Lester v Victorian WorkCover Authority
[2015] VCC 1739
•19 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-14-05447
| PETA MICHELLE LESTER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 November 2015 | |
DATE OF JUDGMENT: | 19 November 2015 | |
CASE MAY BE CITED AS: | Lester v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1739 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – discal injury to lumbar spine – pain and suffering and economic loss – capacity to earn
Legislation Cited: Accident Compensation Act 1985, s134AB(e) and (f)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to issue proceedings for pain and suffering and economic loss damages on account of injury to the cervical spine suffered in the course of the plaintiff’s employment with the employer from approximately August 2010 to June 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr A J Saunders | Slater & Gordon Lawyers |
| For the Defendant | Mr P R Trigar | Wisewould Mahoney Lawyers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of her employment with Coleraine Pty Ltd, (“the employer”), from approximately August 2010 to June 2011.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering, and loss of earning capacity. These discrete heads of damage require the application of different statutory tests as mandated by s134AB(37) and s134AB(38) of the Act. The plaintiff brings this application pursuant to Clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
3 There, “serious injury” is defined, relevantly, as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine. The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports, affidavits and other material which were tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
5 The impairment of a body function must be permanent, in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss19 and ss38(e) of the section, impose specific burdens in relation to a claim for loss of earning capacity. By ss38(c) of the section, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be described at the date of hearing as being “more than significant, or marked” and as being “at least very considerable”.
6 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this application with other cases in the range of possible impairments, or losses of body function.
7 Here, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Sub-section (38)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established. However, in this case, it does not loom as an issue, particularly it seems, as the plaintiff has returned to work as a waitress. Further, although ss(38)(h) provides that consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases, this is also not in contention here.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners & Ors v Podolak.[1]
[1](2005) 14 VR 622
10 The defendant concedes that the plaintiff has suffered an injury to the lumbar spine in the course of her employment, as alleged, which has resulted in permanent impairment, but says:
(a)such physical injury has produced consequences which do not meet the threshold as set out by the Act for economic loss, or for pain and suffering;
(b)the plaintiff has not proved a 40 per cent loss of earning capacity pursuant to sub-paragraphs (e)(i) and (iii) because, essentially, the plaintiff has not proved that her capacity is limited to the current 15 hours per week, or at all.
11 The defendant’s counsel submits, that for the purposes of this case, the figure of $42,221 is appropriate for the earnings attributable to the financial year ending 30 June 2011 which would be relevant to sub-paragraph (f)(ii) of the relevant section. This would mean, he submits, that 60 per cent of that figure is $25,332 and the plaintiff would have an earning capacity threshold at her current hourly rate of $23.88 per hour of 20 hours per week, and thus the plaintiff should fail with respect to her claim for economic loss pursuant to sub-paragraph (e)(i) of the relevant section.
12 The plaintiff is currently working 15 hours per week as a waitress, and claims that this is the limit of her capacity. The plaintiff submits that the “without injury” earnings figure should be $47,192, being the earnings of a comparable worker for the financial year ending 2013. The practical difference between the two figures is that the threshold for the hours worked would extend from 20 hours to 23 hours per week for the higher annual figure.
The issues
13 The dispute between the parties ultimately descended to a contest as to whether the plaintiff had proved her loss of earning capacity, according to statute, by reference to any residual capacity over and above the 15 hours per week that she is currently working, and of which she would be able to avail herself according to the formula.
14 Before turning to the evidence, it is worth noting that it was common ground between the parties that in the course of the plaintiff's employment, she injured her lumbar spine by way of production of a disc prolapse at L5-S1 (or L6-S1), resulting in surgery, with subsequent pain and neurological sequelae, and that it was not in contention that she was permanently precluded from performing her pre-injury duties fulltime.
