Linklater v Superate Pty Ltd (trading as Myrtleford Foodworks)

[2010] VCC 580

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WODONGA CIVIL DIVISION DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-08-05229

KAYLENE JOY LINKLATER	Plaintiff
v
SUPERATE PTY LTD (Trading as MYRTLEFORD FOODWORKS)	Defendant
(ACN 103 645 969)

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Wodonga
DATE OF HEARING:	3 May 2010
DATE OF JUDGMENT:	27 May 2010
CASE MAY BE CITED AS:	Linklater v Superate Pty Ltd (trading as Myrtleford Foodworks)
MEDIUM NEUTRAL CITATION:	[2010] VCC 0580

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – identification of consequences of organic injury to the lumbar spine – application in respect of loss of earning consequences.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M J Waugh	Harris Lieberman
For the Defendant	Mr W R Middleton SC with	Wisewould Mahony
Ms J M Forbes
HIS HONOUR:

1          In this proceeding, leave is sought by the plaintiff to commence a proceeding claiming damages in respect of the pecuniary loss consequences of a gradual process injury occasioned to her in the course of her employment with the defendant.

2          The defendant concedes that the plaintiff has suffered an injury which has pain and suffering consequences for the plaintiff which are appropriately described as being “serious” pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”). It is in these circumstances that I am called upon to assess only whether the pecuniary loss consequences of the plaintiff’s injury should be categorised as being “serious” pursuant to the provisions of the Act.

3          The injury relied upon by the plaintiff is an injury to her lumbar spine in the form of the aggravation of degenerative changes present in the L4-5 and L5-S1 lumbar discs.

4          In the course of the application, the plaintiff gave evidence and was cross- examined, as did the plaintiff’s general practitioner, Dr Glen Michael Bennie. Otherwise the parties relied upon medical reports and other documents tendered by them which are contained in the Joint Court Book (“JCB”) prepared in this proceeding, together with a number of tendered exhibits.

5          The plaintiff has sworn two affidavits, the first dated 23 July 2008, and the second dated 6 May 2010.

6          In her first affidavit, the plaintiff deposed as follows:

• She was born on 13 February 1973 and was educated to Year 10, at which time she left school and undertook farm work, before the birth of her first child. She said that in approximately 1991, she commenced work at the Myrtleford Foodworks supermarket on a permanent part-time basis and continued in that employment when the supermarket was taken over by the defendant. She described the main task involved in her work as a requirement to stock shelves with produce.

• The plaintiff described the gradual onset of back pain which had developed in the course of her employment to a level of some significance by April 2005. She said that she eventually consulted her general practitioner, Dr Benny, in respect of those symptoms on 2 May 2005, that following this consultation she was off work for three to four weeks, and that she had thereafter returned to light duties. The plaintiff said that she continued working until July 2005 when she described having to lift a box of beer, as the result of which she felt immediate severe pain and was put off work again.

• The plaintiff said that in October 2005, she returned to light work, initially working 4 hours a day, three to four days a week, depending upon her symptoms. She described having good days and bad days and said that she was always suffering from pain, the level of which would fluctuate. She said, however, that by the end of the working week she was usually in greater pain, which often required her to attend her general practitioner.

• The plaintiff said that she had difficulty with prolonged sitting, standing in one place, and lifting and bending. She described herself as being best walking around and being able to sit and stand at will. She said that many activities involved in caring for her four children caused her pain and identified activities, such as getting in and out of a car, shopping and vacuuming as being difficult. She said she avoided heavier housework and that whilst she used to be very independent, she now relied on others to undertake activities of which she was previously capable, such as chopping wood and mowing the lawn.

7          In her second affidavit, the plaintiff deposed to the fact that:

•  Her family had moved from Myrtleford to Queensland to allow her husband to earn greater income by seeking employment as a boilermaker in the mining industry.

•  At the time at which she was injured she was employed by the defendant and was able to work “nearly full-time”. She said that she was keen to work as many hours as she could because the family had undertaken renovations which had substantially increased the existing mortgage.

•  Following her injury and her return to work, she initially started working approximately 12 hours a week; that this was increased to 16 hours per week but that this had increased her level of symptoms; that she had ceased work in August 2007 and that she had not thereafter returned to work.

•  She had enrolled in a Certificate III in Business Administration and that to qualify for the Certificate she was required to complete thirteen subjects. She said that she had completed five subjects, namely workplace health and safety; spreadsheets; simple word processing documents; typing and design, and produce text documents. She said that she was able to type 19 words a minute. She said that she was presently doing a sixth subject – ‘Writing Simple Documents’ – but she was finding this subject difficult to understand.

