Lazar v Victorian WorkCover Authority
[2024] VCC 1839
•22 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-00269
| SIMONA CORNELIA LAZAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 24 June 2024 | |
DATE OF JUDGMENT: | 22 November 2024 | |
CASE MAY BE CITED AS: | Lazar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1839 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity – residual capacity for employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Humphries & Anor v Poljak [1992] 2 VR 129; Acir v Frosster Pty Ltd [2009] VSC 454; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Advanced Wire and Cable Pty Ltd and Anor v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to commence proceedings for damages for pain and suffering and loss of earnings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Ms S Dawson | Slater and Gordon |
| For the Defendant | Ms C L Alden | TG Legal + Technology |
HIS HONOUR:
1The plaintiff, Simona Lazar, was employed at Central Healthcare Services[1] between June 2018 to April 2020 as an inward goods person. The role involved manual handling of boxes of medication and pharmaceutical goods.
[1]The plaintiff was employed by ProQuest Pty Ltd, who entered into a labour-hire arrangement with Central Healthcare Services
2It is not in dispute that:
(a) on 2 April 2020, Ms Lazar sustained injury to her spine whilst stretching and lunging to reach a box located in the middle of a pallet;[2]
(b) she no longer has capacity for her pre-injury employment.[3]
[2]The VWA concede the plaintiff’s employment caused a temporary aggravation of an underlying back condition.
[3] Transcript (“T”) 68
3Now 54 years of age, Ms Lazar seeks leave to bring common law proceedings pursuant to ss335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“Act”), under subparagraph (a) of the relevant definition of “serious injury” for pain and suffering and loss of earnings consequences, being for the permanent serious impairment or loss of a body function.
4The body function relied upon is the lumbar spine.
5There was no credit submission made by the Victorian WorkCover Authority (“VWA”). I accept Ms Lazar’s evidence. She was candid about her total medical condition, continually made concessions as to her capacity, scope of work skills, and the extent of her incapacity because of a previous neck condition, all of which reflected well on her credibility as a witness. Consequently, I am able to give significant weight to her evidence of the difficulties she faces due to her low back symptoms.
6I am not troubled by the absence of any corroborative evidence from Ms Lazar’s husband or daughters. I accept Ms Lazar as a witness of truth, and there was no evidence that she had capacity to perform her pre-injury duties or otherwise, which would invoke the principles in Jones v Dunkel.[4]
[4](1959) 101 CLR 298
7The case principally turned on the question of Ms Lazar’s capacity for residual employment, and the extent to which she had established impairment consequences from the injury to her low back, as opposed to her previous injury to the cervical spine.[5]
[5]See discussion in Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 at paragraphs [110]-[113]
8For a person whose life had already been diminished by a serious neck injury, my task was to identify the further disabilities resulting from her back injury in terms of the deprivation of her residual capacity to engage in employment, recreational activities, social life and her activities of daily living.
9The VWA framed the issues at trial in these terms:
(a) whether Ms Lazar is suffering any ongoing compensable injury;
(b) disentanglement of Ms Lazar’s other medical conditions;
(c) even if Ms Lazar was to discharge her burden of proof in relation to identifying the consequences that flow from any aggravation-type injury to her low back, whether those additional consequences are “serious”; and
(d) whether Ms Lazar is capable of earning more than 60 per cent in suitable employment.
Principles
10Ms Lazar bears the onus of demonstrating that her impairment is permanent, and that the consequences are “serious”.
11She must establish, by reference to the consequences to her, with respect to pain and suffering and loss of earnings, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being at least “very considerable” and certainly more than “significant or marked”,[6] in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.
[6] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
12In order to be granted leave to commence proceedings for damages for economic loss, I must also be satisfied that she has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in ss325(2)(e), (f) and (g) of the Act.
13I am required to assess all the evidence that most fairly reflects Ms Lazar’s earning capacity as at the date of the hearing. The question to be answered in the context of s325(2)(f) is: what was the worker’s ability to earn money in the workforce, taking into account her pre-injury state of health, level of employment and career opportunities at the time of injury?[7]
[7] Acir v Frosster Pty Ltd [2009] VSC 454 (“Acir”)
Background
14Ms Lazar was born in Romania and emigrated to Australia with her parents in 1980. She completed Year 10 at school before starting a family with her husband. They have two adult daughters.
