Le v Victorian WorkCover Authority
[2017] VCC 920
•21 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02762
| SHARON LE | Plaintiff | |
| v | ||
| VICTORIAN WORKCOVER AUTHORITY | Defendant | |
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 June 2017 | |
DATE OF JUDGMENT: | 21 July 2017 | |
CASE MAY BE CITED AS: | Le v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 920 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back - pain and suffering – pecuniary loss – credit - whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Acir v Frosster [2009] VSC 454; Meadows v Lichmore [2013] VSCA 201 Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; The Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Verduci Lawyers |
| For the Defendant | Mr J Batten | Russell Kennedy |
HER HONOUR:
Preliminary
1 Ms Le is a 35 year old woman, who claims to have suffered an injury to her lower back in December 2013, whilst working as a cleaner for Dudley’s Corporation Pty Ltd. She claims that, as a consequence of her ongoing lower back pain, she is permanently restricted in the work she can now perform.
2 The defendant accepts that Ms Le suffered this injury at work, but disputes the claim on the basis that Ms Le is not a credible witness. It further alleges that she has intentionally overstated the significance of any lower back pain she suffers.
3 Ms Le claims that her lower back injury has impaired the functioning of her spine, causing serious consequences to her, in respect of both pecuniary loss and pain and suffering. In order for Ms Le to be entitled to claim common law damages for this injury, the impairment to her spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
4 Ms Le and her general practitioner, Dr John Green, were called to give evidence and were cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that the consequences to Ms Le from her lower back injury, both in respect of pecuniary loss and pain and suffering, can be described as at least “very considerable”.
Ms Le’s life before she suffered her lower back injury in December 2013
6 Ms Le has undoubtedly had a very difficult life. She suffered dyslexia as a child, and left school during Year 9, aged approximately 15 years. Ms Le is unable to read.
7 After leaving school, Ms Le became involved in the drug scene and subsequently developed a heroin addiction. She used heroin on and off until the age of 27. During that period Ms Le did not work and was in receipt of Centrelink benefits. At one stage Ms Le was charged with possession of heroin, for which she served one month in jail.
8 Since approximately 2000, Ms Le said she has been “on and off” a methadone program, under the care of general practitioner, Dr Sherman.
9 In August 2011, Ms Le witnessed a fight in which her brother stabbed a man with a knife. The victim subsequently died, for which her brother received a 10 year term of imprisonment. Ms Le said she sought legal advice in relation to claiming Crimes Compensation for having witnessed that incident, but did not ultimately proceed with the claim.
10 By the age of 27, Ms Le said she had managed to get off heroin, with the assistance of her brother, Kevin. She was looking to start a new life, and managed to obtain employment with Builders Clean, a company that cleaned newly constructed houses in the Werribee area. Ms Le said that she was able to obtain such employment without having to first undergo a police clearance, and that she worked varying hours over a few months.
11 On 24 June 2013, Ms Le consulted general practitioner, Dr John Green, at the Millennium Medical Centre. She complained of right shoulder pain, for which she was prescribed Tramal. Ms Le next consulted Dr Green on 22 September 2013, and obtained a further script for Tramal. In cross-examination, Ms Le conceded that, at that time, she did not tell Dr Green about her heroin addiction or her involvement in a methadone program.
Ms Le’s employment with Dudley’s Corporation and her lower back injury
12 In approximately July 2012, Ms Le commenced employment with Dudley’s Corporation, as a cleaner. Ms Le initially worked the evening shift, where she would clean toilets on approximately eight levels of a high-rise building, before later transferring to the day shift, where she would check the toilets as well as cleaning all the common areas and lifts within the building.
13 Ms Le claimed that she suffered her lower back injury on 12 December 2013. Her claim form stated that she had been cleaning toilets when, at about midday, she experienced lower back pain after the constant bending of her back. By the end of the day she was physically unable to continue working and left her shift early. Ms Le then had a few days off work, before returning on 16 December 2013.
14 On 31 December 2013, Ms Le consulted Dr Green, who took a history that she had suffered three weeks of right-sided lower back pain, as a consequence of her toilet cleaning duties. He prescribed Tramal, and provided her with a Certificate of Capacity.