•  The plaintiff described having problems with prolonged sitting, stating that notwithstanding that she had good days and bad days, she generally became very uncomfortable after 30 minutes of sitting. She said that she took medication in the form of OxyContin – four tablets per day; Endep – one tablet per day; and Panadeine Forte when she required management of breakthrough pain. She said that she also used an anti- inflammatory – Mobic.

•  She had applied for forty or more jobs, that these were jobs which involved casual or part-time work but that she had not been successful in obtaining employment. The plaintiff deposed:

“I would try a job if I could find a light job, but I do not think I could work more than about 16 hours. When I was last working at Superate, I found 16 hours too much. I would prefer to start with something less than 16 hours and see if I could work myself up to 16 hours. I believe in the long-term I will be only fit to work 15 to 20 hours per week. If I try to work longer than that, I believe my back symptoms would get worse.”

8          The plaintiff relies on affidavits sworn by her mother, Pamela Brown, and her husband, Rodney James Linklater. The content of those affidavits is not in issue and demonstrates the logic in the approach taken by the defendant in conceding the serious nature of the pain and suffering consequences associated with the impairment suffered by the plaintiff by reason of the injury to her lumbar spine.

The Plaintiff’s Viva Voce Evidence

9          The plaintiff said that in April 2005 she was living at Myrtleford, that her parents had built a unit on her property, that her mother was available to assist her in caring for her children and that whilst working for the defendant, her hours varied. She was asked, with respect to her pre-accident employment:

Q:	“How many hours would you have taken?---
A:	As many as they would have given me.
Q:	If they decided that they wanted you to work full-time, would you have done that?---
A:	Yes.”

10        The evidence given by the plaintiff relevant to her capacity to work may be summarised as follows:

•  The plaintiff expressed the desire to return to suitable employment. She accepted that a return to full-time employment was a possibility, however she said that she was not very confident of achieving this.

•  The plaintiff accepted that in her pre-accident employment she was paid at the rate of $13.47 per hour and that her present payslip indicated that a Level 3 employee employed by the defendant would presently be receiving $17.53 per hour.

•  The plaintiff said that her husband was working as a boilermaker in the mining industry and that he was employed at a site near Mt Isa. She said that his work involved him being away from home for eight days and then home for six or seven days.

•  The plaintiff said that she was still in receipt of weekly payments of compensation which produced $16,000 to $17,000 per annum.

•  When asked to express her present tolerances for activity, the plaintiff said that she could stand for between 10 minutes and half an hour and that after that time she was looking for a place to sit down by reason of the presence of back and sometimes leg pain. That after walking for 20 minutes she would generally have to sit or lie down and that her sitting tolerance was about half an hour, at which time she had to get up and move around. She conceded however, that she was, on occasions, able to spend up to half a day shopping but that she would “pay for it later … with pain”.

•  The plaintiff said that she was able to prepare the lunches for her children and do the domestic chores which were necessary to see them off to school. That around the house she was able to change the linen, do the washing for her younger children, and undertake activities such as cleaning bathrooms and toilets, cleaning the showers, vacuum cleaning and mopping the floors.

•  The plaintiff said that she was presently enrolled in a Certificate III in Business Administration and that she had successfully completed five of thirteen units required by that course. She said that she had enrolled in a sixth module entitled ‘Write Simple Documents’ and that she was having trouble understanding this module. She said that she did not feel confident in the subject and that she had not been back to TAFE this year because her back had been playing up. She described her purpose in doing the course as one involving a hope of obtaining a job which would not be so physical.

•  The plaintiff said that she had applied for approximately forty jobs which she believed she could perform on a casual basis. She said she did not believe that she could return to work for 30 hours a week but considered 4 hours a day would “probably be plenty”, having regard to her previous experience when she returned to work at Foodworks.[1] When asked to comment as to the difference between the activities the plaintiff undertook whilst working at her computer while studying at home and the activities required of a clerical assistant or a receptionist, she replied:

[1]             Transcript 33. I interpret the plaintiff’s evidence in this regard to have been expressing an opinion that she may have been capable of working 4 hours a day, four days a week.

“I don’t sit at my desk at – on my computer all day at home. I can

get up and go and sit elsewhere or go and lay down.”

• The plaintiff said that whilst studying at the Boyne Island TAFE College, she would take a break every 20 to 30 minutes in the course of a 3-hour unit.