Pre-injury earning capacity
15 The Court of Appeal in Barwon Spinners & Ors v Podolak[2] was constrained in a number of cases to consider the interpretation to be afforded to s134AB(38)(f) and s134AB(38)(e). These principles are set out at paragraphs 21 and 22 and I will not repeat them here. Relevantly, paragraph 23 recited:
“The latter, without-injury earnings, are to be calculated by reference to ‘that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity’, had there been no injury. The Court is therefore required to go well beyond actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out ‘as most fairly reflects the worker’s earning capacity’. As it stands, that task is not inconsiderable.”[3]
[2]Supra
[3]Barwon Spinners & Ors v Podolak (supra) at paragraph [23]
16 The common law position would be that the plaintiff would be able to measure her loss of earning capacity by comparing her “without injury” earnings at today’s date, compared with her present capacity to earn. Parliament has seen fit to restrict to a six-year window “without injury” earnings such that this has a practical consequence of disadvantaging a worker where it is demonstrated that there is a rising wage level over the relevant period. Here, there is a demonstrated increase in the trend of earning capacity between 2011 and 2013.
17 Accordingly, in my view, the 2013 figure is the figure which most fairly reflects a worker’s earning capacity for “without injury” earnings.
The Plaintiff's case
18 The plaintiff tendered two affidavits sworn 26 June 2014 and 17 November 2015.[4] The first affidavit attests that she was born in September 1976 and is presently aged thirty-nine. In September 2009, she obtained full-time employment with the employer to work as a store person, and delivery driving from their factory in Derrimut. She further stated she had some past issues associated with abuse and depression. On a couple of occasions in 2010, she was prescribed antidepressants; however, she attested she was physically fit and able to undertake full-time work for the employer.
[4]Exhibit A
19 Further, the plaintiff’s work with the employer often required her to lift, load and store truck parts and boxes of parts. She described the work as heavy and repetitive. This contention was not placed in issue in the case. Further, that whilst working in approximately August 2010, she developed pain in her low back and kept on working, until she finally ceased work in June of 2011.
20 On 19 September 2011, the plaintiff came to spinal surgery at St Vincent’s Hospital. Thereafter, she states the surgery was successful, in that it relieved the severe right sciatic pain that she had been suffering; however, it did not completely cure her pain. Thereafter, she had ongoing fluctuating back pain and symptoms down her right leg, mainly a feeling of numbness down that leg. In July 2012, she resigned her employment.
21 From about 2013, the plaintiff has been attending a general practitioner, Dr Burke, at Wyndham Health Care in Werribee. He continues to provide her, she stated, with a certificate on a monthly basis and continues to prescribe Effexor, an antidepressant. She did concede in cross-examination that Dr Burke does not otherwise treat her low-back pain, and has not done so for some time.
22 Thereafter, the plaintiff remained off work until March 2014. She stated that she was friendly with the proprietor of a cleaning company, being one, Ms Kathy Ward, who has also sworn an affidavit in this proceeding dated 7 November 2015.[5] She was performing up to 15 hours per week of light cleaning duties doing domestic and office cleaning. In her first affidavit, she swore:
“… It is only early days but I feel as if I have had increased back and leg pain since returning to work. I hope that is just my body becoming conditioned to work. My friend is aware of my back injury and makes allowances for me. For example, I don’t have to carry a vacuum and do heavier cleaning. … .”[6]
[5]Exhibit B
[6]Plaintiff’s Court Book (“PCB”) 18 at paragraph [16]
23 Further, in her first affidavit, the plaintiff swore as follows:
“Financially I need to work. I also miss the social aspects of work. Things have been difficult at home both financially and personally since I was injured. My husband and I separated after I hurt my back. After I was injured, our sex life became virtually non-existent. I believe my back injury contributed to the separation.”[7]
[7]PCB 18 at paragraph [17]
24 In cross-examination, the plaintiff stated that she would love to increase her hours if she was able to, but she feels that at the end of the week she cannot perform more than the 15 hours per week. She stated, in evidence, somewhat apologetically, that at the end of the working day, her back is “buggered”.
25 Further, in the first affidavit, the plaintiff swore that she and her husband would go Salsa dancing together, and because of her back injury, she had to give that up. She also states that she now has difficulty sleeping, but does not say how often, or to what extent.