15 In cross-examination, Dr Green conceded that, at that time, he did not enquire as to whether Ms Le had consulted another doctor in the preceding three week period, or whether or not she had continued at work.
16 On 8 January 2014, a CT scan was taken of Ms Le’s lumbar spine. It demonstrated a broad-based posterior disc bulge at L4-5, causing minimal thecal indentation.
17 On 7 April 2014, Dr Green saw Ms Le with a physiotherapist named “Ryan”. Dr Green could not recall where Ryan was from. His clinical notes from that attendance stated:
“…the Q now is whether or not she is eligible to rtw doing modified duties and reduced hours eg v streamlined cleaning duties involving minimal bending and twisting,
she is up for it;
this is a fine line
review weekly until she is out of trouble
at present she is in tears and not capable of doing too much and she needs to walk a fine line to stay out of more trouble”
18 As at 28 April 2014, Dr Green stated that Ms Le would be fit to return to work on modified duties from 5 May 2014, with restrictions involving no bending of her back and minimal prolonged postures. Dr Green also recommended that Ms Le undergo physiotherapy and a weight management program.
19 Ms Le consulted physiotherapist, Mr Nathan Labinski, from 16 April 2014 until 14 May 2014. At the time of her first attendance, Mr Labinski noted that Ms Le complained of pain in the lower portion of her spine, which she described as a “constant, moderate, central ache”. He noted that her pain and stiffness was at its worst in the morning, and that whilst it improved throughout the course of the day, it caused her difficulties in getting comfortable in bed and woke her approximately six times per night. Mr Labinski noted that, at that stage, Ms Le’s aggravating factors were sitting longer than one hour and standing for more than 10 minutes.
20 At the time of her last consultation on 14 May 2014, Mr Labinski noted that Ms Le felt better, and that she was feeling “looser” in her lower back.
21 In her first affidavit, Ms Le said that she did not return to work on modified duties, as she was informed by her employer that no duties were available. She also stated that her employer had informed her that the cleaning contract had been terminated after she had ceased work, and that she would be required to return her uniform. In cross-examination, however, Mr Le said she could not recall any such conversation.
22 In the second half of 2014, Ms Le said that she obtained employment with Another Bloody Carpet Cleaner, performing end of lease cleaning jobs. Ms Le said the work was light and that she was able to work at her own pace. She said that whilst she continued to suffer ongoing lower back pain, she was able to cope with tasks such as vacuuming, dusting, mopping, wiping cupboards and bathrooms. Ms Le said she usually worked three to four hours per day, three days a week. She sometimes worked up to six days a week, and on one occasion, worked two consecutive eight hour days in Bendigo, travelling up and back each day. Ms Le said that she did the work that was offered to her.
23 On one occasion, after she had been working for Another Bloody Carpet Cleaner for about three months, Ms Le said that she was putting the company’s vacuum into the back of her car when she felt a sharp pain in her lower back. She said she telephoned her boss and had some time off work. After about two weeks, Ms Le said she was informed that the section in which she had been working had been closed and that, as a result, there was no longer a job available for her.
24 Dr Green had no history of this subsequent cleaning work or the vacuum cleaner incident. However, he said he was not surprised such an incident had occurred, as he considered Ms Le to be at risk by virtue of her “genuine low back condition”.
25 Ms Le said she ceased employment with Another Bloody Carpet Cleaner very shortly before her brother, Kevin, died in a tragic car accident on 21 December 2014. When cross-examined as to the timing of this accident, Ms Le said she thought she had stopped work a few weeks prior to the accident, but could not be certain of the exact date.
26 On the night of his death, Ms Le had been driving Kevin home, as he had been drinking heavily. At one point, Kevin attempted to get out of the car, and became violent when Ms Le attempted to stop him. Kevin subsequently ran across the road and was hit by a car. Ms Le acknowledged that she was extremely close to Kevin, and that his death has had a very significant impact upon her life. Whilst she did not refer to either of the accidents in her affidavits, Ms Le readily accepted in cross-examination that she had suffered significant trauma and depression as a consequence of his death and the surrounding circumstances. She acknowledged that she has suffered flashbacks, nightmares, was unmotivated and had difficulties with her sleep.