15Her work history is overwhelmingly in manual labour-type roles, including:
(a) between 2008 and 2011, casual “kitting” work, which involved activating mobile phone SIM cards for various telecommunication companies;
(b) between 2011 and 2015, in a manual role as a machine operator and quality controller at Aspen Pharmaceuticals;
(c) between June 2016 and May 2018, in another manual role as a machine operator and packer at Mondelez Australia (Cadbury). She ceased work with Mondelez because of neck pain, and looked for a role that was less physically demanding; and
(d) for four weeks part time at Meals on Wheels with Casey Council, Keysborough, packing food deliveries, immediately prior to her employment at Central Healthcare Services.
16Ms Lazar has a number of pre-existing medical conditions, including:
(a) carpal tunnel syndrome in both wrists, involving release surgery on her right wrist;
(b) an injury to her cervical spine in the course of her employment with Mondelez. A claim in relation to this injury was settled for a modest sum following the issue of an originating motion seeking leave to commence proceedings for pain and suffering damages at common law.
17She conceded at trial that there was overlap between the consequences of the impairment of her cervical spine and her lumbar spine, which requires findings as to her injury and level of impairment immediately prior to the incident on 2 April 2020.
Previous injury to the cervical spine
18In January 2016, Ms Lazar commenced employment four days per week at Cadbury as a machine operator and packer in Ringwood, which involved significant manual handling duties packing and stacking boxes of chocolate, and loading pallets in a process work-type role. She developed worsening pain in her right shoulder and neck over time, eventually ceasing work in June 2018.
19Although Ms Lazar took on a less physical role for a few weeks doing part-time delivery duties with Meals on Wheels, her pain only improved slightly. She consulted her general practitioner, Dr Concepcion, on 18 September 2018, who referred her for an MRI scan of her neck.
20The MRI scan on 20 September 2018 showed extensive degeneration at C4-5 and C5-6 levels, with disc extrusion and possible spinal cord compression at C6 and C7. She was prescribed anti-inflammatory medication (Celebrex) daily for a time.
21Under the guidance of neurosurgeon, Mr Chris Xenos, from October 2018, the treatment to her neck was conservative. A further MRI scan in July 2020 confirmed the previous findings. In Mr Xenos’ opinion, Ms Lazar has work-related mechanical or muscular pain, aggravated with lifting at work.[8]
[8] Plaintiff’s Court Book (“PCB”) 89, report of Mr Chris Xenos dated 7 July 2020
22Her neck and shoulder pain is constant, with referred pain into her arms intermittent.
23Professor Richard Bittar, neurosurgeon, assessed Ms Lazar’s neck in December 2022,[9] and diagnosed aggravation of cervical spondylosis with neck pain, bilateral arm pain and cervicogenic headaches with possible ulnar neuropathy as a result of her employment with Cadbury. In Professor Bittar’s opinion, she had capacity to remain at work in a suitable role despite being incapacitated by her neck injury at Cadbury, and was employed in such a role at Central Healthcare Services before injuring her low back. In his view, her prognosis was guarded due to chronic pain.[10]
[9] Defendant’s Court Book (“DCB”) 27
[10]See report dated 12 December 2022, DCB 27
24Mr Rafe Asaid, orthopaedic surgeon, examined Ms Lazar in January 2023[11] and diagnosed aggravation of cervical spondylosis, with multilevel stenosis related to her employment with Cadbury, with poor prognosis. He found Ms Lazar had no capacity to perform her pre-injury duties at Cadbury due to her neck pain for the foreseeable future, without capacity for suitable employment.
[11] DCB 34
25I prefer the opinion of Professor Bittar, as by in or about June 2018, Ms Lazar had returned to full-time employment in a role involving some physical work duties and was able to continue in this role until her low back injury in April 2020.
26In cross examination, Ms Lazar freely conceded that the problems with her neck, shoulders and upper limbs never really went away after working with Cadbury/Mondelez.
