years. I was out of the workforce after the birth of my first child for 6 months before returning to work on a part time basis for another year.
Thereafter I worked for Compensation Investigations on a part time basis before working for Australian Seafood Producers in an administration role full time for 3 years.
I obtained employment with AAMI Insurance as a receptionist for approximately 2 years.
I then moved to Yarrawonga. I had my second child and was out of work for approximately 1-2 years. I then got a job at Mulwala District Services Club as a bar attendant for approximately 4-5 years.
My next job was at Capri Waters, a timeshare business; cooking, waitressing and assisting in running the business for approximately 2 years. I then opened up a Centrelink Office and did some casual work for a solicitor, and night work in a restaurant for about 1 year.
I bought a business, Border County Clothing, with a friend which we operated for around 1.5 years.
I then worked at the Left Bank café for approximately 1.5 years.
I returned to Melbourne 1998 and went to work at Designer Kids as a receptionist for 1 year. I then worked at Centre Euro Wines in administration for approximately 1 year.
In July 2000 I commenced employment with the Defendant as a payment clerk and I was ultimately promoted to the position of recoveries and settlement consultant in around 2012. My duties included dealing with insurance claims which involved speaking to customers and other insurance companies on the phone, inputting data in computers, making decisions regarding payment of claims. I worked 5 days per week, 8 hours per day.
I moved to Queensland in late 2012 and continued working there as a recoveries and settlement consultant. I returned to Melbourne 2015 and resumed my position as a recoveries and settlement consultant doing the same duties as I did in Queensland until February 2016. In February 2016 I was offered an administrative role dealing with mail, paying invoices, distributing mail in the department, folding mail and looking after office equipment.”
Did the plaintiff suffer injury with the defendant?
11For many years the plaintiff was employed by the defendant in an administrative role. She claims to have suffered injury to her back while performing administrative duties with the defendant. Essentially, she blames a poor ergonomic setup and, in particular, chair/s that were unsuitable for her. As she says in her first affidavit, in her view:
“This in turn put significant pressure on my low back. My injuries and symptoms developed gradually over time, commencing in around September 2015 and got to the point where I could no longer cope with my work duties in April 2016.”[4] [5]
[4]Plaintiff’s Court Book (“PCB”) 7
[5] In evidence in chief the plaintiff corrected the date she ceased work to May 2016
12The defendant takes issue with the suggestion that a poor ergonomic setup caused or contributed to an injury to the plaintiff’s lumbar spine. The defendant submitted that the plaintiff has an underlying bad back – a degenerate lumbar spine condition – which may have been productive of symptoms when she was seated to perform her work duties, or may even have caused a temporary exacerbation of that underlying degenerative condition, but that the ergonomic setup of her workstation did not and could not contribute to any permanent injury. The issue of identification of compensable injury is, therefore, the next issue to determine. It is really the primary issue to be determined.
13The plaintiff did make complaint about the ergonomic setup of her workstation, as evidenced by the fact that on 20 April 2016, the defendant conducted an ergonomic assessment report[6] of her workstation. That report concludes that the seat pan on the plaintiff’s office chair was too deep for her stature and she was unable to access the back support. An alternate chair was arranged[7].
[6]Defendant’s Court Book (“DCB”) 52
[7]DCB 53
14I am satisfied that the chair that the plaintiff was provided in the early part of 2016 did produce back pain when she was seated in it, which the defendant does not dispute. However, I accept that the development of back pain does not equate to suffering “injury”. Equally, I make no comment as to whether the ergonomic setup would give rise to a common law cause of action.
15It is, therefore, necessary to analyse the medical evidence to determine the primary issue, namely whether the plaintiff has suffered compensable injury to her spine in the course of her employment with the defendant as alleged by her, as opposed to simply suffering transient back symptoms while performing her work duties seated at a workstation.