27 On 28 December 2014, Ms Le consulted Dr Green for the first time in over seven months, at which time she informed him of the circumstances of Kevin’s death. Dr Green referred her to psychologist, Ms Kim Carli.
28 Ms Le obtained counselling from Ms Carli on at least 13 occasions, from early 2015 until late 2016. In a report dated 11 July 2016, Ms Carli stated that, in her opinion, given the severity and rigidity of her symptoms, Ms Le would be unfit for employment for the foreseeable future. She considered her psychological prognosis to be poor.
29 Ms Le had been in a long-term relationship for over 14 years, which ended a few months after Kevin’s death. Ms Le then commenced a new relationship with a man who acted violently towards her. In April 2015, she sought an Intervention Order against her then partner, as he had made threats towards her. Ms Le acknowledged that this was a further stressful event in her life.
30 Ms Le acknowledged that she had relapsed into heroin use in 2015 and 2016, and said that she had last used heroin approximately four months ago.
31 Ms Le acknowledged that in addition to her heroin addiction, she has also purchased Tramal medication on the streets, which she believes assists her with pain relief. Ms Le understood that Dr Green will not prescribe Tramal for her, because of her methadone use. Notwithstanding that medical advice, Ms Le stated that she purchases a packet of 20 Tramal tablets, which she uses over the course of a month before then purchasing a new packet.
32 Dr Green acknowledged that Ms Le had not informed him of her involvement in the methadone program until November 2015. He was not aware that she had last used heroin four months ago or that she purchases Tramal on the street.
33 In addition to purchasing Tramal on the street, Ms Le said that she uses Panadol on a daily basis, but that she limits herself to two tablets a day. She said that she has ceased using heat packs and Voltaren cream as she found they offered little benefit.
34 Ms Le said that she continues to suffer constant lower back pain. Ms Le said that the severity of her pain fluctuates from 4 to 10 out of 10, and that when she is at a level 10 she can barely walk.
35 Ms Le said it is difficult for her to bend and touch the floor, which makes it difficult for her to get dressed. She also finds it difficult to clean the house, and relies upon her brother and sister-in-law to do the heavier tasks.
36 Ms Le said that her ability to sit and stand beyond a short period of time is adversely impacted by her lower back pain. She said her walking is affected and that, after a short period, she tends to walk with a right-sided limp.
37 Ms Le said that she often spends her days speaking to friends at a coffee shop in Footscray, and that she sometimes plays the pokies. When she does play the pokies, Ms Le said she stands due to her lower back pain.
38 In late 2015, Ms Le undertook a course in order to obtain a certificate in meat processing. However, she said that she did not believe she could perform such work, as it involved a lot of standing and heavy lifting.
39 Ms Le said that she has recently completed a course to qualify as a traffic controller. She has applied for about 43 jobs in the last two weeks and said that she would try this work and “see how it goes”. She said that if the job required her to work four hours in the morning and four hours in the afternoon, she would take it up and “see how it goes.”
40 Ms Le said she is currently being assisted by Disability WCYG, a job seeking service for people with a disability in receipt of Centrelink benefits. Ms Le also stated that she had registered with online job seeking sites, Seek and Indeed, and that she was genuinely hoping to obtain work.
41 Affidavits were also tendered from Ms Le’s brother and sister-in-law.
42 Ms Le’s brother, Patrick Pitts, stated that he and his wife assist Ms Le in cleaning and maintaining her home on at least a weekly basis. They also assist her in meal preparations.
43 Ms Le’s sister-in-law, Danielle Dickson, also confirmed that such assistance is provided on at least a weekly basis, and said that, at times, she has attended Ms Le’s apartment to help her shower, dress and undress.
Ms Le’s medico-legal evidence
44 Ms Le’s solicitors arranged for her to be examined by occupational physician, Dr James Rowe, in August 2016 and March 2017. In his first report dated 25 August 2016, Dr Rowe noted that Ms Le complained of lower back pain, together with pain and limitation of movement in her right shoulder. Dr Rowe considered it difficult to give an exact diagnosis without further radiological investigations. At that time, Dr Rowe considered that Ms Le only had the capacity for light duties, with a lifting limit of five kilograms. He said that she had a capacity for no more than 10 hours’ work a week.