• The plaintiff said that she had successfully completed a Computer Practical Introduction Certificate at the Cairns TAFE, a Receptionist Skills Certificate at the Cairns TAFE and that she had previously completed a Customer Service Skills Certificate which was conducted as an in-house course at Foodworks.

• When the plaintiff was asked whether she would be fit to work as an administrative assistant, a sales assistant or a car rental officer, she replied:

“I don’t really know. I would try it, yes.”

• The plaintiff said she did not return to full-time hours after her injury and that she did not work more than 16 hours per week following her injury. She said that she stopped work in 2007 because her pain was more frequent, that it was occurring all the time and she was having trouble doing her job.

• The plaintiff said that she was presently taking OxyContin, two to four tablets a day, Mobic and the anti-depressant, Endep. That she could not go without her OxyContin and that whilst she had not previously taken Mobic on a daily basis, she had been advised that she should do so.

• The plaintiff said that when her husband was away her pain levels were heightened “because everything is left up to me”.

• The plaintiff agreed that depending on her tolerance, she wished to return to suitable work. She accepted that this might involve a regime of starting part-time and working up to full-time, although about this she said:

“I would like to; I’m not very confident of it, but I would like to.”

• The plaintiff said that before her injury she worked a minimum of 28 hours a week, that she sometimes worked 32 hours a week and –

“I think that when the shop was revamped I could possibly have done more hours.”

• The plaintiff said that immediately before suffering her injury she was living in Myrtleford, that her hours of employment with the defendant varied and that she would have taken as many hours as she was given. She said that had she been offered full-time work, she would have accepted it and that had this offer been made, her mother was available to assist her with the care of her children. She said that her husband was working at the Ovens and Keilor Concrete Plant, that the family had a 50-acre property and that it was their intention to stay in the area and to keep working.

• The plaintiff said that after the accident, on returning to work she carried out light duties which involved putting out light grocery items such as shampoos and conditioners, and undertaking ticketing. She said that she found that working at low levels particularly aggravated her symptoms, notwithstanding the fact that the items she was required to handle were not heavy. She said that when she ceased work in August 2007, and that having ceased work, the fact that she was able to pace herself at home influenced her symptoms in a positive way.

• The plaintiff described her typing speed as 19 words per minute with 100 per cent accuracy. She said that she would require at least 30 words a minute to work as a typist.

• The plaintiff said that on returning to work with the defendant following her injury, she worked up to 16 hours a week at the most, this being 4 hours per day, four days per week:

“But then I think that was dropped back because normally I would

get to the Friday and I’d be back at the doctors again.”

• The plaintiff was asked whether her condition had changed sufficiently since then for her to imagine doing better than that, to which the plaintiff responded “no”.

• As to her present capacity to work in a shop, the plaintiff said:

“If it was up to me I think I would like to start may be at the 12[2] and work my way up to the 16. That, I think, would be a wise way to go I suppose.”

[2]             The plaintiff here was referring to hours per week.

• The plaintiff said that her mental acuity was adversely affected by the medication which she was taking which caused her to feel lightheaded.

• In the course of her evidence, the plaintiff said that immediately before her accident she was being paid at the rate of $13.47 per hour and that she was working between 28 and 32 hours a week. She agreed that had she not been injured, she would have continued to work in the same fashion. She described working the hours that were offered to her and said that at that time the hours suited her purpose and needs.

• The plaintiff was asked:

“Assume, if you would, that you were not injured in April-May of 2005, that for whatever reason your husband was able to find suitable work in Myrtleford, you remained in Myrtleford and that your job at Superate was still available to you, would you have continued to work in the same manner as you did, that is 30 hours a week?---”

To which she responded:

“Yes.”

• This issue was taken up in re-examination, in which the plaintiff was asked whether the hours that she was working immediately prior to her injury varied, in which she responded that the minimum hours that she worked were 28 hours a week and that she could remember working 32 hours some weeks. She said:

“I think when the shop was revamped I could have possibly done
more hours.”

11        Having had the opportunity of listening to and observing the plaintiff as she gave evidence, I formed a very favourable impression of her with respect to both her honesty and her reliability as a witness for the following reasons:

• The plaintiff’s demeanour, which involved the need to regularly change her position so as to sit and to stand and to stretch, both whilst giving her evidence and whilst otherwise present in court, did not appear to be in any way contrived and was, in my opinion, consistent with and supportive of the evidence given by the plaintiff as to the level of pain which she was experiencing.