27With absolute candour, Ms Lazar agreed her ongoing problems include:
(a) constant pain in the neck with some referred pain and numbness on an intermittent basis. The pain is like a constant burning sensation, generally worse after activity and in the colder weather;
(b) headaches on a weekly basis;
(c) the pain increases with neck movements, maintaining the neck in one posture for periods of time, and after she has used her arms to push or pull at above shoulder height. She currently rates the pain as being 5/10 on average, increasing to 9/10 at times, including with activity such as pushing or pulling or reaching above shoulder height. Day-to-day activity around the house, including repetitive movements dressing and attending to her personal care, are problematic due to her neck pain;[12]
(d) the need for prescription medication Palaxia and Celebrex, together with Panadol for headaches, to control her pain;
(e) it affects her sleep most nights, and driving is difficult;
(f) she requires assistance from her family due to her pain, and many tasks take her longer to perform;
(g) she continues to consult her general practitioner and physiotherapist for her neck pain; and
(h) it continues to impact her social, domestic and recreational activities very significantly and causes her emotional distress. She has ceased serving communion at church, running and going to the gym because of her neck injury.
[12] T22-24
28I accept Mr Harrison’s submission that when one considers her comorbidities,[13] Ms Lazar’s efforts to continue in full-time employment prior to her back injury bespeaks a person who has continued to work while she was able to do so.
[13] PCB 100
Employment and injury at Central Healthcare Services Pty Ltd
29Ms Lazar was employed on a casual basis by ProQuest Recruitment, who placed her to work with Central Healthcare Services Pty Ltd as an inward goods person between June 2018 and April 2020. She worked at the Dandenong South location of Central Healthcare Services. Her duties included receiving orders, unloading and checking pallets, picking and packing stock, filling, moving and stacking boxes. Her hours varied between 37.5 and 50 hours per week, depending on how busy it was.
30She was able to perform this role notwithstanding previous right hip and lower back pain in 2010, and her significant ongoing neck and right shoulder pain and physical restrictions as a result of her employment with Cadbury.
31Ms Lazar reported the incident on 2 April 2020, but managed to complete her duties that day. Despite resting over the weekend, her lower back pain persisted. She worked until around lunchtime on 7 April 2020, but by that time, her low back pain had increased and was shooting down her left leg. She attended and reported her symptoms to Dr Sarah Concepcion, general practitioner, at the Dandenong Super Clinic.[14] She has not worked since.
[14]Clinical attendance notes at PCB 117-119
32Dr Concepcion referred Ms Lazar for radiological scans and specialist opinion. Another general practitioner, Dr Martin Hill, prescribed Tramadol and Valium, issued a WorkCover Certificate of Capacity for a period of time, and otherwise recommended physiotherapy, heat packs and Epsom bath salts.
33On 30 April 2020, Ms Lazar commenced seeing physiotherapist, Mr James Serong, who, by that stage, reported that her overall condition was “improving despite some fluctuations in pain”.[15] He commenced her on basic lumbar mobility exercise and some body weight functional exercises.
[15] PCB 95
34On 9 June 2020, Ms Lazar underwent a CT scan of her lumbosacral spine upon referral of Dr Concepcion. The CT scan showed:
“At L4/5, mild central canal stenosis, with minor compromise to traversing left L5 nerve root. If there is continuing clinical concern, CT guided left L5 nerve root injection is suggested. Mild degenerative changes and mild scoliosis as described.”[16]
[16] PCB 25
35Dr Concepcion referred Ms Lazar to see neurosurgeon, Mr Chris Xenos. Ms Lazar had previously seen Mr Xenos for her pre-existing cervical spondylosis and for possible carpal tunnel syndrome. In July 2020, Mr Xenos reported to the general practitioner:
“As far as the new problem of a lower back complaint, predominantly it is mechanical or muscular, but it has become aggravated with lifting at work, so technically it is a work related event, and you did perform a CT … which shows only mild degenerate changes, and I must say I am somewhat under impressed with stenosis at L4/5. … .”[17]
[17] Report of Mr Chris Xenos dated 7 July 2020, PCB 88-89
36Mr Xenos prescribed Ms Lazar prednisolone and referred her for an MRI scan.
37A week later, Ms Lazar had a follow-up appointment with Mr Xenos, who discussed her lumbar spine MRI results:
“… her L3/4 and L4/5 discs are slightly degenerate, there is no huge disc prolapse, stenosis or instability at any level, but there seems to be a far lateral left L4/5 foraminal bulge, it might be just catching the L4 nerve as it exits, to account for her left leg pain be it atypical. Certainly on that scan there is nothing to operate on, but it does show some degeneration, and possibly some nerve foramen compression at L4.”[18]
[18] Report of Mr Chris Xenos dated 14 July 2020, PCB 90
38Mr Xenos recommended conservative treatment of heat, massage and physiotherapy; however, if her radicular leg symptoms worsen or remain the same, he recommended the use of an initial CT-guided left L4 nerve root sheath injection, and later possibly a CT-guided L4- 5 epidural injection.