16The plaintiff does have a limited history of prior back pain. In her first affidavit she described attending a chiropractor, Dr Stanley Poon, “on and off since 2000 for occasional neck twinges” and that she “also saw him briefly when I started work with the Defendant due to poor seating arrangements. This issue was quickly rectified.”[8] In fact the plaintiff had attended Dr Poon on 4 May 2004 for assessment for pain in the right ankle, lower back, right shoulder, elbow and neck, after a fall at a Safeway supermarket. Dr Poon then diagnosed “Biomechanical dysfunction of the lumbosacral facet joint with regional myofascitis.”[9] By letter dated 22 June 2004, Dr Poon records that the plaintiff by then had undergone eight chiropractic treatments and that her condition “shows signs of improvement but the response is rather slow”. Dr Poon then stated that “Majority of the condition is associated with muscle spasms in the lower back and shoulder/region”. He also then recorded that the plaintiff had fallen down a flight of stairs at home on 28 June 2004 and she had claimed that it felt “that the lower back had given way as she transferred weight onto the right leg” causing the plaintiff to suffer a fracture of the right humerus and re‑aggravation of the lumbosacral region, described by him as a temporary setback.[10]
[8]PCB 8
[9]DCB 37
[10]DCB 39
17The plaintiff was cross-examined regarding the attendances on Dr Poon in 2004. She accepted that she attended Dr Poon in 2004 and no mention of that was made in her affidavit.[11] She did not accept that she had lower back trouble stretching back at least to 2004. She said “Because it was my neck and not my back that had the twinges.”[12] When asked why it was not in her affidavit, the plaintiff said that she had probably forgotten about it.
[11]T 17
[12]T18, L1−2
18There is no suggestion in the evidence that the plaintiff had ongoing back problems after the falls and limited treatment with Dr Poon in 2004. There is no evidence that the plaintiff had an ongoing back problem before she developed symptoms at work in late 2015 and through until April 2016, as earlier set out, even if the claimed compensable injury is the aggravation of degenerative change in the lumber spine.
19The plaintiff has attended at the Bluff Road Medical Centre off and on over the years, save for the period between 2012 and 2015 when she lived in Queensland. She has consulted several doctors at that clinic, but her principal general practitioner has been Dr Belinda Tricks. In a report dated 11 April 2018,[13] Dr Tricks records that since April 2016 the plaintiff had several presentations with lower back pain, with some right and then left buttock and leg pain. Dr Tricks states that the plaintiff “associates this with prolonged sitting without breaks at her workstation. The pain persists and she has been unable to return to work as she is required to sit for long periods.” Dr Tricks does not, however, provide a clear diagnosis in that report. In that sense it is not particularly informative, although the fact that Dr Tricks was recording ongoing symptoms in the plaintiff’s low back and legs, with a suggestion of a need for a pain-management program, some two years after the onset of symptoms, suggests that whatever the plaintiff’s condition then was, it was not a temporary condition. That is the extent of any reporting from Dr Tricks. That is an evidentiary omission that I take into account.
[13]PCB 61
20On 10 June 2016 the plaintiff returned to see Dr Poon regarding low back pain. In a report dated 12 January 2018,[14] he records a history that the “issue at hand” was due to a chair making the plaintiff’s back painful. He sets out the treatment provided by him, described as “conservative treatment for disc protrusion”. He reports that the plaintiff was then unable to sit or stand for greater than 15 minutes before aggravating her back pain.[15] Once again that is a somewhat out-of-date report from a treating health practitioner, and again is an evidentiary omission. But it also confirms that symptoms were persisting in January 2018 despite the treatment provided by him.
