Lucas v Victorian WorkCover Authority
[2019] VCC 1444
•11 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00186
| KERRYN LYN LUCAS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2019 | |
DATE OF JUDGMENT: | 11 September 2019 | |
CASE MAY BE CITED AS: | Lucas v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1444 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – pain and suffering and loss of earning capacity – pain and suffering conceded
Legislation Cited: Accident Compensation Act 1985, s135AB
Cases Cited:Richter v Driscoll [2016] VSCA 142; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave granted to the plaintiff to bring a proceeding for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Ms M Tsikaris | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Kerryn Lucas seeks leave to start a proceeding for pain and suffering and loss of earning capacity against the defendant under s134AB of the Accident Compensation Act 1985 (“the Act”). She relies on sub-paragraph (a) of the definition of “serious injury”, which is the permanent impairment to part of her spine, the lower back. At the start of the hearing, the defendant conceded she should receive leave for the pain and suffering aspect, leaving the loss of earning capacity issue for determination.
2 The remaining is complicated. Ms Lucas suffered an injury to her lower back in 2011, suffered a second injury to her lower back in 2016 and then injured her left shoulder in 2018. The parties agree I should confine myself to the loss of earning capacity consequences of the 2011 injury and ignore the rest.
Circumstances
3 Ms Lucas is now fifty-seven. She has four adult children. Her formal education was limited, leaving school during Year 10. After various jobs interspersed with raising her children, she joined Menarock Aged Care Services (Templestowe) Pty Ltd (“the employer”) in 2008 as a personal care attendant. Immediately before that, she did the books for her husband’s business. He ran a Jim’s Mowing Service. The employer ran an aged care facility in Templestowe. In 2008, she obtained a Certificate III in Aged Care.
4 As a personal care attendant, Ms Lucas got patients out of bed, showered them, assisted in their hygiene and dressed them, fed the bed-ridden, helped patients into wheelchairs for lunch using a lifting machine, made beds and turned patients over every two or three hours. It was a physically demanding job.
6 May 2011
5 On 6 May 2011, with the help of a fellow employee, Ms Lucas was helping a patient into a “stand-up” machine so she could shower. The patient resisted as Ms Lucas supported her and she experienced excruciating pain in her back. She went to a chiropractor that day.
6 The next day, Ms Lucas saw her general practitioner, Dr Nazmul Hoque, who referred her to Hills Physiotherapy. She first attended on 25 May 2011.[1] The treatment focussed on relieving her joint stiffness and muscle spasm. The physiotherapist identified a separate injury arising out of the incident: costovertebral joint sprain. Overall, physiotherapy achieved some success, in that she returned to work on 8 August 2011 on light duties with gradually increasing hours. She did not regain her pre-injury hours of work until late 2012. She left that physiotherapist because of the harshness of the treatment.
[1]Report dated 13 May 2017.
7 During the rest of 2011, Dr Hoque, or his colleagues in the clinic, attended Ms Lucas on 22 occasions, prescribing Tramal, Voltaren, Naprosyn or Crestor. Tramal was prescribed the most, with Crestor on one occasion. Ms Lucas visited her general practitioner frequently during 2012, 2013, 2014 and 2015 about her back. It became less so in 2016. Similarly, the number of prescriptions for pain-relieving medicines fell away in 2016 compared with the previous years.
8 Meanwhile, in June 2011, CT scans were taken and showed evidence of a right paracentral disc prolapse superimposed on a broad-based disc bulge at the L5‑S1 motion segment and with contact with the right S1 nerve root.
9 On 8 August 2011, Ms Lucas returned to work, two hours a day and three days a week. Her duties were very light, mainly talking to residents or, as she put it, working with the Life and Leisure girls. She returned on a return to work plan. Gradually, her hours increased. She was reporting to the Leisure and Lifestyle co-ordinator. After one of her fellow employees left, she was offered, and accepted, a position in the dementia specific unit. Later, the co-ordinator of the Life and Leisure section left and Ms Lucas was offered the position and she accepted. Before this appointment, she obtained a Certificate IV in Leisure and Lifestyle. Despite her title, she really co-ordinated no one. Ultimately, in this position, she worked 69 hours each fortnight with a three-day weekend every fortnight. She never returned to work as a personal care attendant.
10 On 16 August 2011, Mr Richard McArthur, orthopaedic surgeon, examined Ms Lucas at the request of an authorised agent.[2] Although it is unclear from his report, Mr McArthur must have seen the report of the CT scans and diagnosed, mainly, a minor L5-S1 disc prolapse.