45 In his subsequent report dated 8 March 2017, Dr Rowe noted that since his previous examination, Ms Le demonstrated less stiffness in the movements of her back and a better range of movement in her right shoulder. He considered that she had the capacity to work as a traffic controller, as such a role would not involve heavy lifting, and noted that whilst she would have to stand, seating could sometimes be provided. Dr Rowe suggested that Ms Le could start at 10-12 hours a week.
46 Dr Rowe was asked to review a report of Dr Joseph Slesenger dated 1 June 2016. Dr Rowe stated that he agreed with Dr Slesenger, in relation to Ms Le’s capacity for re-employment in the areas identified in the vocational assessment report of Recovre dated 23 May 2016.
47 In December 2016, Ms Le’s solicitors arranged for her to be examined by orthopaedic surgeon, Mr Michael Khan. In his report dated 7 February 2017, Mr Khan noted that Ms Le complained of persistent lower back pain, which was associated with “a fair amount of stiffness on movement of the lumbar spine”. Mr Khan also noted that Ms Le complained of a mild ache and stiffness in her right shoulder, as well as some pain in her neck.
48 On the material before him, Mr Khan considered that Ms Le suffered discogenic pain at L4-5 level, with a suspected mild disc prolapse, associated with referred pain into the right buttock and thigh, without radiculopathy. In relation to her right shoulder pain, Mr Khan considered that she suffered mild capsulitis. Mr Khan considered her right shoulder condition was unrelated to her employment with Dudley’s Corporation.
49 Mr Khan was of the opinion that, as a consequence of her lower back injury, Ms Le was unable to perform heavy or strenuous work involving excessive bending, twisting, turning of the spine, keeping her back bent for long periods, or lifting heavy weights. Mr Khan considered Ms Le should avoid lifting more than five kilograms at a time, and said she should work within such restrictions.
Defendant’s medico-legal evidence
50 The defendant arranged for Ms Le to be examined by orthopaedic surgeon, Mr Michael Troy, on 28 April 2014. He noted that, at that time, Ms Le reported an improvement of about 50 per cent. Mr Troy considered Ms Le was fit to return to some type of physical work, and thought that modified duties could include cleaning tasks such as dusting windows, spot cleaning and refilling soap and other containers. Mr Troy was of the opinion that Ms Le could undertake such work on a full-time basis, provided any such work did not involve any major lifting, twisting or bending.
51 The defendant also arranged for Ms Le to be examined by rheumatologist, Dr Karna, on 9 September 2015, for the purposes of an AMA 4th Edition Impairment Assessment pursuant to s98C & E of the Accident Compensation Act. Dr Karna noted that, at that time, Ms Le complained of “constant [24/7] low back discomfort left and right side, but has no radiation into the legs”. Dr Karna was of the opinion that Ms Le had residual symptoms and dysfunction of her lower back due to a soft tissue injury, on a background of degenerative L4-5 disc disease.
52 The defendant also arranged for Ms Le to be examined by psychiatrist, Dr Ingram, on 20 October 2015. He noted that Ms Le considered her problems related to the death of her brother, Kevin, in a car accident on 21 December 2014. Dr Ingram was of the opinion that Ms Lee was suffering from several psychiatric conditions, being post-traumatic stress disorder (“PTSD”), a moderately severe depressive illness and an atypical grieving process. He considered it to be atypical by virtue of the fact that it had continued for an extended period without any improvement. Dr Ingram considered these conditions were a direct consequence of the circumstances of Kevin’s death.