26 In her second affidavit, sworn 17 November 2015, the plaintiff swore that there has been little change in her condition. She states she continues to suffer from chronic back pain:
“… (an ache, together with a pinching sensation), together with symptoms in my right leg (mainly, numbness, which starts in my right buttock, and runs down my leg into my foot).”[8]
[8]PCB 19b at paragraph [3]
27 Further, the plaintiff swears that the pain is aggravated by a range of activities – sitting and standing for long periods, lifting (even moderately heavy weights), bending and twisting and stooping – all of which she tries to avoid where possible.[9] She further swears that she continues to have significant difficulty sleeping. She states:
“… I continue to wake in pain – although now less often (say, three or four times per week; often, I have to get up to stretch my back before I can go to sleep).”[10]
[9]PCB 19b at paragraph [5]
[10]PCB 19b at paragraph [5]
28 As a consequence, the plaintiff swears she often wakes feeling unrefreshed and so, too, often feels tired during the day.[11] She states that she continues to see her general practitioner, Dr Burke, on a monthly basis and continues to take Advil (or Nurofen) as required, together with Effexor. She states she does not like to take tablets, she never has, and she would prefer to manage her condition by avoiding activities that she knows aggravate it.[12]
[11]PCB 19b at paragraph [6]
[12]PCB 19b at paragraph [9]
29 As to the consequences, the plaintiff swears that she is unable do even moderate jobs around the house. Although, in cross-examination, she conceded that she was able to do a number, if not all, household tasks, she stated that she chooses not to perform those tasks because of the aggravation of her back pain.[13] It would appear that she is now living with a new partner, and when questioned as to whether her intimate life is affected with respect to that relationship, she stated, “A little bit”.[14]
[13]PCB 19c at paragraph [10]
[14]There was seemingly no further evidence with regards to the new relationship
30 I mention this, not only because it is relevant to the consequences, but also, in my view, typifies the frankness with which the plaintiff gave her evidence and at no stage, in my view, did she attempt to “gild the lily”. Further, before the injury, she stated that she used to tend her garden, go Salsa dancing, ride a motorbike and ride a horse. In cross-examination, it would appear that many, not most, of these activities were confined to her prior life in Queensland before moving to Victoria prior to injury.
31 Importantly, the plaintiff swore that in mid-2015, she stopped working for her friend, because there was an unavailability of work. She then obtained a new job at La Porchetta restaurant working 15 hours a week. Once again, she swears that her boss was aware of the limitations imposed by her back condition and that that boss makes allowances for her. She swears that she just does the lighter work, such as greeting customers and seating them, together with light cleaning and work on the register.[15]
[15]PCB 19d at paragraph [17]
32 The plaintiff swore further that she believed that the 15 hours per week, either as a cleaner, or as a waitress, was her maximum working capacity. She swore:
“… Taking the job at La Porchetta as an example, by the time I got to Friday, I was spent. I needed medication to help me get through, and I would spend much of Saturday resting (with a heat pack).”[16]
[16]PCB 19d at paragraph [19]
33 The plaintiff was not cross-examined about this evidence.
34 Further, the plaintiff swore:
“Moreover, I do not believe that I would be able to work longer hours in an office job. I find that sitting for extended periods is almost the worst thing for my back.”[17]
[17]PCB 19d at paragraph [19]
35
I wish to make reference to the fact that the plaintiff has relied on affidavits from both employers referable to her employment in 2015, being an affidavit of Ms Kathy Ward, sworn 5 November 2015[18] and an affidavit of Ms Roula Abdo, sworn 7 November 2015.[19] Without reciting chapter and verse from these two affidavits, it should be noted that neither witness was called for
[18]Exhibit B
[19]Exhibit C
cross-examination. Both witnesses attest to their knowledge of the plaintiff’s back injury and both attest to the way in which they have made allowances, accordingly, in the performance of her duties. In particular, Ms Abdo swears:
“From my own observations the Plaintiff seems to struggle with pain. She has mentioned this to me and I can often see for myself that she is moving more carefully and slowly as her shift progresses.
I have been happy to provide this affidavit, as the Plaintiff has been a good employee who has impressed me with her efforts despite clearly working with her restrictions and pain.”[20]
[20]PCB 23 at paragraphs [7] and [8]
36 Further, Ms Ward swore, in her affidavit:
“Peta would sometimes mention that she was in pain. Having said that, it was also clear just from watching her that while she was keen to not mention the pain, she was being very careful and deliberate in the way that she moved her back.