[2]Report dated 16 August 2011
11 His physical examination revealed:
“Spinal contour was normal, as was gait and heel-toe walking. There was no specific lumbar or buttock tenderness.
Forward flexion was limited to half normal by mild discomfort in the low lumbar region.
Lateral flexion and extension approximated two-thirds of normal, whereas rotation was full.
Straight leg raising and peripheral neurological examination in the lower limbs were normal.
There was no thigh or calf atrophy measured 15 cm above or below the mid-patella. Both hips were clinically normal.”
12 Dr Hoque referred Ms Lucas to an orthopaedic surgeon, Mr Justin Hunt, who examined her on 23 August and 19 September 2011. By 23 August 2011, she had returned to work on restricted hours and days. She had received physiotherapy and taken analgesics. She complained of pain across the lumbosacral junction, with past radiation down the posterior aspect of her right leg. The pain in her back was more significant than that in her leg.
13 Mr Hunt’s examination was normal except for hamstring tightness at 60 degrees with straight leg raising. She had a good range of back motion. She had a good range of motion with her hips and knees. Her lower limbs were intact neurologically. Even her lumbar region was not particularly tender to palpation.
14 If one compares the report of the CT scans taken on 27 June 2011 with Mr Hunt’s comments, he must have viewed the scans, for he saw only evidence of a right paracentral disc prolapse superimposed on a broad-based disc bulge at the L5-S1 motion segment with contact in the right S1 nerve root. He suggested MRI scans.
15 On 5 September 2011, MRI scans were taken.[3] The report spoke of minor disc desiccation and disc bulging, with minimal thecal and nerve root encroachment. There was no mention of a prolapse. Regarding the L5-S1 disc, the report said:[4]
“… there is a minimal central disc bulge. Minor thecal and nerve root encroachment. Moderate foraminal narrowing. Facet arthropathy.”
[3]Plaintiff’s Court Book (“PCB”) 51
[4]PCB 51
16 Both sets of scans showed degenerative changes in her lumbar spine. To Mr Hunt, the injury sustained on 6 May 2011 was an aggravation of pre-existing degenerative changes in her lumbar spine with the aggravation causing back and leg pain where neither was present shortly before.
17 Mr Hunt did not see Ms Lucas again after September 2011. He did not recommend surgery to her. He is the only orthopaedic surgeon she has seen for treatment for her back.
18 On 12 October 2011, Ms Lucas returned to a physiotherapist. It was not Hills Physiotherapy but Berwick Physiotherapy.[5] Her condition had worsened since her first visit to Mr Hunt. She complained of intermittent low back pain of a deep, sharp nature on both sides with radiation into the left and right posterior thigh areas. Her movements were restricted: flexion (half of normal); extension (quarter); left and right lateral flexion (quarter); left and right rotation (three-quarters); and straight leg raising to 80 degrees for both legs. There was no muscle spasm. She received physiotherapy treatment until 31 July 2013 when she stopped because the Authority ceased paying and she was undergoing acupuncture. She could not afford both. By the time Ms Lucas stopped physiotherapy, her condition had improved significantly. She had returned working 32 hours each week. It was not her pre-injury duties. She did not do heavy lifting or bending. She still took medicines for pain relief.
[5]Report dated 8 July 2013
19 In December 2012, Ms Lucas went to an acupuncturist, Cong Qi Chen.[6] She gained some improvement in her range of movement, pain relief and reduction in medicines to relieve her pain. She attended for “quite a few months”. She stopped because Dr Hoque recommended she do so and continue physiotherapy.
[6]Report dated 8 July 2013
20 Since 2014, Ms Lucas worked as a “leisure and lifestyle co-ordinator”. On average, she worked 69 hours each fortnight. As this co-ordinator, she organised activities for residents individually and in groups. These activities included arts and crafts, puzzles, going for walks within the grounds, setting up rooms, organising musical activities including singing and playing. There were special excursions and drives. She also monitored a budget, developed and revised lifestyle plans.
21 In the year leading up to this incident, Ms Lucas had reduced her medicines. At times, she managed at work by changing her duties to cope with her back. In 2015-2016, she worked 1,481 hours with 101.5 hours for sick leave. She took sick days when she desperately needed them and did not get colds. The medical records show four attendances on her general practitioner in 2016 leading up to the August 2016 incident with only one concerning her back. Absences from work due to her back were infrequent leading up to the 2016 incident.