• The plaintiff’s general preparedness to make concessions as to her capacity to work and willingness to work notwithstanding the fact that she has not worked for some years and has been unsuccessful in obtaining employment, notwithstanding having applied for some forty jobs. In particular, the plaintiff’s evidence, at Transcript 25 through to 27, and at pages 32, 96 and 107, impressed me as evidence which was not seeking in any way to amplify the effect of the plaintiff’s injuries upon her or to promote her cause in this proceeding.

12        My impression in this regard was reinforced by a number of matters which emerged in the course of the evidence, namely:

(i) the fact that notwithstanding the presence of her symptoms following her injury, the plaintiff returned to work and continued to work for a considerable period of time undertaking duties which have been generally regarded by the medical practitioners who have expressed opinions as to the plaintiff’s working capacity as being unsuitable for her. This behaviour, in my opinion, demonstrated a real desire on behalf of the plaintiff to minimize the economic impact of her injury;

(ii) the positive assessment made of the plaintiff by the defendant as to her capacity as a worker prior to her injury, together with the plaintiff’s spontaneous attempts to re-train herself by enrolling in her present Certificate III training course.

The Plaintiff’s Earning Capacity had the Injury not occurred

13        Whilst there appears to be some conflict between the evidence given by the plaintiff as to her plan with respect to work but for the intervention of her injury, namely whether she would have availed herself of further hours of work if they were available to her, I am satisfied that the plaintiff’s evidence that she would have continued to work 30 hours a week[3] was a statement which meant to convey the fact that the plaintiff intended to continue to work at the defendant’s supermarket and not that she had decided that she would limit her work only to 30 hours a week. I make this finding having regard to the evidence given by the plaintiff to which I have previously referred[4] and also by reason of the fact that it is consistent with the plaintiff’s work pattern prior to her injury which revealed a pattern of working on occasions more than 30 hours per week, which supports of the plaintiff’s evidence of an intention to work the hours which were made available to her.

[3]             Transcript 98

[4]             Transcript 101

14        The evidence of the plaintiff as set out in her two affidavits, together with that of her mother and her husband, make it clear that prior to sustaining injury in the course of her employment with the defendant, the plaintiff was a strong and active person who coped with the physical demands involved in managing a household and a family, working for the defendant, maintaining with her husband a 50-acre property, and pursuing her hobby of horse riding. I am satisfied, in these circumstances, that the plaintiff possessed the physical capacity to work on a full-time basis if full-time work was available to her in the course of her employment by the defendant and that her social situation in which she was supported in managing her family by the presence of her mother, allowed her to do so.

15 In assessing the plaintiff’s capacity for work but for the intervention of her injury, I am required by the provisions of s.138AB(38) of the Act to assess the gross income which the plaintiff “was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred”.

16        In the circumstances of the present case, I am satisfied that as at the date of her injury, the plaintiff had a capacity to work on a full-time basis for 38 hours per week and that it was her desire to do so.

17        In a letter dated 7 May 2010, Mr Frank Devries, the Human Resources Manager for the defendant, states:

“Were Kaylene still able to work in the store, her duties would most likely not have changed. There is very little movement from part-time to full- time in any of the nine supermarkets under our management.”[5]

[5]             JCB 282

18        No evidence has been adduced as to whether full-time work may have been made available to the plaintiff but for the intervention of her injury, other than the statement made by Mr Devries in the letter to which I have referred. It is clear however, that the plaintiff was a highly-regarded employee.[6] At the time of her injury, the plaintiff was employed at a Level 3 classification which was described by Mr Devries in his letter as being a discretionary level assigned by the store manager and as being above the standard Level 2 for employees such as the plaintiff who did not have supervisory responsibilities. Mr Devries described this as a highly unusual situation and this evidence supports the view I have formed that the plaintiff was extremely well regarded by her employer and clearly more so than her replacement worker who is employed at a Level 2 classification.

[6]             See the Statement made at JCB 254.5

19        Whilst in these circumstances, the fact that the plaintiff’s replacement worker has not been offered full-time work does not speak authoritatively as to the plaintiff’s position had she continued in employment with the defendant, the plaintiff has not satisfied me that she would necessarily have been offered a full-time position but for the intervention of her injury.

20        Taking into account however:

(i)	the plaintiff’s evidence that she would have worked on a full-time basis if those hours were available to her, which I accept for the reasons I have earlier given;
(ii)	the plaintiff’s evidence that additional hours of work may have been available to her when the shop premises were “revamped”;[7]
(iii)	the fact that as a highly-regarded employee, it is likely, in my view, that if additional hours were available, the defendant would have offered those hours firstly to the plaintiff,

[7]             Transcript 99

in undertaking the task required of me by the Act of assessing the income the

plaintiff would have been capable of earning as is most fairly reflected by her

earning capacity had the injury not occurred, I am satisfied that, as at the

date of her injury and during the relevant period thereafter, the plaintiff had a

capacity to work on a full-time basis in a Level 3 classification and that I

should fix that capacity as most fairly reflecting her earning capacity had the

injury not occurred.