I was happy to carry Peta in the business to some extent due to our friendship. If she had not have been my friend, I wouldn't have employed her as she wasn't able to work as fast as was really necessary and couldn’t do all the cleaning tasks without assistance.”[21]
[21]PCB 21 at paragraphs [7] and [8]
37 It is clear from this lay material where the focus of the main issue in this case lies.
Medical evidence
38 The plaintiff adduced evidence from surgeon, Mr Peter Wilde, in a report dated 2 July 2013.[22] At page 5 of his report, he stated:
“As a consequence of the physical injury, Ms. Lester does have a capacity for sedentary or light duties work. She has worked in reception previously and could manage this task, initially on a part-time basis but would be able to work full hours in this capacity after three months.”[23]
[22]Exhibit L
[23]PCB 66
39 Further, the treating general practitioner, Dr Paul Burke, in his first report dated 28 April 2014, stated:
“She cannot undertake pre-injury duties which involved a lot of repetitive heavy lifting. She can do full time hours in a role that does not involve any heavy lifting and no repetitive bending.”[24]
[24]PCB 69
Further in that report, he stated:
“She is doing regular home exercises and has stopped physiotherapy several months ago. It is essential that she takes care of her back and does not undertake any role which may exacerbate her old injury.”[25]
[25]PCB 69
And further:
“She is currently working as a cleaner for 15 hours per week.”[26]
[26]PCB 69
40 In my view, it is relevant that these views predate, essentially, the plaintiff’s attempts at return to work referred to earlier in 2015.
41 By 8 November 2015, Dr Burke had furnished a further report. He stated:
“I first saw Peta Lester in relation to Work Cover on 05/06/13 with a recurrence of lumbral/sacral (sic) pain brought on by coughing and vomiting. I advised anti-inflammatory medication. She requested a Work Cover certificate on 09/12/13 …. I continued to see her for Work Cover certificates (as her solicitor advised her to get a backdated Work Cover certificates) and mental health issues throughout 2013 and 2014. She complained of having constant chronic lower back pain and right buttock pain extending down to her right knee. She also had numbness down her right leg to her foot. In this regard she has been on modified duties since 2011 and has been unable to do more than a fifteen hours per week. Since this time she has remained on efexor (sic) for her depression. She also saw her psychologist on a weekly basis. This workplace injury has had a devastating effect on her life from an employment and social point of view. It is as a direct result of her workplace injury in 2011.”[27]
[27]PCB 72
42 Further, as to her prognosis, Dr Burke stated:
“She still has difficulties with her activities of daily living. She cannot sit or stand for periods more than 30 minutes. She has a problem with lifting [a] washing basket, doing washing up and drying. Given the chronic nature of her symptoms it is unlikely that she will improve much further.”[28]
[28]PCB 72
43 Occupational physician, Dr Clayton Thomas, also furnished an opinion with respect to the plaintiff, dated 25 May 2015.[29] He states:
[29]Exhibit N
“She does have capacity for back friendly work duties. She has capacity for light cleaning duties that she currently does. I think the limit of her hours in her current position would be 20 hours per week. I think she should avoid using buffing machines, vacuuming and heavy machinery. I think she can do some light mopping, emptying rubbish bins as long as the rubbish in the bins was light and also dusting duties. This is the current limit of her current duties.
I think she could return to office-type work duties. She would need to alter her posture on an hourly basis. I think if she were offered office-type duties she would be able to work up to but not beyond 25 hours per week.
…
The incapacity that she does have will continue into the foreseeable future. … .