22 During 2016 and until 16 August 2016, Ms Lucas did attend the clinic on four occasions. Only one visit concerned her back. On 23 February 2016, Dr Hoque noted:[7]
“low back pain
acute flare up.”
[7]Defendant’s Court Book (“DCB”) 453
23 On 7 June 2016, Ms Lucas attended a chiropractor, Matthew Warren. She complained of lower back and mid-thoracic pain and sciatic pain, greater on the right than the left. Treatment reduced her symptoms. She returned in August 2016 following her fall.
24 During 2015, Dr Hoque referred Ms Lucas to another doctor, Dr Gavin Weekes, a pain specialist. Dr Weekes arranged a bone scan and MRI scans because of her complaints of low back pain extending into both legs. The bone scan showed very marginal degenerative changes at the adjacent L5 and S1 vertebral body endplates. The MRI scans showed little abnormal, with the radiologist commenting there was no evidence of a prolapse in any lumbar disc or evidence of stenosis.
11 August 2016
25 On 11 August 2016, Ms Lucas was helping to fill a fish tank in a resident’s room. The resident’s wife was holding the hose. Ms Lucas stepped onto a balcony of the room to turn on the tap when her right leg went through the floor of the balcony up to her knee. The balcony is about twenty feet above the ground. She grabbed onto an air conditioner with her left hand to prevent her falling. She hung on, calling out for help. Ultimately, a maintenance worker helped her up and back into the room.
26 Ms Lucas saw Dr Hoque on 15 August 2016. Part of his note reads:[8]
[8]DCB 454
“Pain in the back – continuous all the time.
injured herself on 11/8/2016 at work whilst she was walking on the verandah, which gave way all of a sudden.
Stressed and anxious –
fear about the devastating consequences of fall from that height.
No sign of radiculopathy. Normal muscle strength and reflexes. Acceptable flexion at the lumbar spines (sic) but become stuck on coming up. On some NSAID.
... .”
27 Dr Hoque prescribed Naprosyn.
28 Ms Lucas told Dr Hoque she was planning to see a chiropractor. She went to Dr Warren that month.[9] She had seen him earlier, on 7 June 2016. His report contains a comparison of her condition. On 7 June 2016, he noted:
“Mrs Lucas stated the onset of the pain was in 2010-11 following lifting a very heavy patient in her workplace. She said that after the acute onset had resolved she was left with a dull constant ache that was aggravated by cold weather and bending and relieved by lumbar spine extension and raising her right hip. Initial response to care was quite good with reduction of her symptoms.”[10]
[9]Report dated 21 February 2017
[10]PCB 28
29 After the incident:
“Mrs Lucas presented again in August 2016 following falling through a balcony at her workplace. She was suffering from acute lumbosacral pain and left shoulder pain where she had put her arm out to save herself when falling. My diagnosis was an acute exacerbation of her chronic lumbosacral mechanical joint dysfunction with associated myofascial pain syndrome involving the gluteal, piriformis and lumbar paraspinal muscles.”[11]
[11]PCB 28
30 Dr Warren treated her on ten occasions, with the last on 8 November 2016.
31 On 3 October 2016, Ms Lucas returned to work, working two or three hours on each of two days each week. On advice, the employer bought ergonomic equipment to enable her return. Gradually, her hours and days increased ultimately reaching nine days per fortnight with restrictions on lifting, pulling, pushing and twisting. With a limit of five kilograms for pushing and pulling, it meant she could not push or pull wheelchairs with patients in them.
32 Dr Hoque arranged MRI scans of the lumbar spine. These occurred on 27 October 2016. Each lumbar disc was examined. In none was there evidence of central canal or neural foraminal stenosis. In L1-2, there was a minor broad-based bulge. In L2-3 to L5-S1, there were mild broad-based bulges. In L3-4 and L4-5, there was mild bilateral facet joint arthropathy. In L5-S1, the arthropathy was described as “mild to moderate”. Overall, the radiologist noted there was no significant nerve root contact.
33 On 10 November 2016, Dr Hoque referred Ms Lucas to a pain specialist, Mr Robert Gassin. Between December 2016 and April 2017, she attended a pain management programme at the Victorian Rehabilitation Centre.
34 By 24 November 2016, Dr Hoque was seeking home help for Ms Lucas. Dr Hoque was twice contacted by an occupational rehabilitation consultant, Christopher Chang.