53 In May 2016, the defendant arranged for Ms Le to undergo a vocational assessment with Recovre. The interview was conducted by employment placement consultant, Robyn Willett. In her report dated 23 May 2016, Ms Willett considered Ms Le’s educational and work background, as well as her tolerances for sitting, standing, walking, lifting and driving. After considering medical reports from Dr Green, Mr Troy and Dr Karna, Ms Willett then expressed an opinion that the following work options were suitable for Ms Le:
(i)Hand packer
The duties associated with this job include obtaining supplies of products and assembling bags, package folders, cartons, counting and placing bags and packages on trays and racks and recording information such as numbers, weight, times and dates. It has no minimum education requirement and the physical demands were described as light, meaning it may involve “lifting 9.1 kg maximum with frequent lifting and/or carrying of objects weighing up to 4.5 kg”.
(ii)Process worker
The duties associated with this job include standing constantly to operate food processing and production machinery. The physical demands were described as medium, meaning it may involve “lifting 22.7 kg maximum with frequent lifting and/or carrying of objects weighing up to 11.3 kg”. It has no minimum education requirement.
(iii)Meter reader
The duties associated with this job include reading meters and recording details into a handheld device. It can occasionally involve sitting at a computer workstation and downloading data recorded on the meter run. It has no minimum education requirement.
(iv)Product quality examiner
The duties associated with this job include studying product specifications, taking product measurements, examining outputs, compiling quality assurance reports, maintaining documentation and reporting findings. The physical demands were described as light, and thus it is similar to the job of hand packer. It has no minimum education requirement.
54 In May 2016, the defendant arranged for Ms Le to be examined by occupational physician, Dr Joseph Slesenger. Dr Slesenger considered that Ms Le initially sustained a musculoskeletal injury to her lumbar spine, before subsequently developing a chronic pain disorder. He was of the opinion that Ms Le had the capacity for re-employment and considered the jobs identified in the Recovre vocational assessment report dated 23 May 2016 to be suitable.
55 In May 2017, the defendant arranged for Ms Le to be examined by general surgeon, Professor Vernon Marshall. In his report dated 1 June 2017, Mr Marshall stated that, in his opinion, Ms Le had sustained a soft tissue lower back injury during the course of her employment, which he considered should already have resolved. In such circumstances, Professor Marshall considered that her symptoms were significantly influenced by non-organic factors. He was of the opinion that Ms Le had the capacity to return to her normal pre-injury duties and hours. He was also of the opinion that Ms Le had the capacity to perform the jobs identified in the Recovre report.
Ms Le’s reliability as a witness
56 The defendant challenged Ms Le’s claim on the basis that she was not a credible witness, in that she had exaggerated her lower back pain and the impact it had upon her.
57 Mr Batten relied upon the following matters to demonstrate Ms Le’s unreliability:
(i) In her first affidavit, Ms Le stated that she was not able to return to work on modified duties as her employer had lost its contract after she had ceased work. In cross-examination, however, Ms Le said she was either not aware the contract had been terminated or could not recall it. I do not consider this evidence to reflect upon Ms Le’s credibility and, instead, consider it to demonstrate that she is a relatively simple woman, with a poor memory.
(ii) Ms Le was not full and frank in her dealings with Dr Green, in that she did not tell him about her drug history until November 2015, or that she was purchasing Tramal on the street. I am not surprised that Ms Le concealed her drug use from her general practitioner, and I do not consider this to reflect upon her reliability as a witness.
I do, however, consider Ms Le attempted to downplay her current drug use when giving evidence. She initially said that she had last purchased Tramal off the street approximately one month ago. However, when she was asked if she had been handed a “white sash of something” the previous Friday on a street corner in Footscray, Ms Le agreed. She said that the sash contained Tramal and not heroin. Video surveillance was subsequently played in Court, which showed Ms Le being handed something by another woman walking past her in the street. Ms Le confirmed that, on this occasion, she had given $1.50 to a woman to purchase a cigarette and the video surveillance showed this woman handing the change to her, being 20 cents.
I do not accept Ms Le’s evidence in relation to when she last used heroin or how often she purchases Tramal. However, I do not consider her unreliability in respect of her drug use to be so significant as to challenge the reliability of the remainder of her evidence.
(iii) The defendant relied upon video surveillance of Ms Le, taken on 17 and 20 May 2016, and 8 and 9 June 2017. The surveillance shows Ms Le going about her daily life – walking with a friend, going into shops, waiting in her car, talking to people on the street, playing the pokies, and feeding pigeons. Most of these activities are innocuous and show Ms Le doing very little with her days.