There is no doubt that she has had a difficult time since the injury but she seems (sic) to be coping and managing reasonably well at the time that I saw her.”[30]
[30]PCB 75
44 The plaintiff was also recently examined by Dr A Aliashkevich, neurosurgeon and spinal surgeon, who reported on 31 August 2015.[31] He noted:
“She was complaining currently of a mechanical type of low back pain, dominating on the right hand side and reaching the intensity of around 7/10. After physical activities, she reported about increasing numbness on the lateral aspect of the right leg. She was smoking about 10 cigarettes per day and her weight was about 73 kg.”[32]
[31]Exhibit O
[32]PCB 77
45 On examination, Dr Aliashkevich noted:
“… The right ankle jerk was diminished and there was reduced sensation corresponding to the S1 distribution on the right hand side on pinprick testing. Range of movements in the lumbar spine was restricted with flexion possible to about 30o and significant paravertebral tenderness on palpation of the lumbosacral region.”[33]
[33]PCB 77
46 With respect to treatment, Dr Aliashkevich stated as follows:
“… With regard to her treatment requirements, she may need [an] updated MRI scan of her lumbar spine, flexion-extension x-rays of the lumbar spine and SPECT/CT of the lumbar spine to rule out underlying instability, neural compression and increased metabolic uptake in the facets, intervertebral discs and sacroiliac joints. She may require the involvement of a Pain Specialist and pain procedures for example, medial branch blocks based on the results of her radiological investigations.”[34]
[34]PCB 77
47 Further, he stated:
“At present, her suitable part-time employment involves cleaning/ waitressing jobs at about 15 hours per week.
…
She has the capacity of performing part-time cleaning duties 15 hours per week. She is unable to work fulltime due to the persisting character of her low back symptoms. She may be suitable for part-time admin assistant jobs, providing that she does not sit for more than 20 minutes at a time.”[35]
[35]PCB 78
48 Dr Aliashkevich further stated:
“Her prognosis was guarded, she is unlikely to make a full functional recovery in the foreseeable future.
…
She is not at increased risk of developing arthritis, although there is the chance of her condition deteriorating in the distant future.”[36]
[36]PCB 79
49 For completeness in the plaintiff’s case, reliance is placed on the report of Associate Professor Goldwasser, orthopaedic surgeon, dated 23 December 2013, who supported the plaintiff's application for a permanent disability payment pursuant to the s98C of the Act.[37] He noted, on clinical examination, inter alia:
“Her right ankle reflex was diminished compared to the left, whilst the knee reflexes were active and equal on both sides. There was an area of diminished sensation to pinprick extending from the lateral side of the foot and lateral two toes, to the ankle region and partly on the sole of the foot, consistent to be in the distribution of the S1 nerve root.”[38]
[37]Exhibit P
[38]PCB 79d
50 Accordingly, Associate Professor Goldwasser noted that the plaintiff developed back pain and right sciatica and still had residual numbness and a diminished right ankle reflex following surgery. He noted:
“There has been a marked improvement in her pain following surgery but she still has moderate back pain troubling her and still has restrictions of activities, particularly heavy lifting or repeated bending and stooping.”[39]
[39]PCB 79d
The Defendant’s case
51 The defendant has, fairly, only put in issue the extent of the plaintiff’s residual capacity, following a permanent impairment caused by the work-related injury. The defendant had the plaintiff examined by surgeon, Mr Ian Jones, on 8 April 2013,[40] who stated:
[40]Exhibit 1
“I do not believe this patient is capable of her pre-injury duties
This patient confirms that she has to perform her domestic activities including cleaning and food preparation within her home but suffers for it afterwards.
…
This patient has a capacity for light physical work and certainly work of a clerical nature.
…
…From time to time intermittent analgesic medication may be required. For her current symptoms of recurrent spasms affecting her right leg, a mild antispasmodic such as Valium may be appropriate at night.”[41]
[41]Defendant’s Court Book (“DCB) 8-9
52 Further, the defendant then had the plaintiff examined by occupational physician, Dr David Barton, on 4 February 2014.[42] He took a history of her current symptoms as follows:
“The worker believes her condition has improved a bit since the operation although she still has lower back pain that is present most of the time. She said that the pain is localised to the area of the scar and slightly to the left of the midline. Her symptoms are generally made worse with any particular physical activity including bending, lifting, sitting and standing. She feels that her back movements are limited. She says that her symptoms are generally worse in the colder weather and she has some stiffness in the morning. She describes some numbness around the back of the right foot extending to the outer two toes. … .”[43]
[42]Exhibit 3
[43]DCB 17
53 Importantly, on examination, Dr Barton stated:
“… She tended to move in a fairly slow and cautious manner. … .”[44]
[44]DCB 18
54 However, specific examination of the back did not reveal any major abnormality.
55 Dr Barton further stated:
“I would accept that she has persisting dysfunction with a possible radiculopathy following a back injury treated surgically. Her condition has not resolved.