[14]PCB 55
[15]PCB 56
21The plaintiff was referred to Dr Olivia Ong, Pain Medicine Fellow at Caulfield Pain Management and Research Centre. By letter dated 16 January 2018, Dr Ong reported back to Dr Tim Hucker[16] at Victoria Pain Specialists[17] and also to Dr Tricks. It is clear from Dr Ong’s report that there is a typographical error in so far as the doctor records the plaintiff sitting on the wrong chair at work in 2014. In that report, Dr Ong recorded her impression that the plaintiff had a three-year history of worsening, likely discogenic, low back pain. She apparently discussed a pain management program with the plaintiff. In respect to ‘causation’ she states that:
“Sitting on the wrong chair at work during 2014 exacerbated her pain.”[18]
[16] There is no report or records from Dr Hucker, which is another evidentiary omission
[17]There is no material from Dr Hucker
[18]PCB 59
22Pausing and for completeness, the tendered evidence includes reports of radiology undertaken of the plaintiff’s spine. Amongst that material is the report of an MRI scan of the plaintiff’s lumbar spine dated 5 August 2016.[19] The report of the MRI concludes there to be “Low-grade degenerative disc disease” and “No focally compressive disc prolapse”. A further MRI was undertaken on 23 January 2018, at the referral of Dr Poon. That MRI is reported as demonstrating “Annular fissures/L4‑5, spinal canal otherwise unremarkable”.[20]
[19]PCB 37
[20]PCB 38
23Finally, completing the discussion of the reporting from treating practitioners, Dr Tricks referred the plaintiff to Dr Marco Fedi, neurologist. In a letter back to Dr Tricks dated 5 June 2017,[21] Dr Fedi noted that the plaintiff had an MRI of the lumbar spine which “showed just low grade degenerative changes at different levels but no disc degeneration or root compression”. He said that “In summary this lady has chronic lower back pain and it looks that despite the diagnosis this is becoming a chronic and disabling issue.”[22]
[21]DCB 34
[22]DCB 35
24In her second affidavit[23]the plaintiff sets out that her current treatment is to consult Dr Tricks who continues to prescribe Panadeine Forte, Endep, Temazepam and Cymbalta. I have already mentioned the omission of the lack of any recent reporting from Dr Tricks. However, in cross-examination it was not suggested to the plaintiff that she does not attend Dr Tricks or that she does not take the medication as described and so I am able to comfortably accept the plaintiff’s evidence of treatment with Dr Tricks even in the absence of an up-to-date report, as well as the plaintiff’s affidavit evidence that Dr Tricks has not seen fit to refer her to any other specialists.[24]
[23] Sworn 3 May 2021, PCB 13
[24] PCB 18
25Turning next to the medico-legal reports, the plaintiff was examined by Dr Leon Le Leu, occupational physician, at the request of the WorkCover agent, on 22 July 2016. In a report of that date,[25] Dr Le Leu answered relevant questions as follows:
[25]PCB 73
“1. What injury or medical condition does the worker have? (Include your clinical diagnosis where you can provide one. If the worker’s injury or medical condition has resolved, please provide your clinical opinion on what injury or medical condition the worker’s history and examination were consistent with.)
In my opinion, she has a disc injury in the lumbar spine but she also probably has an exacerbation of pre-existing degeneration in the thoracic spine and neck.
2. In your clinical opinion, what has caused the worker’s injury or medical condition? If there are multiple causes, please list all of these. Please give specific consideration to whether the worker’s employment is still a cause.
It is more probable than not that the impaired economics of the workplace in the form of a poor chair or one not fitted for her have resulted in an exacerbation of these pre-existing problems.
3. In your clinical opinion is the worker’s current incapacity materially contributed to by the claimed injury? If yes, please provide a timeframe as to when you would anticipate resolution of the work related injury or medical condition. Please explain your opinion.
Her current incapacity is materially contributed to by the claimed injury.
4. In your clinical opinion, is the worker’s injury or medical condition an aggravation, a recurrence, an acceleration, an exacerbation or a deterioration of any pre-existing injury or disease? Please explain your opinion.
It is most probable that her medical condition is an aggravation of pre‑existing degeneration of the spine.
5. If you answered to Q4, do you believe the aggravation, recurrence, acceleration, exacerbation or deterioration has now ceased?
The aggravation has not ceased.
6. In your clinical opinion can the worker return to work in her pre-injury duties and hours?
She cannot return to work in her pre-injury duties and hours at present.”[26]
[26]PCB 79−80
26Dr Le Leu was then asked to review various clinical notes. He then provided a further report dated 9 September 2016,[27] in which he essentially stood by his earlier opinions.