39In August 2020, Ms Lazar lodged a WorkCover claim. The claim was accepted, and she remains in receipt of weekly payments, including medical and like expenses for her low back.[19]
[19] Affidavit of the plaintiff sworn 12 September 2023 at paragraph [45]
40In December 2020, Ms Lazar commenced chiropractic treatment with Dr Gabrielle Tymms from Complete Chiropractic Berwick. She attended initially twice per week, then reduced to once per week. She eventually ceased chiropractic treatment upon the advice of Dr Meena Mittal, pain physician and specialist anaesthetist.
41Ms Lazar has carpal tunnel syndrome of a mild degree, which required release surgery to her right wrist on 20 April 2021. Although she did not require an operation on her left wrist, it still causes some pain.
42On 17 June 2021, Ms Lazar underwent a lumbosacral spine scan with functional views and an isotope bone scan of her lumbopelvic region. These showed:
“… Moderate degenerative features are seen at the vertebral body endplates with some limited degenerative sclerosis in the mid and lower lumbar facet joints. Only limited movement is seen on the functional views without evidence of significant instability.
…
… Mild-moderately active degenerative change in the left L5-S1 facet joint. No further significant abnormal finding is seen.”[20]
[20] PCB 27
43Dr Hill referred Ms Lazar to Dr Mittal. In her June 2021 report, Dr Mittal opined that the pain in the right lower limb was not originating from the lumbar spine injury.[21]
[21] Report of Dr Meena Mittal dated 29 June 2021, PCB 30
44In her report dated 22 July 2021, Dr Mittal noted that there was severe restriction of the forward flexion and extension of Ms Lazar’s lumbar spine. Dr Mittal reviewed the weightbearing MRI scan which showed a disc bulge at L4-5 narrowing the L4‑5 foramen around the L4 nerve root. She also reviewed the bone scan from 17 June 2021. Dr Mittal opined that it was a facet joint arthropathy rather than a nerve compression. She did not recommend surgical intervention, but a medial branch block if the L4 nerve sheath injection does not work.
45Dr Mittal has performed the following procedures on Ms Lazar to manage her low back pain:
(a) bilateral L4-5 and L5-S1 medial branch block on 31 August 2021;[22]
(b) bilateral L4-5 and L5-S1 medial branch radiofrequency neurotomy on 26 October 2021;[23]
(c) bilateral sacroiliac injection on 5 April 2022;[24] and
(d) right sacroiliac joint radiofrequency denervation on 2 August 2022.[25]
[22] Operation report of Dr Meena Mittal dated 31 August 2021, PCB 37
[23] Operation report of Dr Meena Mittal dated 26 October 2021, PCB 40
[24] Operation report of Dr Meena Mittal dated 5 April 2022
[25] Operation report of Dr Meena Mittal dated 2 August 2022
46Upon post-operative review on 16 September 2022, Dr Mittal prescribed opioid-based pain medication to improve her level of function and engage in physiotherapy. She stated:
“From my perspective, Simona’s symptoms are now stable and I do not anticipate a major change to her symptoms from here onwards. She would need to manage her treatment with the assistance of medications and physical therapy, but there is no further interventional pain management. She is not appropriate for left-sided sacroiliac joint radiofrequency neurotomy given her negative response.”[26]
[26] PCB 50
47Her low back pain persisted. More recently, Dr Mittal performed a left L3, L4, L5‑S1 medial branch radiofrequency neurotomy in August 2023, and a right sacroiliac joint block in February 2024. Other treatment included physiotherapy from James Sarong, hydrotherapy and home exercises.
48Ms Lazar’s WorkCover claim for her low back injury was accepted in August 2020. She remains in receipt of weekly payments of compensation, together with medical and like expenses.
What is the nature of the injury to the lumber spine?
49The VWA concede there was an initial aggravation to Ms Lazar’s underlying degeneration of the spine, in the context of mild degenerative lumbar disc disease reported on a CT scan 14 August 2013, which showed:
“… Mild degenerative lumbar disc disease … most prominent at L5/S1, where there is possible compromise of the exiting left L5 nerve root in the neural foramen secondary to disc bulge and facet degeneration.”[27]
[27]DCB 16
50At L4-5, the 2013 CT scan also showed mild broad-based disc bulge and mild bilateral facet joint degeneration, causing mild left neural foraminal stenosis.