The Plaintiff’s Present Capacity to earn Income in Suitable Employment

21        The plaintiff gave evidence as to her present tolerance for standing and sitting in the following terms:

• She could stand for between 10 minutes and half an hour depending on her symptoms, which varied on a day-to-day basis. She said that after those periods “I am looking for somewhere to sit down”.[8]

• The plaintiff described her walking tolerance as approximately 20 minutes and that after 20 minutes “I would need to sort of stop and have a rest or sit down or it just starts to aggravate”. She said that after 20 minutes she generally sat down or lay down.[9]

• The plaintiff described her sitting tolerance as being about half an hour, at the expiration of which time she would be required to get up and move around.[10]

• The plaintiff said that whilst she was able to go out doing the banking and the shopping for periods up to 4 hours, that “I pay for it later … with pain … I try not to, I just do it when I have to”.

• The plaintiff said that her husband was presently working as a boilermaker at a mine in Queensland and that in this occupation he spent approximately eight days working and six days at home. She said that she was required to care for the three children who continue to reside with her without the assistance of her husband when he was away at work and that she undertook the domestic chores necessary to see the children go to school, the meal preparation, the cleaning of the house, which included cleaning the bathrooms and vacuuming, and that although she was assisted in some of the tasks by her children, she was the mainstay of that operation.

[8]             Transcript 26

[9]             Transcript 26

[10]           Transcript 26

22        It is submitted on behalf of the defendant that this latter evidence given by the plaintiff as to her capacity to manage her household responsibilities indicated a present capacity for work of at least 28 or 30 hours per week, and perhaps full-time work.

23        The plaintiff however, gave evidence that at the present time, in the absence of assistance from her husband and her mother, her responsibilities as a mother aggravated her pain. In this regard, I note the plaintiff’s evidence as to the contrast between this position and the position prior to leaving Victoria in which, by reason of the assistance which was available to the plaintiff, her symptoms were influenced in a positive way by her ability to pace herself at home.[11]

[11]           Transcript 103-104

24        The plaintiff also described the practice employed by her when studying at home for her Level III Certificate in which she could “get up and go and sit elsewhere or go and lay down”.[12]

[12]           Transcript 34

25        Having regard to the plaintiff’s demeanour in court in respect of which I have earlier commented; the evidence to which I have referred as to the practice she employs whilst working at her computer; the fact that the plaintiff continues to employ powerful narcotic medication in the form of OxyContin in order to manage her symptoms of pain; the evidence given by the plaintiff to which I have previously referred as to her standing, sitting and walking tolerances, I am not satisfied that the evidence given by the plaintiff as to the work she undertakes around her house provides any real guidance as to her ability to regularly meet the physical demands which would be imposed upon her in the workplace.

The Medical Evidence as to the Plaintiff’s Capacity for Work

26        In a report dated 14 January 2008, Dr Glen Michael Bennie, general practitioner, expressed an opinion that, as at that time, the plaintiff was significantly incapacitated by back pain and was unable to return to work.

27        Dr Bennie gave evidence in the course of the application. In his evidence-in- chief, Dr Bennie gave evidence that when he last saw the plaintiff in late 2008, he did not think her condition had changed significantly from that about which he had opined in his report of January 2008, at which time he had opined that the plaintiff was not fit for work. In cross-examination however, Dr Bennie volunteered that in October 2008, he considered the plaintiff capable of doing sedentary work and that this position had maintained since May 2008.

28        Generally, I found the evidence given by Dr Bennie as to the plaintiff’s capacity to work to be unreliable. No satisfactory explanation emerged in the course of his evidence which justified the change in his opinion as to the plaintiff’s capacity for work in October 2008. Further, the opinion expressed by Dr Bennie that the plaintiff was suffering from symptoms which were mainly functional in origin, was hard to reconcile with his practice of prescribing OxyContin for the management of the plaintiff’s symptoms of pain and gave me little confidence in the evidence he gave as to the aetiology of the plaintiff’s symptoms.

29        For these reasons, I find the evidence of Dr Bennie to be of little assistance in the task which I am required to undertake, namely to determine the plaintiff’s present capacity for work. I accept however, that Dr Bennie held a genuine opinion that the plaintiff suffered from significant pain in her back and that her regular presentation to him was one which demonstrated a pattern of obvious discomfort and distress associated with that pain.