[27]PCB 85
27Dr Le Leu then reviewed the plaintiff on 18 November 2016 and produced a report of that date.[28] In that report he noted the plaintiff had developed an all‑over pain but more in the lower back, with issues in the left leg in the form of pins and needles. He noted ongoing chiropractic treatment and the need for medication including Panadeine Forte. He repeated his earlier opinion that “It is more probable than not that her injury was caused by the ergonomic situation sitting at an unsuitable chair” and that “Her condition is probably an aggravation of pre‑existing degeneration, but there was no documentation of pre‑existing degeneration.”[29]
[28]PCB 88
[29]PCB 94
28Next, the plaintiff was examined by Associate Professor Umberto Boffa at the request of the WorkCover agent. In a report dated 25 October 2018, Associate Professor Boffa noted the plaintiff reporting severe constant low-back pain and persistent left anterolateral thigh numbness. He concluded that she presented with facet joint type low back pain without radiculopathy. He said “The worker has mechanical low back pain without radiculopathy” but that she did not require physical treatment. He said that “The worker’s medical condition results from manual handling in the course of her duties” but that there was nothing “other than injury affecting recovery including return to work”.[30]
[30]DCB 21
29The plaintiff was then assessed by Mr Peter Scott, consultant surgeon, at the request of the WorkCover agent, on 4 December 2019. By a report dated 12 December 2019,[31] he sets out a history that over a period of some months up until 20 April 2016, the plaintiff developed low back pain with radiation to her left thigh, “sitting in a mobile chair which was too large for her, and she tended to slip forward, and in preventing this she began to complain of some low back pain.”[32] Then in response to specific questions, Mr Scott said as follows:
“1.1 Description of accident/injury
A description of the onset of symptoms over a period of some months to 20.04.2016 has been given above. In particular it should be noted that she had difficulty sitting on a chair which was too large for her and which was on wheels and physical effort was required to maintain stability while carrying out her duties. Symptoms gradually worsened until she ceased work on 20.04.2016. She has not worked since.
1.2 History since accident/injury
She continues to complain of chronic pain in her back with symptoms extending into her left lower limb.
There has been no resolution of symptoms and she continues to be treated for pain management and associated anxiety and frustration.
Employment continues to materially contribute to her injuries.
1.3 Current signs and symptoms
Current symptoms and signs have been given in the body of the report. She does complain of chronic pain with a reduced range of movement of her back and marked tenderness over the lumbosacral spinal area and features of left thigh wasting and absence of the left knee reflex and some minor sensory changes, indicative of radiculopathy.
Symptoms are intermittent.”[33]
[31]PCB 63
[32]PCB 64
[33]PCB 67
30In respect to diagnosis, Mr Scott said:
“4.1 Diagnoses
The current diagnosis is work aggravated degenerative changes in discs and facet joints in the lumbosacral spine with features of mild left lower limb radiculopathy and associated anxious or frustrated response which in turn requires clarification by a consultant psychiatrist.
4.2 Prognosis
The prognosis is poor in view of the lack of response to various forms of treatment for her organic pathology.
The clinical presentation is consistent with workplace problems and repetitive movements until 20.04.2016 as given above.”[34]
[34]PCB 68
31Next in time, the plaintiff was examined for medico-legal purposes by Professor Peter Teddy, neurosurgeon. In a report to the plaintiff’s solicitors dated 17 November 2020,[35] Professor Teddy noted the onset of back pain working with the defendant. He was asked and answered relevant questions as follows:
[35]DCB 30
“(a) What is the precise physical or organic injury suffered by my client as a result of this workplace accident?
There was no specific accident as such. Her symptoms were said to have been attributed to longstanding poor ergonomic positioning at her workplace while working long hours in an administrative capacity. She suffered progressive symptoms of back and lower limb pains and sensory and motor symptoms as described but there is no demonstrable neurological deficit, only modest changes of a degenerative nature in the lumbar spine on imaging and specifically, no clinical evidence of radiculopathy. She did have a sensory impairment in the distribution of the left lateral cutaneous nerve of thigh that most probably was not work related.
Her imaging does reveal a small annular tear at the L4/5 disc level and there is mild facet arthropathy both at L4/5 and L5/S1.
I believe that Mrs Lagwa therefore has evidence of exacerbation of (mild) lumbar spondylosis without radiculopathy. She has unrelated left meralgia paresthetica.
(b) Does my client require ongoing treatment and/or medication for the physical or organic injury?
It is now some three years since the onset of her symptoms and she describes no real improvement in her condition. She would benefit from a referral to an experienced pain management clinician and may benefit from a planned multidisciplinary pain management program.
(c) Will the above restriction, disability and incapacity derived from my client’s physical or organic injury remain for the foreseeable future?
This would depend on her response to a pain management program as outlined above but it seems likely that given the longevity of her symptoms, she will be subject to back pain of a variable severity and frequency for the foreseeable future.