When Ms Le is seen feeding the pigeons, she bends over and kicks her leg out in a way that shows relatively free movement. However, I note that when she plays the pokies, she stands and leans on a chair. The video surveillance is a tiny snapshot of Ms Le’s life over the last two years, and I do not consider it to be inconsistent with her sworn evidence as to what she can and cannot do.
Disentanglement of Ms Le’s psychological upset
58 In assessing Ms Le’s claim for her lower back injury, I must consider only the physical consequences arising from that injury whilst disregarding any psychological or psychiatric consequences.
59 Mr Batten submitted that the physical effects of Ms Le’s lower back injury had long resolved, such that her current presentation is non-organic. In that regard, he relied upon the report of Dr Ingram and his diagnosis of PTSD and depression.
60 I accept that Ms Le suffered a significant psychiatric reaction following Kevin’s death, for which she has required psychological treatment. I also accept that there have been other psychological traumas in her life and that she has a history of substance abuse. I accept the opinion of Ms Carli that Ms Le’s psychiatric condition is so severe that it may incapacitate her for employment for the foreseeable future.
61 In the case of Acir v Frosster Pty Ltd,[1] Forrest J considered a serious injury application under s134AB of the Act for a plaintiff who was gravely ill as a result of end stage cirrhosis. The plaintiff sought to claim damages for a back injury he suffered during the course of his employment. Subsequent to suffering that back injury, the plaintiff developed a right shoulder injury, as well as a chronic liver condition, for which he was placed on a waiting list for a liver transplant. In assessing the plaintiff’s claim, Forrest J accepted that, irrespective of the plaintiff’s shoulder injury and liver condition, the plaintiff’s back injury had a significant effect on the plaintiff’s lifestyle and work capacity. In assessing the plaintiff’s claim for loss of earning capacity under s134AB(38)(e) and (f), his Honour disregarded the incapacity caused by the liver condition. He noted that the intervening medical condition would be relevant in a damages claim, but considered that it must be disregarded in assessing the serious injury application. By way of example, Forrest J referred to a person being hit by a bus and placed in a vegetative state, one day prior to the three year post-injury period. He stated that, failure to then let such a person claim for loss of earning capacity may lead to capricious results.
[1][2009] VSC 454
62 This reasoning was subsequently approved by the Court of Appeal in The Herald & Weekly Times Ltd & Anor v Jessop,[2] in which it was noted that s134AB(38) was intended to be a gateway, for which the plaintiff must satisfy the specific requirements, rather than any common law requirements. In assessing this application, I must therefore disregard any loss of earning capacity that Ms Le suffers as a consequence of her psychiatric condition.
[2][2014] VSCA 292
63 I do not accept that Ms Le’s current presentation is non-organic. The CT scan taken in November 2016 confirmed the ongoing presence of a disc bulge at L4-5, resulting in minor anterior thecal sac indentations. I accept Ms Le’s evidence that she has suffered ongoing lower back pain since December 2013, and am satisfied that there is an organic basis to this injury. This conclusion is supported by the opinions of Dr Green, Dr Rowe, Mr Khan, Mr Troy and Dr Karna.
64 In such circumstances, I do not accept the opinion of Dr Slesenger that an initial musculoskeletal injury has now developed into a chronic pain disorder. Nor do I accept Professor Marshall’s opinion that a soft tissue lower back injury has now resolved, and that her symptoms are significantly influenced by non-organic factors.
65 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,[3] it was held that once the Court has accepted there is a substantial organic basis for the claimed impairment, then the plaintiff does not need to disentangle the physical contributions from the psychological contributions.[4] For the reasons stated above, I am satisfied that there is an organic basis to Ms Le’s lower back injury.
[3][2013] VSCA 201
[4][2013] VSCA 201 at [21]
Ms Le’s claim for loss of earning capacity as a consequence of her lower back injury
66 To succeed in her application, Ms Le bears the onus of satisfying me, that as at the date of hearing, that as a consequence of her lower back injury, she has sustained a loss of earning capacity of 40 per cent or more; and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Ms Le is capable of earning, whether in suitable employment or not.