51A CT scan of the lumbosacral spine on 9 June 2020 showed extensive degenerative changes with an L4-5 central/left paracentral disc bulge contacting and posteriorly displacing but not compressing the traversing L5 nerve root.
52Until the April 2020 incident, Ms Lazar’s underlying condition was essentially asymptomatic. There is no evidence that she was experiencing impairment or incapacity as a result of this condition.
53As set out above, Ms Lazar received very significant pain management treatment from Dr Meena Mittal, pain specialist, from 2 June 2021. An MRI scan of the lumbar spine on 24 June 2021 showed L4-5 disc protrusion, impinging on the left L4 nerve root. Dr Mittal administered bilateral nerve blocking radiofrequency injections into the nerves of Ms Lazar’s low back at L4-5 and L5-S1 in August and October 2021. Ms Lazar was prescribed strong prescription pain medication during this period, including Nortriptyline for chronic pain, Celebrex for acute pain and, more recently, Gabapentin. Specifically for her low back pain she has also taken Norflex and Tapentadol, and received physiotherapy from Mr Justin Moore and Mr Mo Hussaini.
54Ms Lazar relies on the opinions of Doctors Hill, Mittal and Horsley.
55Dr Martin Hill, general practitioner, reported in May 2024[28] that Ms Lazar’s pain is caused by an L4-5 disc bulge impinging on the left L4 nerve root, which is expected to improve with time and conservative management. Nevertheless, he certified her as having no capacity for work and being unlikely to have capacity for work in the foreseeable future. He previously reported that Ms Lazar has no capacity for her pre-injury duties, no capacity for work generally, and that it was uncertain as to whether she will have capacity to undertake work in the future.[29]
[28]PCB 84
[29] Report of Dr Martin Hill dated 7 April 2021, PCB 62
56Her primary treater Dr Mittal’s opinion is that the low back pain is secondary to myofascial spasm, being a component of facetogenic pain, bilateral sacroiliac joint pain and lower limb pain consistent with left L5 nerve root irritation. The condition is stable, permanent and the prognosis guarded. In her view, Ms Lazar requires pain psychology and pain physiotherapy, geared towards coping with the existing levels of pain, as opposed to making any significant change to her overall levels of pain. Dr Mittal believes that Ms Lazar’s back condition has significantly impacted her capacity for work, and that given the extent of her pain and dysfunction, she is unable to return to her pre-injury duties or engage in an alternative occupation due to the severity of her pain. [30]
[30] PCB 60, report dated 13 May 2024
57In April 2024, Dr Robyn Horsley, occupational physician, diagnosed mechanical back pain with no radicular peripheral features. She assessed Ms Lazar as having no current work capacity due to her poor functional tolerances and pain focus.
58Ms Lazar was examined by occupational physician, Dr Kah Heng Lee, in January 2024 at the request of the defendant. Dr Lee diagnosed chronic musculoskeletal lower back pain which has become complicated by non-anatomical/non-physical features. In his opinion, her musculoskeletal lower back pain was caused by her bending and lifting during her employment in 2020, with some contribution from age-related and genetic spondylosis. With a poor to guarded long-term prognosis, he does not consider that the work-related contribution has resolved or that it will resolve in the future.
59In his view, Ms Lazar is permanently unfit for her pre-injury duties as an inwards goods store person; but, with restrictions, residual capacity for suitable employment on a full-time basis. The restrictions noted were:
·“No prolonged sitting, standing, or walking. Must have the ability to change positions regularly, for example with a sit/stand desk. Sitting, standing, and walking for up to 20 minutes at a time is acceptable.
·No bending or twisting of back.
·No lifting, pushing, or pulling more than 10 kg.
·No lifting from the ground.
·No whole-body vibration work.”[31]
[31] DCB 50
60I place limited weight on Dr Lee’s opinion as to residual capacity for full-time employment, as it seems based, at least in part, on inconsistent presentation by Ms Lazar, in circumstances where I accept her reliability as a witness.
61In April 2024, orthopaedic surgeon, Dr Terrence Saxby, diagnosed lumbar spondylosis or degenerate disease of the lumbar spine. In his opinion, there was evidence of pre-existing degenerative change, although this was not symptomatic at the date of injury. In his view, the “amount of force and circumstances of the injury” supported his opinion that there was a temporary aggravation of her symptoms with no permanent damage. Despite the fact that before April 2020 Ms Lazar was working full time without symptoms in her low back, but is now permanently incapacitated for her pre-injury role, in Dr Saxby’s opinion, there was no permanent deterioration of the condition due to the work injury, and her outcome would have been the same regardless.