35 In April 2017, Dr Hoque referred Ms Lucas to a psychologist to deal with her pain, who she saw in May 2017.
February 2018
36 During February 2018, Ms Lucas hurt her left shoulder. She used a minibus for her work. She would get into the driver’s seat by pulling herself inside the cabin by gripping the centre console. There was no particular incident.
37 Ms Lucas was referred to an orthopaedic surgeon, Mr Eden Raleigh. On 8 August 2018, her AC joint was injected with cortisone. It was unsuccessful. On 14 August 2018, an arthroscopy was attempted by Mr Raleigh:[12]
“… I found that on examination she had a very stiff shoulder in fact she was only elevating to about 130 degrees which was consistent with a capsulitis which was not really present before.
A capsulotomy was performed as we were not able to pass the arthroscope without opening the joint, so anterior, posterior and superior capsulotomies were performed and a decompression and AC joint resection was performed.
The other findings were severe AC joint arthritis and impingement.”
[12]Report dated 22 December 2018
38 Mr Raleigh reviewed Ms Lucas on 21 November 2018 and found her shoulder was “pretty good” with almost normal passive range of movement, being only a few degrees off normal activity.
39 Ms Lucas told him of the employer’s advice she could not return to work unless she was completely fit and without any restriction upon her ability to work. He told her it was not a good idea to return to work as it might take up to twelve months, given she had a capsulitis together with the AC joint and impingement issue.
40 Between 2011 and 2018, government accreditors considered there were not enough outings and activities for the residents. This was due to her back injury.
41 By 2018, Ms Lucas had stopped bowling with the residents because of the bending. There were days when she could not paint their nails because she could not lean forward and reach. There were days when she struggled, went to the resident’s rooms and simply talked to them. She could not do other activities because of her back. She would set up a craft activity for the residents, leave them unsupervised and go and lie on a vacant bed. She would hide in her office to rest her back. She had a physiotherapist rub her back at work to get her through the day. She did her best but it was unsatisfactory from her perspective. Although she got back to full hours she struggled.
Dr Hoque
42 The plaintiff’s court book contains six reports of Dr Hoque. In one, he wrote on 24 May 2019 to a case manager, presumably at the authorised agent, seeking physiotherapy for Ms Lucas.[13] In his brief letter, Dr Hoque links the need for physiotherapy to the 2011 incident, implying her condition is neither new nor a re-aggravation of the original injury.
[13]PCB 30b
43 The defendant’s court book contains a certificate of capacity from Dr Hoque. He certifies a capacity for suitable employment relating to the back but mentions only the 2016 incident.
Medico-legal and vocational assessments
44 Dr Majid Rahgozar is an occupational physician. He examined Ms Lucas in October 2016.[14] On examination, he noted severely restricted movements of the thoracic and lumber spine. His diagnosis was vague. He did not get a clear picture of what happened in 2011. He could say she had had chronic pain since 2011 in the context of pre-existing degenerative changes. He obtained a better description of the 2016 incident. This was likely to have caused some aggravation of the pre-existing changes and possibly a musculo-ligamentous injury. She was unfit for unrestricted duties but had a capacity for light duties with limitations, with gradually increasing hours.
[14]Report dated 4 November 2016
45 Associate Professor Anthony Buzzard is a well-known surgeon. He examined Ms Lucas on 29 March 2017.[15] Judging from his report, his focus was on the 2016 incident and its aftermath, even though Ms Lucas told him about the 2011 incident and its consequences.
[15]Report dated 29 March 2017
46 His examination revealed:
“Back
The straight leg raising tests were negative. She does have some difficulty in sitting at right angles on the examination couch.
Movement of the lumbosacral spine was measured using a goniometer and found to be such that forward flexion was 40o. All other movements were 20 o … .”[16]
[16]DCB 68
47 Her legs were normal, except he could not detect a knee jerk but this did point to nerve root involvement.
48 To Associate Professor Buzzard, the 2016 incident aggravated the pre-existing degenerative changes in her lower back. At the time of his examination, the aggravation had not resolved. Whether the effect of the aggravation would cease, he did not say. He described her back in an expression I have not heard for a while – a light work back – explaining this meant restrictions on lifting, bending, stooping, pushing and pulling. He considered she had the physical capacity to do the jobs outlined in a report from Recovre.