30        In a report dated 27 February 2006, Dr Warren Seager, an orthopaedic surgeon, expressed the opinion that the plaintiff’s employment had aggravated the degenerative condition present in her lumbar spine and that whilst her current capacity for work was unknown, she was in general unfit for work involving heavy lifting, repetitive bending or sitting for prolonged periods.

31        Mr T Hillier, the plaintiff’s treating orthopaedic surgeon, as at 5 February 2007, commented as to the plaintiff’s capacity for work in the following terms:

“I would be cautious about permitting her to return to her pre-injury employment where she would be stacking products at low level as well as above height but, I would see her as well able to cope with that work in the span from knee level to shoulder level and would see her as being well capable of performing checkout duties and other supermarket tasks.

She would have a continued lifting restriction of 15 kilograms, given that she does have proven two-level discogenic pain.”

32        In a certificate dated 27 February 2008, a Medical Panel comprising of four members expressed the opinion that the plaintiff had no current capacity for work and that this situation was likely to continue indefinitely.

33        In a report dated 6 August 2007, Mr Clive Jones, orthopaedic surgeon, obtained from the plaintiff a history that she was at that time working a 16-hour week. He expressed the opinion that:

“… her employer cannot offer her lighter work. I think it is unlikely she will be capable of increasing her employment hours and get back to such tasks as working on the registers.”

34        Mr Jones identified secretarial or receptionist duties as being suitable for the plaintiff and expressed the opinion:

“This lady is not incapable of employment and is working at present, but I think it is likely given that her symptom levels have not really changed over the past two years in any great degree, that her symptoms will continue indefinitely.”

35        In a subsequent report dated 6 May 2010, Mr Jones expressed the opinion that the plaintiff could work as a receptionist, administrative assistant and car rental officer and opined that a part-time approach to this employment was preferred, with the plaintiff slowly increasing her hours as familiarity with the job and its tasks were gained.

36        On 28 November 2007, Mr John O’Brien, orthopaedic surgeon, expressed the opinion that the plaintiff presented with symptoms consistent with underlying pathology which was discogenic in origin, that she was significantly disabled and was not at that time capable of even limited light duty employment.

37        In a report dated 8 May 2010, Mr O’Brien opined that the plaintiff was not totally incapacitated and that her current level of disability was such that she would not be capable of pursuing full-time employment. Mr O’Brien expressed what I regard as being a highly qualified opinion as to the plaintiff’s present capacity for work commenting that, even if such work was confined to light modified duties –

“… ‘it could be possible’ that this patient may be capable of undertaking light duties on a part-time basis, such as 20 hours per week. I believe that such an arrangement would not preclude the possibility of a further aggravation of symptoms.”[13]

[13]           JBC 76.3

38        In a report dated 27 April 2010, Mr Stephen Leitl, orthopaedic surgeon, expressed a similarly qualified opinion to that of Mr O’Brien, commenting:

“She is re-training to administration with a view to undertaking secretarial work. Provided she was able to obtain employment that allowed her to frequently change postures and avoid any bending, lifting or twisting her spine, I would assess that she would have a capacity for perhaps half- time secretarial work.”[14]

[14]           JCB167.6 - 167.7.7

39        The reports to which I have referred indicate a generally consistent approach by the medical practitioners who have recently assessed the plaintiff, namely one in which they recognise a retained capacity in the plaintiff for work which should be exercised at the very least initially on a part-time basis.

40        A more extreme position as to the plaintiff’s capacity for work was expressed by Mr Graeme Brazenor, neurosurgeon, in his report dated 7 May 2008, and by Mr Tony Blue, orthopaedic surgeon, in a series of reports dated 5 November 2009, 21 December 2009, 28 January 2010 and 15 March 2010. Each of these practitioners asserted with considerable vehemence that the plaintiff was fit for full-time employment.

41        Accepting, as I have, that the plaintiff suffers from organic symptoms of pain which incapacitate her to the level about which she has given evidence, I do not find the opinions expressed by Mr Brazenor and Mr Blue persuasive as to the plaintiff’s capacity for work.[15]

[15]           Mr Brazenor commenting that the plaintiff had a capacity for full-time restricted work; Mr Blue opining that the plaintiff had a capacity to undertake her pre-injury duties on an unrestricted basis.