62Dr Saxby does not explain how Ms Lazar’s asymptomatic low back condition first recorded in a CT scan in 2013 was rendered symptomatic other than by reference to the work insult; or address the issue of whether, but for the incident, the asymptomatic condition may have continued through to the present day. Dr Saxby was not provided with the 2013 scan. In the absence of an adequate path of reasoning as to how an asymptomatic back which suddenly deteriorated due to an incident at work and has never recovered might have otherwise progressed, I place limited weight on this opinion, and prefer the views of the treating doctors as to causation.
63Dr Saxby believes Ms Lazar has capacity for suitable employment with restrictions, including avoiding repetitive lifting and lifting more than 10 kilograms, at “perhaps 16 to 20 hours per week”, with the possibility of a return to full-time work in six to twelve months. Dr Saxby did not note any obvious signs of abnormal illness behaviour.
64Upon consideration of all of the evidence, I am satisfied that Ms Lazar suffers from an ongoing compensable injury to her lumbar spine, in the nature of aggravation of underlying spondylosis at L4-5 and L5-S1 levels, impinging on the left L4 and L5 nerve roots.
Loss of earnings
65Section 325 is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.[32]
[32] Acir (supra) at paragraph [171]
66Any reliance on specific figures is consistent with an assessment of actual loss of earnings rather than the task of the Court in an application of this type to assess a present and future impairment of earning capacity.
67It is not in dispute that Ms Lazar no longer has capacity to perform her pre-injury employment. Those duties involved receiving orders, picking and packing stock, quality control, filing, moving and stacking boxes.
68Prior to the injury to her low back on 2 April 2020, Ms Lazar was working between 38 and 50 hours per week, which is the best evidence as to her pre-injury capacity.
69Ms Lazar’s pre-injury earning capacity should be assessed on the basis of the work that she was performing at the date of injury.[33]
[33] Guppy v Victorian WorkCover Authority [2010] VSCA 164 at paragraph [38]
70Based on “without injury” earnings of $51,012 per year, her pre-injury average weekly earnings of $981 were agreed as most fairly reflecting her earning capacity without injury. Sixty per cent of Ms Lazar’s “without injury” earnings was agreed at $589.
71For the reasons which follow, I accept she has no residual capacity for employment.
72Dr Hill is aware of Ms Lazar’s comorbidities and continues to provide WorkCover certificates on the basis of her low back injury. Dr Hill has been treating Ms Lazar since she was referred to him by Dr Concepcion in early April 2020. I accept Mr Harrison’s submission that this is a matter of very considerable significance.
73Dr Mittal says her pain will preclude her from all forms of work.
74Likewise, Dr Horsley does not believe Ms Lazar has any realistic or reliable capacity for work due to her current functional tolerances.[34]
[34] PCB 115
75I accept the opinions of Ms Lazar’s treating doctors, in particular. Each has had the opportunity to observe her over time, and in the case of Ms Mittal, employ a wide variety of invasive treatments with a view to increasing her level of function, without success. These opinions are to be preferred over consultants who have examined Ms Lazar on a single occasion.
76Ms Lazar does have skills which she has exercised in the employment marketplace over time including some computer and administrative skills, typing, and completion of a Certificate IV in medical reception many years ago. In isolation, she agreed that she could perform many of the duties involved in various roles identified by the defendant in a Vocational Assessment and Labour Market Analysis Report dated 28 March 2024 prepared by occupational therapist, Hayley Morey, of CoWork.
77Ms Morey identifies potentially suitable roles as an inward goods clerk, machine operator, light product assembler, receptionist, scheduler, administration assistant – medical, warehouse administrator and support worker.
78It is not in dispute that Ms Lazar is not able to return to her previous position as a store person, which involves many of the duties of a warehouse manager. The role of warehouse manager, administrator or inward goods clerk involves walking and standing to count and organise incoming stock, with desk-based duties to reconcile requisitions, update inventory and stock location records, establishing and coordinating the operating procedures. Ms Lazar cannot unload materials, cargo or equipment, or operate either vehicles or material moving equipment, which are typical duties required of the role.[35] Any significant manual handling duties, and requirements of constant sitting and walking are inconsistent with her accepted level of incapacity. The evidence establishes she is precluded from the roles of product assembler, inward goods clerk and warehouse administrator.