49 Mr Michael Shannon is also a well-known surgeon. He examined Ms Lucas on 2 August 2017 for an impairment assessment.[17] He was looking at her back after the second incident. He noted some restriction in movement. As to apportionment, he said:
“There is no reliable basis for apportionment.
I think that her impairment relates predominantly to the original injury, although there may have been some aggravation by the subsequent fall.”[18]
[17]Report dated 3 August 2017
[18]DCB 55
50 In Mr Shannon’s report, he says Ms Lucas was off work for nine months following the first incident. In truth, it was about five months but it took longer for her to return to full hours. I do not consider this significant.
51 Dr Clive Kenna is a physician. He examined Ms Lucas on 26 March 2019.[19] He received a reasonable array of medical and other reports from the defendant’s solicitors. Ms Lucas told Dr Kenna of the May 2011 and August 2016 incidents.
[19]Report dated 26 March 2019
52 Dr Kenna took a very detailed history interspersed with his reading of certain medical reports including those of radiological examinations. Again, like Mr Shannon, he recorded Ms Lucas was off work for at least twelve months following the May 2011 incident. Again, I do not consider this significant given the further it took for her to return to full hours. He noted Mr Hunt’s view that it could be up to twelve months before Ms Lucas recovered but she may be left with persistent ongoing symptoms.
53 Dr Kenna saw pathology in a disc or disc of Ms Lucas’ lower lumbar spine. This caused lower back pain with somatic referral into both legs. There was no evidence of radiculopathy.
54 The defendant’s solicitors posed a number of questions to Dr Kenna. One question reads: “What was the inevitable course of the worker’s condition even with this incident? He interpreted the words “this incident” to refer to the May 2011 incident and answered the question: “Subsequent to this, as noted, there was a second incident which aggravated the lower back condition making it temporarily worse.” Earlier in his report, he considered the condition caused by the 2011 incident had never fully resolved or recovered.
55 He noted restrictions:
· unable to bend.
· able to sit and stand as long as it is self-paced.
· can lift up to 5 kilograms.
· unable to do repetitive movement or activities, particularly, lifting.[20]
[20]DCB 20
56 Dr Kenna was aware of the defendant’s view following Ms Lucas’ shoulder injury. To the question: “duration (should be able to perform activity in line with the above restrictions for 5 hours per day, 4 days per week)”, he answered:
“Here has been part of the issue. She has been able to work for 7-8 shifts, but then that results in a degree of aggravation building up over a number of shifts and subsequently she noted that over a period of a fortnight of shifts, she usually misses 1-2 due to a build-up of lower back pain.”[21]
[21]DCB 21
57 Dr Graeme Doig is a surgeon. He examined Ms Lucas on 30 April 2018. Perhaps, as a reflection of the timing of the examination, he received very few documents: certificate of capacity from Dr Hoque; a brief note from Dr Shum, seeking permission for acupuncture; Associate Professor Buzzard’s report, and Ms Lucas’ Claim Form and the defendant’s response. Apart from the report, the other documents were of very limited value. He was not given reports about radiological examinations which is unfortunate for it deprived him of important information. Accordingly, his diagnosis became a vague soft tissue injury to the lower back. Although aware of the 2011 incident, he focussed on the 2016 incident because, presumably, that was what he was asked to do. It is unclear from his report whether he knew of the aftermath of the 2011 incident. Nevertheless, he saw the 2016 incident causing chronic, lower back pain, creating a current work capacity.
58 Alissia Divitcos is an occupational therapist.[22] She assessed Ms Lucas on 15 February 2019 in relation to a request for home help. She noted Ms Lucas had received home help since 2016 and had been receiving one-and-a-half hours each week of help for the past six months. This help consisted of vacuuming, mopping, kitchen cleaning, cleaning of the bathroom and toilet and help with hanging out the laundry.
[22]DCB 201
59 Ms Divitcos recommended continuing the household help but fortnightly, not weekly, together with a one-off annual service to complete heavy cleaning tasks. She made other minor recommendations. It is unclear why she recommended home help on a fortnightly basis and not weekly except she does refer to “WorkCover guidelines”.
60 Mr Michael Baynes is an occupational physician. He examined Ms Lucas on 1 April 2019 and again on 8 May 2019.[23] For the second examination, he possessed the Recovre Suitable Employment report, dated 29 April 2019.