(d) Whether you consider on the balance of probabilities the activity described in Paragraph 15 of the plaintiff’s serious injury affidavit were a cause of her injury and present incapacity?
On the evidence provided by Mrs Lagwa, her general practitioner and Dr Marco Fedi, it would seem that Mrs Lagwa’s symptoms were linked to the difficulty she experienced at her workstation as described in her affidavit and were representative of an exacerbation of a mild lumbar spondylosis.
Under normal circumstances, given the discontinuation of such working practices and maintaining weight control and a regime of regular exercise combined with conservative measures, such symptoms might be expected to improve considerably over the three years that have elapsed since she last worked in this capacity. Referral to a multidisciplinary pain management team is recommended.”[36]
[36]DCB 32−33
32The plaintiff was then seen at the request of her solicitors by Dr James Rowe, specialist occupational physician. He examined the plaintiff on 4 November 2020 and produced a report of the same date.[37] In that report he notes that:
“Over the course of her employment she developed low back pain which she attributes to a poor ergonomic set-up. She says she spent most of her days sitting in chairs that were not suited to her.”[38]
[37]PCB 39
[38]PCB 41
33Dr Rowe was also asked specific questions, relevantly answered as follows:
“1. History, treatment to date and prognosis;
This lady has developed chronic low back pain with radiculopathy in the left leg as a result of her work at Suncorp.
She worked in a seated position for extended periods of time in a seat which was not ergonomically suited to her.
Unfortunately her symptoms have not improved despite her ceasing work some 4½ years ago as well as extensive conservative treatment including physiotherapy, chiropractic treatment, hydrotherapy, acupuncture and ongoing medication.
The prognosis is not good. At age 67, it is likely there will be further deterioration rather than improvement in her condition, over the next few years. She has not responded to conservative treatments and treating specialists have not proffered any indication for injections or surgery.
It would be useful to obtain an updated MRI scan as the most recent is now more than 2 years old. If this could be obtained and he report made available to me, I may be able to make further comments.
She should continue with conservative treatments including chiropractic treatment and a walking program. This may provide her with some symptomatic relief but will not cure her condition or improve her capacity to return to work.
2. Her capacity for pre injury employment;
She does not have capacity for her pre-injury employment. She is unable to perform duties that involve:
-Prolonged sitting or standing;
-Walking long distances;
-Repetitive bending and twisting;
-Repetitive or heavy lifting;
-Repetitive or forceful use of the left leg;
-Driving longer distances.
Her pre-injury duties, while largely sedentary, involved prolonged sitting and standing. This is aggravating for her low back pain and she is no longer suitable for this type of work.”[39]
[39]PCB 43−44
34Finally, the plaintiff was seen by Mr Rodney Simm, orthopaedic surgeon, at the request of the defendant’s solicitors. He examined the plaintiff by videolink on 20 April 2021 and produced a report of that date.[40] Like the other doctors, he was also asked relevant questions regarding diagnosis, prognosis and the like. In response to questions, he answered as follows:
“2. Please describe the plaintiff's presenting condition in medical terms.
The diagnosis is chronic non-specific low back pain. The MRI scan shows minor, naturally occurring age-related changes with no neural contact or compression. Chronic non-specific low back pain is extremely common across the spectrum of the general population. Low back pain tends to worsen in the older age group and she also had other potential predisposing factors to chronic low back pain, which included a high BMI, diabetes and work-related stress in the setting of somebody with a history of severe depression in the past.
...
6. Having regard to the effluxion of time, does the injury (if any) remain work-related and if so to what extent?
The AMA Guides to the Evaluation of Disease and Injury Causation states that “there is therefore strong evidence that sitting at work is not associated with low back pain”. Certain chairs are more comfortable than others, but no particular seating or seating posture causes a back injury which results in chronic back pain. This patient had the spontaneous onset of the common clinical condition of non‑specific low back pain. This propensity to back pain was exacerbated by sitting and standing at work, but on cessation of the sitting and standing in the workplace there would be no further contribution to her chronic non-specific low back pain from her employment. She gave a detailed history that she was having difficulty standing at home, watching television at home, which required extended periods of sitting, and undertaking her household duties when the symptoms commenced in 2015.”[41]
[40]DCB 22
[41]DCB 28−29
Analysis of medical evidence
35The medical evidence, particularly from the treating practitioners, confirms the plaintiff’s own evidence that she developed symptoms in her low back performing her work duties in approximately April 2016. Having considered all of the medical evidence as discussed, I conclude that the medical evidence supports a conclusion that the plaintiff continues to have symptoms in her low back - and in fact has had symptoms in her low back for the last five years or so – referable to an ongoing work related aggravation of degenerative change in the lumbar spine.