42        In the course of expressing their opinions as to the plaintiff’s capacity for work, a number of the doctors have endorsed the recommendation of Ms Jean McMahon, a rehabilitation consultant, in a report dated 17 March 2009 which asserts that the plaintiff’s skills are such that she would have –

“a realistic ability to return to work in the roles of:

ƒ a receptionist

ƒ administration assistant

ƒ car rental officer.”[16]

[16]           JCB 245

43        Whilst medical opinion as to the physical capacity of the plaintiff to work in specific occupations, when considered in combination with a vocational assessment as to the plaintiff’s capacity to meet the requirements of a particular occupation, may be of considerable assistance to a court required to assess the plaintiff’s post-accident capacity for remunerative employment, such opinion is only persuasive if:

(i)	a rehabilitation consultant, when assessing capacity for employment and identifying fields of employment which fall within the plaintiff’s capacity, makes appropriate recommendations based upon an informed analysis of the plaintiff’s level of intelligence, her education and her work experience
(ii)	medical practitioners when expressing opinions as to the capacity of the plaintiff to meet the physical requirements of a particular occupation, take appropriate account of the physical demands involved in the work in question.

44        Expert opinion which is expressed in the presence of a failure to take proper account of such matters is, however, of little assistance because it is uninformed.

45        In her report, Ms McMahon identifies the fact that both the positions of administrative assistant and of receptionist required the applicant to possess a Certificate III in Business or Business Administration. At the same time, Ms McMahon identified the fact that the plaintiff’s numerical awareness had been rated as being on the 35th percentile and that her word-meaning competence had been assessed as being on the 55th percentile. Ms McMahon then commented upon the likelihood of the plaintiff having the capacity to successfully complete her Level III Certificate in the following terms:

“The results of the tests indicate that Ms Linklater may be capable of

undertaking re-training at a Certificate III level.”

46        When this conclusion by Ms McMahon is considered in the context of the plaintiff’s sworn evidence, which I accept, that notwithstanding the fact that she has to date successfully completed five of the thirteen units involved in her Level III Certificate III, she was having trouble understanding the sixth unit which involved writing simple documents, and she had not attended her TAFE course this year because –

“… my back has been like playing up a lot more and I don’t feel confident

in the module that I am doing at the moment.”

I am satisfied that the plaintiff is unlikely to complete the Certificate III pre- requisite for employment as a receptionist or administrative assistant and that it is inappropriate to nominate those occupations as being within the plaintiff’s employment capacity as defined by the Act.

47        As to the position of car rental officer, I note that the only advertised position for this occupation which was identified by Ms McMahon required the applicant to obtain a medical clearance for the work and to carry out, amongst other activities, the detailing of cars. In my opinion, the failure by Ms McMahon to refer to these requirements in the advertised position which she recommended as being suitable for the plaintiff,[17] undermines both her opinion and those of the medical practitioners who have relied on that opinion in expressing the view that the occupation of car rental officer was within the plaintiff’s capabilities. Having regard to the plaintiff’s evidence as to her tolerance for physical exercise, I would be surprised if any medical practitioner who has expressed an opinion as to the plaintiff’s capacity for work[18] would support the position that the plaintiff was fit to engage in work which required her to detail cars or that she would necessarily obtain the medical approval which may be required for such employment.

[17]           Neither does Ms McMahon suggest that the requirement to detail cars in the advertised position was an activity which was normally outside the range of the activities which may be required in that occupation.

[18]           With the exception of Mr Tony Blue, whose opinion as to the plaintiff’s capacity to work I do not accept for the reason that it is extreme and out of keeping with the opinions of all other medical experts who have opined on this issue.

48        In considering the various medical opinions relied upon by the parties in the context of the viva voce evidence given by the plaintiff as to the level of her symptoms and physical capacities, I consider that the reports of Mr Leitl and Mr O’Brien contain the most balanced and persuasive analysis of the plaintiff’s capacity to work, particularly by reason of the fact that these reports were generated from the most recent of the medical examinations conducted upon the plaintiff.[19]

[19]           In contrast to these the opinions, I note the apparent deficiency in the history taken by Mr Jones in his most report dated 6 May 2010 in which he:

49        In contrast to these the opinions, I find the report dated of Mr Jones dated 6 May 2010 less persuasive, given:

(i)	the apparent deficiencies in the history taken by Mr Jones in which he makes no mention of the plaintiff’s continuing use of OxyContin and fails to obtain any history as to the plaintiff’s tolerance to activity;[20]
(ii)	the fact that without any explanation or apparent justification Mr Jones alters his previously expressed opinion that the plaintiff’s employment continued to be implicated in the cause of her symptoms.