…
I do not believe that she would be fit for her pre-injury duties.”[45]
[45]DCB 19
56 Dr Barton did feel, however, that the plaintiff could start –
“… modified duties once she has assistance in securing such work.”[46]
[46]DCB 20
57
The defendant then sought alternative advice from occupational physician,
Dr Michael Bloom, first on 9 September 2014.[47] The history on that occasion as to her current condition was said to be:
“I am not too bad. I can do pretty much everything, but with care.”[48]
[47]Exhibit 4
[48]DCB 25
58 Dr Bloom, noted:
“Mrs Lester said that most of the time she has no low back pain but occasionally experiences an episode of low back discomfort and pain, averaging about twice per week, and that this pain settles when she takes medications. She estimates the intensity of her intermittent low back pain to be about 3-4/10 on the Visual Analogue Scale.
Mrs Lester said that her low back pain is exacerbated with prolonged vacuuming or mopping, and prolonged sitting and prolonged standing. She said that factors that reduce her experience of low back pain include strengthening and stretching exercises, walking, applying Deep Heat and taking medication (Advil).
Mrs Lester said that with regards to her right leg this is mostly asymptomatic apart from some slight residual numbness in the lateral aspect of the right foot and 5th digit of the right foot.”[49]
[49]DCB 26
59 Further, Dr Bloom took a history that the plaintiff had secured some part-time light cleaning work by a friend in March 2015 for approximately 15 hours per work:
“… She said that she was coping with this work and happier whilst at work. However she said that she was laid off in July 2014 because of lack of availability of work.”[50]
[50]DCB 26
60 Further, Dr Bloom stated:
“Mrs Lester said that she feels relatively fully functional in her personal life, although she takes care with physically demanding activities … .”[51]
[51]DCB 26
61 On clinical examination, he noted, importantly:
“She presented in a straightforward manner, without overt signs of illness behaviour. … .
...
Neurological examination of the lower limbs revealed no muscle wasting or focal weakness. However the right ankle reflex was considerably less brisk than the contralateral left ankle reflex, and there was sensory loss over the lateral aspect of the right foot and 5th digit.”[52]
[52]DCB 27
62 Dr Bloom noted that the MRI scan taken on 23 October 2012 revealed:
“… scar tissue distorting the right S1 nerve root.”[53]
[53]DCB 27
63 Accordingly, he considered that the plaintiff presented with mild dysfunction of the low back with clinical evidence of right L5-S1 radiculopathy. Importantly, Dr Bloom noted:
“I gained the distinct impression that this woman presented in a straightforward manner, and I have no reason to doubt her veracity. …”[54]
[54]DCB 28
64 Also, he stated:
“… she reported a high level of physical activity in her personal life, undertaking all of the housework, driving for an hour at a time etc. … .”[55]
[55]DCB 28
65 The plaintiff, for her own part, denies that she undertakes all of the housework in the manner so described, but concedes that she could do it, but chooses not to, for fear of causing pain.
66 Finally, at that stage, Dr Bloom stated:
“From the purely physical perspective, taking into consideration the fact that she did have a significant disc injury that required surgical treatment with resulting permanent radiculopathy, I think that it would be inappropriate to expect her to resume unrestricted pre-injury type duties that were physically very demanding. In other words, she would be able to rehabilitate back to full-time work if the work were suitable and within appropriate conditions and constraints.”[56]
[56]DCB 29
67 Dr Bloom then placed a number of restrictions,[57] and further stated:
“Within these conditions and constraints there would be no contraindication to full-time work duties. However, in view of the prolonged period of absence from the work environment, she should commence work on suitable duties on a part-time basis; say, 4 hours x 3 days per week, increasing to full-time over a period of about 3 months in order to allow for adjustment and work hardening.”[58]
[57]At paragraph 6 of his report
[58]DCB 29
68 Some 21 days later, on 1 October 2014, Dr Bloom was asked to report again. On this occasion, he stated:
“I therefore consider that she does have the capacity to commence such work [light work] for 25 hours per week immediately, with a graduated increase in hours via 30 hours per work up to the 38 hours per week over a 6 month period. … .”[59]
[59]DCB 30
69
For my own part, I cannot follow why the plaintiff could immediately commence
25 hours per work on 1 October 2014, whereas on 9 September 2014, he was recommending 12 hours per work on an immediate basis.