36I have reached the conclusion that the plaintiff has an ongoing work related aggravation of degenerative change in her lumbar spine based on a consideration of all of the medical evidence. That evidence, with the one exception of Mr Simm, is that the medico-legal examiners accept that the plaintiff has suffered an injury to the lumbar spine by reason of the ergonomic setup of her workstation with the defendant. The injury is described as the aggravation of degenerative change (mechanical injury), and such diagnosis is arrived at by the medical examiners accepting the history provided by the plaintiff, together with a consideration of relevant radiology and the degenerative change described in the reports of the radiology.
37As mentioned, the one exception is Mr Simm. He unequivocally states that the plaintiff has chronic non-specific low back pain, which he says is extremely common across the spectrum of the general population and tends to worsen in the older age group.[42] Mr Simm’s opinion is apparently influenced by a view expressed in the AMA Guide (“the Guide”), but that is not in evidence before me, and I am not sure in what context the Guide refers to sitting at work and low back pain. As I understand Mr Simm’s report, he seems to suggest that because of the plaintiff’s age she had a propensity to back pain exacerbated by sitting and standing at work, but on cessation of the sitting and standing in the workplace there would be no further contribution to her chronic non-specific low back pain.[43]
[42]DCB 28
[43]DCB 29
38I do not accept Mr Simm’s opinion regarding the ongoing cause of the plaintiff’s back pain. Firstly, it is against the weight of the medical opinion. I prefer the opinions from Associate Professor Boffa, Mr Scott, Dr Rowe and Professor Teddy, namely that the plaintiff suffered the exacerbation of a degenerative lumbar spine condition due to the nature of her work duties with the defendant and the ergonomic setup of her workstation. Those opinions are also consistent with the plaintiff’s evidence that the symptoms came on at work and have persisted ever since then. In my view Mr Simm does not provide a path of reasoning as to why the symptoms have persisted since April 2016. He does not explain why it is that, despite the plaintiff’s symptoms commencing during her work, and despite cessation of sitting and standing in the workplace, she has continued to have ongoing symptoms. It appears from his report that he considers the plaintiff to have an underlying degenerative condition that explains her ongoing symptoms. I do not accept that opinion in light of the other evidence already discussed.
39Bearing in mind that I am dealing with a gateway provision, I am satisfied that the plaintiff suffered injury by way of the exacerbation of an underlying degenerative condition, due to the ergonomic setup of her workstation. Of course that does not mean that the workstation was inappropriate for the plaintiff, it simply means that I accept that performing administrative duties for a prolonged period in a seated position has caused injury by way of the aggravation of the underlying degenerative change.
40Pausing here, whilst the injury can be described as the aggravation of the underlying degenerative change, there is no evidence that that underlying degenerative change was symptomatic before the plaintiff became symptomatic at work. In other words, approaching the claim in accordance with the principles in Petkovski,[44] I am satisfied that it is the aggravation that has caused ongoing symptoms, impairment, and impairment consequences, for the plaintiff.
[44]Petkovski v Galletti [1994] 1 VR 436
41The primary issue of compensable injury is resolved in favour of the plaintiff. The next issue then becomes whether the plaintiff has ongoing impairment consequences either in respect to pain and suffering or loss of earning capacity which are “serious”.
The Claim for loss of earning capacity
42Dealing next with the impairment consequences, it is convenient to start with an analysis of the plaintiff’s claim that she has suffered a “serious injury” in respect to loss of earning capacity consequences. The starting point for this analysis is the question of whether the plaintiff could return to her pre-injury sedentary employment with the defendant, bearing in mind she has a long work history in essentially sedentary or administrative type employments.