67 In undertaking this task, I must compare what Ms Le is capable of earning in suitable employment with her pre‑injury earning capacity. To determine her pre‑injury earning capacity, I must decide which of the following scenarios most fairly reflects her earning capacity had she not suffered the injury:
(a)the gross income that she was earning from personal exertion; or
(b)the gross income she was capable of earning from personal exertion; or
(c)the gross income she would have earned from personal exertion; or
(d)the gross income she would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the injury.
68 In The Herald & Weekly Times Ltd & Anor v Jessop,[5] the Court of Appeal stated that the Court needs to consider which of the four alternative scenarios most fairly reflects the plaintiff’s earning capacity, had the injury not occurred.[6]
[5][2014] VSCA 292
[6]Ibid at [42]–[44]
69 In 2013/2014, the financial year in which she suffered her lower back injury, Ms Le earned $30,633.99, and I accept that sum as the figure which most fairly reflects her without injury earning capacity. This equates to a gross weekly income of $589.12. Therefore, in order to satisfy me that she has suffered the requisite loss of earning capacity, Ms Le must prove that she is incapable of earning more than $353.47 now and on a permanent basis.
What is Ms Le capable of earning in suitable employment?
70 As was noted by the Court of Appeal in Harris v DJD Earthmoving Pty Ltd,[7] the assessment as to what constitutes suitable employment for a plaintiff is a test of physical capacity, not employability. It involves a consideration of what Ms Le might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[8]
[7][2016] VSCA 188 at [48]
[8]Ibid at [49]
71 The definition of “suitable employment” is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[9]
[9]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [25] and [28]
72 Ms Le has had very limited schooling. She has only ever had three jobs - all cleaning related, and for relatively brief periods of time. Her employment record could be readily described as poor.
73 Ms Le has no computer skills. She has no experience in customer service.
74 I accept that Ms Le suffers an ongoing lower back injury as a consequence of her employment with the defendant in December 2013. I accept that she purchases Tramal off the street to help with pain relief. I accept that her pain is exacerbated by prolonged sitting and standing.
75 Dr Green was cross-examined as to the history he had obtained from Ms Le and his subsequent treatment. Mr Batten described Dr Green as argumentative. I reject this description. I found Dr Green to be an experienced and caring doctor, who endeavoured to answer the questions asked of him to the best of his ability, based upon his clinical records and his treatment of Ms Le over four years.
76 In re-examination, Dr Green was asked to consider the four jobs identified in the Recovre report dated 23 May 2016. Dr Green was of the opinion that the lifting requirements of hand packer, process worker and product quality tester were beyond Ms Le's limits. He was also of the opinion that her educational skills would be insufficient for her to undertake the jobs of hand packer and meter reader.
77 I accept Mr Khan’s opinion that Ms Le should avoid performing heavy or strenuous work involving excessive bending, twisting, turning of the spine, keeping her back bent for long periods or lifting heavy weights. He specifically stated that Ms Le should avoid lifting more than five kilograms at a time. These restrictions appear to be consistent with the opinion of Dr Rowe, who considered that Ms Le had the capacity for light duties, with a lifting limit of five kilograms.
78 I note that Dr Rowe accepted Dr Slesenger’s opinion, that Ms Le could undertake the jobs identified in the Recovre report. However, given the lifting limits in each of these jobs, save for meter reader, involved lifting more than five kilograms, I consider it likely that Dr Rowe offered his opinion without knowledge of the specific physical demands of each job.
79 I note that Mr Troy was of the opinion that Ms Le should avoid work involving any major lifting, twisting or bending. This opinion was provided in April 2014, and whilst it is consistent with the opinions more recently offered by Mr Khan and Dr Rowe, I accept that its current relevance is marginal.
80 For the reasons detailed above, I do not accept the opinions of Dr Slesenger or Professor Marshall. I consider it necessary to view their optimism in respect of Ms Le’s capacity to return to employment in the context of their assessment that she is now suffering a non-organic condition.