70 In his supplementary report dated 18 April 2015, Dr Bloom noted that the plaintiff had a number of computer and other skills, and that she had achieved a Certificate IV in Business Administration. He considered that this implied that she had transferrable skills and was able to successfully learn and adapt to new tasks.[60]
[60]DCB 31
71 On this occasion, Dr Bloom considered that, once again, she should commence work on suitable duties on a part-time basis, say, four hours by three days per week, increasing to full time over a period of about six months
72 I note that there had been no additional consultation or examination since the last report of 1 October 2014.
73 In any event, Dr Bloom examined the plaintiff again on 3 August 2015. He purported to take into account the enclosed suitable employment report dated 15 July 2015 from the Recovre Group.[61]
[61]Exhibit 6
74 In that report, Dr Bloom stated:
“From the purely physical perspective, in the absence of any adverse psychological response and given the availability of suitable work duties within the listed constraints, I think there is no reason why she could not be working full time. I also think it likely that she is adequately motivated to increase to full-time hours, given suitable work opportunity and availability.”[62]
[62]DCB 36
75 This is the second occasion in which Dr Bloom has remarked on the plaintiff’s bona fide intentions, and I must say that my impression of her in the witness box was similar. I was impressed to the extent, that I did not consider that when given any opportunity to exaggerate, she did not avail herself of that opportunity.
76 Further, Dr Bloom states:
“This woman presents in a straightforward manner, without overt signs of avoidance behaviour. Thus, from the purely clinical perspective, I have not identified any functional component or significant adverse psychological reaction to her physical condition.”[63]
[63]DCB 36
77 Accordingly, the main point of contention in this case was whether, in fact, the plaintiff does have a capacity to increase her hours, say, beyond 21 or 23 hours per week. At the end of the day, in my view, she has just tipped the scales in her favour, for the following reasons:
· First, the plaintiff impressed me as a witness of truth in the witness box and I accept her description of the effect that the 15 hours’ work has had upon her.
· Secondly, in a somewhat unusual situation, the plaintiff has the support of her two contemporary employers in the manner that I have already described, which is consistent with her presentation and her evidence. I should say, in passing, I have some doubt whether either job, given that they have been extended on a semi-charitable basis, could amount to suitable employment. For present purposes, I am content to accept that both jobs do represent suitable employment.
· Finally, Dr Bloom, at his most recent examination, did note that the plaintiff was currently working part-time as a waitress for the hours already stipulated. He recites:
“… She said that this work involves being on her feet the whole time, some walking, and some carrying of trays etc.
Ms Lester said that she has a sitting tolerance of about 30 minutes, and, with regards to standing, she said: ‘I’m on my feet all the time at work.’ She said that she is able to walk for 15 minutes. She said that she is able to bend, because she uses her knees. She estimates that she can lift and carry loads of at least 10kg.”[64]
[64]DCB 34
78
There is no apparent attempt by Dr Bloom to obtain a history as to what effect those duties are having on the plaintiff in terms of pain and ability to perform them, which would perhaps test the evidence provided by Ms Ward and
Ms Abdo.
79 Further, Dr Bloom notes:
“This woman has made considerable efforts to return to alternative employment. She said that she is currently working in the hospitality industry as a waitress on a part-time basis. She said that she would consider all options available to her.”[65]
[65]DCB 35
80 In my view, the plaintiff's presentation would echo that opinion as to the considerable efforts to obtain alternative employment.
81 On balance, I accept the plaintiff’s evidence that she is not able to cope with performing a greater number of hours than she is currently performing, and it follows that she has suffered a loss of earning capacity in excess of 40 per cent, which can readily be expressed at an annual rate, as already demonstrated earlier.