[20]           The history taken by Mr Jones in this regard is to be contrasted with the more detailed histories taken

50        The medical evidence to which I have referred satisfies me that the plaintiff does retain a capacity to perform light, selective duties which would allow the plaintiff to frequently change postures and avoid bending, lifting or twisting as described by Mr Leitl in his report dated 27 April 2010.21 Whilst Mr Leitl identified a secretarial position as potentially being suitable for the plaintiff, this was not a position identified by Ms McMahon as being suitable for the plaintiff, and I am satisfied that the plaintiff’s poor typing speed would make it extremely unlikely that such a position would be offered to her or that it could be appropriately described as being within her capacity.

51        Taking into account:

• the plaintiff’s evidence as to her tolerance with respect to standing, sitting and walking;

• the plaintiff’s post-accident employment history with the defendant in which, notwithstanding the fact that she was performing relatively light duties, she was unable to regularly carry out these duties for 16 hours per week;

• the caution exhibited by both Mr O’Brien and Mr Leitl, in expressing their respective opinions as to the hours that the plaintiff may be able to work,

I am satisfied that it is appropriate to fix the plaintiff’s present capacity for work

as being one which would allow her to regularly work 16 hours per week

undertaking duties of the type described by Mr Leitl. In this regard, I am of the

opinion that given that the job description adopted by Mr Leitl involved lighter

by both Mr Leitl and Mr O’Brien.

1. I interpret Mr Leitl’s opinion in this regard as being consistent with that of Mr O’Brien.

   duties than which the plaintiff was required to undertake upon her post-

   accident return to work with the defendant in which she was unable to

   regularly work for 16 hours a week, that a capacity for work in light forms of

   employment for 16 hours per week is an appropriate assessment of the

   plaintiff’s permanent post-accident working capacity.

   52        In fixing this capacity, I take into account:

(i)	the plaintiff’s evidence as to her present capacity to sit, stand and walk;
(ii)	the fact that the plaintiff is a regular user of OxyContin and that the use of that medication was described by the plaintiff as having the following effect on her mental acuity:

“It sort of makes my head go funny. I don’t know how to describe
it, it just sort of makes you feel very – I suppose lightheaded … .”;

(iii)    the plaintiff’s post-employment history to which I have previously referred, in the course of which she was unable to maintain a regular work program of 16 hours per week;

(iv)    the plaintiff’s evidence that it was her assessment that she may be able to work up to 16 hours per week.[22]

[22]           T 107

53        I do not consider it appropriate to assess the income available to the plaintiff in restricted employment as that available to an administrative assistant, receptionist or car rental officer for the reasons I have previously given. Rather, I am of the opinion that the wage presently available in employment as a Level 3 worker employed under the current MGAV Agreement, being $17.53 per hour, represents a reasonable assessment of the wage which the plaintiff might attract, having regard to her employment history, her level of education and her physical tolerances.

54 In undertaking the assessment required by s.134AB(38)(f) of the Act:

(i) I fix the plaintiff’s gross income which she is capable of earning in suitable employment at the present date as follows:

16 hours per week at $17.53 per hour = $280.48 per week.

(ii)     I further fix the income the plaintiff would have been capable of earning from personal exertion as most fairly reflects her earning capacity had the injury not occurred as follows:

38 hours per week at $13.47 per hour = $511.86 per week.

55        On the basis of this analysis, I am satisfied that the plaintiff is, and will continue permanently to suffer a loss of earning capacity which will be productive of a financial loss of more than 40 per centum of her pre-injury working capacity as assessed pursuant to the provisions of the Act.

56        Finally,

(i)	having regard to the concession by the defendant that the plaintiff has suffered an injury which satisfies the pain and suffering criteria of the Act, I am satisfied that the plaintiff’s physical incapacity is permanent and that her capacity for work in restricted employment which I have found to presently exist is permanent; and
(ii)	for the reasons earlier given, I am satisfied that notwithstanding that the plaintiff is presently continuing to pursue a Certificate III qualification, it is appropriate to assess her present capacity as representing her capacity for employment after retraining or rehabilitation as defined by the Act.

57        In the circumstances, I am satisfied that the plaintiff is entitled to an order in the terms sought by her. I will hear the parties as to the precise form of the order which is to be made and also upon the issue of costs.

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• makes no mention of the plaintiff’s continuing use of OxyContin;

• fails to obtain any history as to the plaintiff’s tolerance to activity;

• without any explanation or apparent justification alters his previously expressed opinion that the plaintiff’s employment was implicated in the cause of her symptoms.