81 Having considered all the evidence, including the medical opinions, I am satisfied that the jobs proposed by Recovre are unsuitable for Ms Le.
82 I consider that, realistically, the only job that Ms Le could undertake in suitable employment is a traffic controller for 10 to 12 hours a week. Dr Rowe thought this role was suitable and, as it has no lifting requirements, I consider it to be consistent with the restrictions recommended by Mr Khan. Although Dr Green was not asked about this job, it is consistent with the Certificate of Capacity he issued in April 2013. As a traffic controller, I note that Ms Le could alter her posture to alleviate her lower back pain, and that the job does not involve lifting or repetitive bending.
83 As was noted by the Court of Appeal in Harris,[10] the assessment as to suitable employment for a plaintiff is not a test of employability, but one of physical capacity. In making this assessment, I am therefore not to be concerned that Ms Le has unsuccessfully applied for 43 jobs. I am satisfied that if she was offered a job, she could reliably perform the role for 12 hours per week. I believe she could work such hours over the course of the week, thereby affording her sufficient days at home to rest her lower back.
[10][2016] VSCA 188
84 The Defendant suggested that Ms Le could work 20 hours per week – two hours each morning and two hours each afternoon, for five days each week. However, I am of the opinion that such hours would push Ms Le beyond her standing tolerance, as well as increasing her pain and need for medication. In such circumstances, I consider it would jeopardise Ms Le’s ability to attend work on a regular and consistent basis.
85 For those reasons, I am satisfied that Ms Le’s maximum work capacity in suitable employment, is 12 hours a week as a traffic controller.
86 After the conclusion of the case, but with my leave, Ms Le’s solicitors tendered a wage rate report prepared by Evidex for the occupation of traffic controller. In this report dated 27 June 2017, Mr Davy of Evidex advised of the following:
(i) the award rate for a traffic controller is $21.68 per hour;
(ii) the statistical earning for a traffic controller is $22.79 per hour;
(iii) the enterprise agreement rate is $24.83 per hour;
(iv) the Building & Construction General On-Site Award (MA 000020) is $20.94 per hour.
87 In response, the defendant’s solicitors tendered a supplementary vocational assessment report, prepared by Recovre and outlining the wage details for the occupation of traffic controller. In her report dated 28 June 2017, Ms Ash of Recovre advised the following:
(i) the award rate for a traffic controller is $18.42 per hour;
(ii) a traffic controller with less than six months’ experience can earn $49.36 per hour. Traffic controllers with over six months experience can earn $50.93 per hour plus the potential of $43.00 for travel allowance per day, 225% overtime rate and 275% public holiday rate. I note that these figures have been taken from the CFMEU website, which outlines details of their EBA agreement wage rates for traffic controllers.
88 Given Ms Le has such a poor work record, and no experience in traffic management, I consider it probable that if she was able to obtain such employment, it would only be at the award rate. I consider it unrealistic to expect her to be remunerated at the upper levels of the salary identified in the defendant's material.
89 I note that there is a slight discrepancy in the award rates sited by Evidex and Recovre. The rate used by Evidex is that which has applied from 1 July 2017. Applying that higher award wage figure of $21.68 per hour, I am satisfied that Ms Le could earn $260.16 in such suitable employment.
90 In these circumstances, I am satisfied Ms Le has a capacity for suitable employment, but that she will not earn more than $353 per week. I am satisfied this is the position now, and that this incapacity will remain for the future and be permanent. Accordingly, Ms Le has suffered the requisite loss of 40 per cent.
91 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for Ms Le meet the “very considerable” test.[11] Given my acceptance that the plaintiff’s injury restricts her to at best, only part-time work, the pecuniary disadvantage to her is so great, that I consider her loss of earning capacity can be described as very considerable.
[11]s134AB(38)(c)
92 As Ms Le has satisfied me that she suffers a serious injury in respect of loss of earning capacity arising from her lower back injury, it is not necessary for me to consider separately her pain and suffering consequences.[12]
[12] Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
93 I am satisfied Ms Le suffers a serious injury to her lower back, arising as a consequence of her employment with the defendant, and that the consequences are such that she should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
94 I will make the consequent orders.
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