82 Accordingly, leave will be granted to the plaintiff to issue proceedings for loss of earning capacity on account of an injury to her lumbar spine suffered in the course of her employment.
83 Further, consistent with the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle,[66] leave will also be granted for the plaintiff to issue proceedings with respect to pain and suffering damages.
[66][2009] VSCA 170
84
Finally, issues arose about the admissibility of the vocational report of a
Mr Hartley, on behalf of the plaintiff,[67] and reports from IPAR and Recovre on behalf of the defendant.[68] Although none of these reports have been germane to the decision in this case, for the reasons I have attempted to articulate, in deference to counsels’ submissions, I will briefly deal with the submissions.
[67]Exhibit Q
[68]Exhibits 5 and 6
85 I accept defence counsel’s submissions that his reports are tendered not as expert reports but merely as job descriptions which, in turn, are questions of fact and which have not been contested under cross-examination. I accept the submission and those documents will be admitted absolutely on that basis.
86 With respect to the report of Mr Hartley,[69] Mr Hartley sets out his qualifications, which are as follows:
“Certificate of Qualifications, Psychiatric Social Work, Manchester, U.K.
B.A. (Open University, U.K.) Applied Social Science.”[70]
[69]Exhibit Q
[70]PCB 105
87 Mr Hartley’s résumé reads: “Prior to 1993 Paul Hartley worked in Social Work Services in the United Kingdom for six different Local Authorities”, but he does not seem to indicate that he was employed assessing any industrial employment.
88 Further, post-1983, after migrating to Australia, Mr Hartley’s positions included deputy director of social services for the Baptist Union Victoria and special services officer with the Commonwealth Employment Services (CES). It may well be that in this latter occupation, he had some relevant industrial experience.
89 Further, Mr Hartley states:
“Since 1995, Paul Hartley has had extensive experience in the management provision of:
oOccupational Rehabilitation and Job Placement Services …
…
oLabour Market research and analysis.
… .”[71]
[71]PCB 105
90 Then, further, he asserts:
“Over recent years Paul has concentrated on a personalised, yet professional, approach to return to work programs and has developed, and exhibited in his work practices, a sound knowledge of work requirements within a wide variety of industries and professions. He has a particular interest in stress related claims.”[72]
[72]PCB 105
91 Once again, these qualifications have not been tested under cross-examination, but it would appear that in no way do these qualifications, on any analysis, enable him to give the opinions in the “Conclusions” section of his report, wherein he states:
“Due to her lower back injury and its sequelae, she is now highly restricted in her physical abilities and has only been able to undertake restricted employment, in both duties and hours, … .
Having considered medical opinion and other professional opinion, and taken into account Ms Lester’s presentation at assessment, her work related back injury and its sequelae, and the many barriers she faces to being able to gain, undertake or sustain suitable employment, it is my opinion that Mr. (sic) Peta Lester is probably unable to increase her work hours with her current employer beyond her current 10-12.5 hours per week, or the nominated 15 hours per week on her certificate of capacity.
I believe that her restricted work capacity on a limited part time basis in suitable employment would represent a theoretical capacity only, for the reasons outlined in this report, and that should her job with La Porchetta cease, she does not indeed have a capacity for 'suitable duties' and that she would be classified as having no ‘current work capacity' within the meaning of the Accident Compensation Act1985 (as amended).
… Thus I am of the opinion that despite her wish to work, on the balance of probabilities, should she lose or have to cease her current employment, Ms Lester will have no work capacity for the foreseeable future.”[73]
[73]PCB 103
92 I accept defence counsel’s submission that none of these opinions, thus expressed, relate to Mr Hartley’s professional qualifications and, accordingly, although as I have already indicated, the opinions have not been necessary in any event in determining this case, I rule that those opinions expressed therein are inadmissible. It is not necessary for me to find whether he has the necessary qualifications to comment on the transferrable skills with respect to particular job descriptions set out in his report and it may well be that he is suitably qualified to comment about transferrable skills, but for the reasons I have already indicated, I do not find that particular issue to be germane in deciding this case.
93 I will hear the parties as to any subsequent orders.
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