43Commencing with the opinion of Mr Simm, he found the plaintiff to be pleasant and cooperative during physical examination.[45] While he diagnosed chronic non-specific low back pain that was exacerbated by sitting and standing at work (but not caused or contributed to by the work), he does accept the plaintiff has an ongoing back problem and, indeed, he noted that symptoms had worsened since they developed in 2015 and the plaintiff’s tolerances to sitting, standing, bending and undertaking physical activities had deteriorated to the current situation, where she was limited.[46] He noted no functional component and appears to have accepted that the plaintiff had the symptoms, as described by her, which included the need for the medication, as recorded in his report.[47] Mr Simm does not specifically discuss the plaintiff’s residual work capacity, but bearing mind his acceptance of how she had been affected by the injury as described by her, I conclude that the restrictions recorded by him would preclude the plaintiff from returning to her pre‑injury employment.
[45] DCB 27
[46]DCB 28
[47] DCB 26
44Mr Simm’s opinion – that is, acceptance of restricted physical tolerances – is consistent with other medical opinion and, in particular, the opinion from Dr Rowe. In his report of 4 November 2020, he stated that the plaintiff did not have a capacity for her pre‑injury employment because she was unable to perform duties that involved prolonged sitting or standing; walking long distances; repetitive bending and twisting; repetitive or heavy lifting; repetitive or forceful use of the left leg; driving longer distances. Dr Rowe said that―
“Her pre‑injury duties, while largely sedentary, involved prolonged sitting and standing. This is aggravating for her low back pain and she is no longer suitable for this type of work”.[48]
[48]PCB 44
45In fact, not only did Dr Rowe state the plaintiff was unfit for her pre‑injury employment, he also stated that the long-term impairment in her lower back and left leg precluded her from obtaining and retraining into employment in any capacity.[49]
[49]PCB 45
46Leaving to one side the issue of ongoing compensable injury, the opinion of Dr Rowe – that is, the restrictions that he places on the plaintiff’s ability to sit and stand – is similar to the opinion expressed by Mr Simm.
47The only other recent medical opinion is that from Professor Teddy, but he does not specifically address work capacity. He does, however, note that the plaintiff had experienced “no real improvement in her condition” and that she would benefit from a referral to an experienced pain management clinician and may benefit from a planned multi-disciplinary pain management program. He goes on to say that the plaintiff will be subject to back pain of a variable severity and frequency for the foreseeable future.[50]
[50]DCB 33
48In her affidavits, the plaintiff sets out how she attempted some voluntary work at St Vincent de Paul during 2019, but even a few hours on a couple of days a week aggravated her symptoms because of prolonged standing and sitting.[51]
[51]PCB 7 and 14
49It was not directly put to the plaintiff in cross-examination that she is physically capable of returning to her pre-injury employment with the defendant. The medical evidence, as discussed, and the plaintiff’s own evidence, which I accept, is that she cannot return to her pre-injury employment.
50The inability to return to pre-injury employment is, in my opinion, a “very considerable” loss of earning capacity consequence for the purposes of s325(2)(c)(ii) of the Act, and therefore the plaintiff satisfies that part of the statutory provision.
51Next, the issue is whether the plaintiff suffers the requisite 40 percent loss of earning capacity as per the statutory formula contained in s325(2)(e), (f) and (g) of the Act.
52The plaintiff has a long and varied work history, but all of it has been in sedentary type employment. In cross-examination, it was put to her that if she was offered a role in administration which allowed her to work at an ergonomic work station which suited her posture and size and so on, and if such a role allowed her to take breaks every so often, to stretch and so on, that she would be able to undertake that work. The plaintiff disagreed.[52] I accept her evidence for a number of reasons. Firstly, the theoretical job put to her does not necessarily mean that such a job exists, namely one with an ergonomic work station, ability to vary posture and the like. But even if it does, consistent with the medical evidence, I accept that the plaintiff cannot sit or stand for lengthy periods without provoking her pain so even the ability to sit or stand at work will not achieve much.
[52]T55, L21
53It was further put to the plaintiff that she could undertake roles performing either data entry, secretarial, receptionist, personal assistant, payroll clerk, call centre operator and call centre manager. In respect to those roles and whether she could perform them, she said “definitely not”.[53]
[53]T55
54So as to satisfy the statutory formula, the measure of the plaintiff’s claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income that the worker was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).