[35] DCB 107
79If Ms Lazar has retained capacity for suitable employment, based on the opinions of Dr Horsley and Dr Saxby, I find that it is no more than 15 hours, being less than 40 per cent of her demonstrated pre-injury capacity where she worked between 38 and 50 hours per week in a moderately physical role. I reject Dr Lee and Dr Saxby’s somewhat optimistic views that Ms Lazar might return to full-time employment.
80In rejecting the possibility of anywhere approaching full-time capacity for suitable employment, I rely upon Ms Lazar’s evidence that:
(a) she would not be able to sit and stand and walk around a factory constantly;
(b) any role which required her to sit would be beyond her, even if there were regular opportunities to stand and walk. Her low back condition would preclude her from full-time roles which involve predominantly sitting or desk-based duties, such as receptionist, administrative assistant or scheduler;
(c) the physical requirements of other roles would be beyond her;
(d) although adequate, she lacks confidence in her English skills; and
(e) she has never been offered computer training or retraining.
81Based upon residual capacity of 15 hours per week, her notional “after injury” earnings as a warehouse administrator of $44.94 per hour[36] ($674.10 per week) would result in Ms Lazar failing to establish a permanent loss of earning capacity of greater than 40 per cent.
[36] $88,816 gross per annum, DCB 107
82Putting to one side her physical restrictions which would likely preclude her from this role, it appears to be beyond Ms Lazar’s level of experience and previous work history. She has never performed such a role in the past. Her previous employment as a process worker and store person involved different duties, and paid significantly less. She herself stated she did not think she would be able to perform this role, and had never applied for one in the past.[37] I accept this evidence as a reasonable assessment of the capacity of a worker who had performed relatively low-level manual tasks in casual roles for many years.
[37] T 53
83A precise monetary comparison based upon actual earnings is not required by the statute, nor is it appropriate in the present case. On the evidence overall, I find Ms Lazar has suffered a greater than 40 per cent loss of earning capacity.
84I grant Ms Lazar leave to commence common law proceedings for damages for loss of earnings. In accordance with the principles in Advanced Wire Cable Pty Ltd and Anor v Abdulle,[38] she is also entitled to a certificate for pain and suffering.
[38][2009] VSCA 170
Impairment consequences of injury to the lumbar spine
85Ms Lazar readily accepts that there is an overlap in the consequences between her neck and back. This was addressed in her affidavit material, and is not a credit issue. The consequences relied upon in this application include:
(a) persisting and constant pain across the lower back which often extends to her right leg. Although she has other issues, her low back pain is the worst, and has resulted in cessation of employment. This has caused her distress and loss of dignity;
(b) on some days, she in so much pain with her back that she is unable to leave the house;
(c) the need for very significant, invasive and painful treatment of her low back over time, which is indicative of her level of ongoing pain;
(d) standing or sitting for too long causes back pain;
(e) the pain in her lower back is aggravated by toileting;
(f) she has now had to cease driving completely;
(g) although her neck injury prevents her from distributing communion, until her back injury, Ms Lazar was still able to stand for an hour-and-a-half and prepare communion with her husband at her church for 1000 people. This impact is significant for her;
(h) her sleep, activities of daily living, including her domestic, recreational and social life – already very significantly and permanently impacted by her neck pain – are all further affected by her back condition; and
(i) the injury to her back has made things much worse and even more difficult for her to enjoy day-to-day life.
86Ms Lazar has demonstrated that she is somewhat of a stoic, continuing in full-time employment despite her neck injury. For a person already compromised by a serious neck injury,[39] the combination of the consequences referred to above are “more than very considerable”.
[39] Poholke v Goldacres Trading Pty Ltd (supra) at paragraphs [110]-[113]
Conclusion
87I am satisfied as to the following:
(a) Ms Lazar suffered injury to her low back in the course of her employment with ProQuest in an incident on or about 2 April 2020;
(b) as at the date of the hearing, she has suffered a greater than 40 per cent loss of earning capacity;
(c) the loss of earning consequences are “at least very considerable”; and
(d) she will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
88I grant leave to Ms Lazar to commence proceedings for damages for pain and suffering and loss of earnings.
89I will hear the parties on costs.
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