55It is agreed that the plaintiff’s “without injury earnings” is either $62,747 gross, being her gross earnings for the financial year ended 30 June 2015 (60 percent of that figure is $37,648), or $68,032 gross, being the figure for a comparative employee employed by the defendant for the financial year ended 30 June 2018 (60 percent of that figure is $40,819).
56The plaintiff’s primary submission is that the severity of her back symptoms and restrictions, in particular when sitting and standing for more than short periods of time, is such that she now cannot be a reliable member of the workforce,[54] and as such, she has no “after injury earnings” capacity. I accept that submission. It is consistent with the medical evidence and consistent with the plaintiff’s own evidence. As already mentioned, even Mr Simm accepts the plaintiff has limited tolerance for activities such as sitting and standing.
[54]T102, L29
57Pausing here, a review of the whole of the evidence, including the transcript, reinforces my opinion that the defendant’s primary submission in this case was in respect to causation and, once a conclusion is reached that the plaintiff did suffer compensable injury and continues to suffer the consequences of compensable injury, then the medical evidence really is all one way, namely that the plaintiff is limited in her ability to sit, stand and so forth, which impacts on her ability to do sedentary employment and means that for practical purposes, bearing in mind her age and work history, she really has no capacity now for “suitable employment”. She has no “with injury” capacity for paid employment.
58Accordingly, I conclude that the plaintiff has no residual capacity for “suitable employment”.
59For completeness, the plaintiff commenced this application by providing a document headed “Outline of plaintiff’s economic loss submissions”. In that document, the plaintiff noted that if she was fit to work 30 hours per week in the position of either secretary, personal assistant or debt collector, being jobs identified in a transferable skills analysis report of IPAR dated 2 November 2017,[55] all of which attract an hourly rate of $25.62, then accepting that hourly rate and a capacity of 30 hours per week would still see the plaintiff satisfy the statutory test. Of course, no specific medical opinion is in evidence that the plaintiff can work 30 hours per week. The closest to that was the opinion expressed by Dr Le Leu in the report dated 18 November 2016 where the doctor opined that in respect to a return to work, the plaintiff “would need light duties at four hours a day three days a week. She would need restrictions”.[56] The hours of light duties, as floated by Dr Le Leu in November 2016, are well below 30 hours and would also have the plaintiff well below the statutory threshold. At the end of the day, it is a moot point because, at the risk of repetition, the restrictions that the plaintiff is now subjected to mean that, in my opinion, she is unfit for any suitable employment.
[55]And ultimately tendered by the defendant
[56]PCB 95
Pain and suffering consequences
60Based on the conclusions I have formed in respect to work capacity, it is, strictly speaking, not necessary to deal with pain and suffering consequences.[57] But for completeness, I am of the opinion that the plaintiff has suffered a “very considerable” pain and suffering consequence. Relevant to that determination are the following factors―
(a) the plaintiff has had constant, unremitting and fluctuating low back pain since the onset of symptoms in 2016 and no doctor suggests there will be a resolution of symptoms;
(b) she has required the regular and ongoing use of strong painkilling medication, including Panadeine Forte;
(c) she has been unable to return to her pre-injury employment, which was a source of pleasure to her and, in her words, she enjoyed her job, was proud of her work record with the defendant and intended to work through until at least age 70;[58]
(d) interference with a range of day-to-day activities and hobbies such as baking, exercise, driving and domestic duties. While the plaintiff is still able to engage in those activities, I accept her evidence that she does so in a restricted manner, or with pain, and so while there is no one “big ticket” pain and suffering consequence, the limitation for day-to-day activity is a relevant consequence.
[57]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[58]PCB 11
61Accordingly, when all of those matters are taken into account, I conclude that the plaintiff has suffered a “very considerable” pain and suffering consequence, regardless of my conclusions regarding loss of earnings consequences.
Conclusion
62For the reasons set out, I conclude that the plaintiff suffers the ongoing impairment consequences of compensable injury, by way of aggravation of lumbar degeneration.
63I accept that the ongoing consequences preclude the plaintiff from returning to employment. I accept that she has suffered a “very considerable” loss of earning capacity consequence and, in addition, that she has suffered a “very considerable” pain and suffering consequence.
64Leave shall be granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages.
65I shall hear from the parties as to the question of costs.
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