[23]Reports dated 1 April 2019 and 8 May 2019
61 Dr Baynes took a detailed history including education and past employment. He was aware of the results of various radiological examinations. He diagnosed a Chronic Pain Syndrome with chronic lower back pain in association with mild degenerative changes in the lower lumbar discs in association with an original soft tissue injury. There was no evidence of radiculopathy. He saw the 2016 incident aggravating the condition of her back.
62 In his first report, Dr Baynes believed Ms Lucas would be fit for work in administration, secretarial or receptionist-type roles, retail assistant, meet and greeter or ticket seller. This belief derived from her capacity after taking into account several limitations: no lifting greater than 7 kilograms; no repetitive lifting from below knee height or above shoulder height; and avoiding work in constrained postures. If she could rotate her posture (at will), he believed she could work 25 hours per week, increasing to 30 hours per week “with work hardening”. He recommended a desk at which where she could sit or stand. She would need some training including in computers and in terms of spreadsheets and Excel.
63 In his second report, not unsurprisingly, Dr Baynes noted no significant changes in the intervening five weeks between examinations. Ms Lucas told him of a recent flare-up of increased pain which lasted several days. He maintained his view of both limitations and the circumstances in which she could work. He examined the Recovre report carefully. He concluded it fell within the limitations he identified for Ms Lucas except in one minor respect: the occasional need to lift archive boxes from the lower shelves. This exception did not render it unsuitable, for someone else could do it. He concluded she could perform the job for 25 hours each week initially and then increasing as she “work hardened”. He noted travelling to this job would be a problem because Ms Lucas does not drive presently due to restrictions driving a manual car.
64 Dr David Murphy is a physician specialising in rehabilitation medicine. He examined Ms Lucas on 26 April 2019. As is usual with this type of specialist, he took a detailed history including the circumstances of the 2011 and 2016 incidents. He recorded her complaints and noted the nature of her work as a lifestyle and leisure co-ordinator. He had the reports of six radiological examinations. In relation to the back, he diagnosed mechanical low back pain with referred leg pain, saying mechanical low back pain says very little as a diagnosis.
65 Dr Murphy segregated the back from the shoulder. He placed significant restrictions on what Ms Lucas could do from the perspective of her back. These excluded lifting more than 5 kilograms, repetitive lifting, bending or twisting of the lumbar spine, sitting, standing or walking for more than 30 minutes at a time, repetitive jolting of the lumbar spine or pushing with a force of more than 10 kilograms. He did the same for her shoulder.
66 From his understanding of the duties of a co-ordinator, he felt she could not return to work in that job on a full-time, unrestricted, basis because the need to lift, bend, twist and push with force would aggravate her back condition.
67 An important part of his report turned on his answer to this question:[24]
“Your opinion of hour (sic) client’s realistic capacity to work (in any), including the number of hours per week our client could work on a consistent, reliable and permanent basis without the risk of re-injury when considering age, education, skills and work experience, place of residence, medical information, any occupational rehabilitation services provided, any effects of medication and incapacity and restrictions arising from:
Back injury alone;
… .”
[24]PCB 61
68 His answer to (a):
“Ms Lucas has no realistic capacity for employment on [a] consistent, reliable and permanent basis as a result of the physical restrictions imposed by her back condition which are listed in answer 3(a) and the factors listed below.”
69 The factors are:
“Ms Lucas’s capacity for work is significantly limited by a number of factors including:
● Her age, as it is more difficult for people of her age of 57 years to obtain employment.
● Her limited education and limited range of formal qualifications.
● Her limited work experience which has been largely confined to the Aged Care Industry.
● Her limited range of skills that would be able to [be] utilised in an alternative work. Ms Lucas does have some basic skills with accounts but not to the extent that they would be attractive to an alternative employer.
● Her residence is in a semi-rural vicinity with limited employment opportunities.
It is noted that Ms Lucas has been a client of a vocational rehabilitation provider, primarily in relation to a return to work program at Menarock Aged Care Services. There has been limited assistance to obtain alternative employment.” [25]
[25]PCB 61
70 Ms Janette Ash is an occupational therapist engaged by Recovre. On 29 April 2019, she wrote a report entitled “Suitable Employment Report”.[26] She did not interview Ms Lucas for the purposes of writing it. She worked off a letter of instructions and the report of Dr Baynes dated 1 April 2019. She looked for and found an administrative assistant job at an aged care facility, about 33 kilometres from where Ms Lucas lives.
[26]DCB 218-227
71 This position was one of three at the facility. It was a full-time position with one person working full-time and two others sharing a full-time position. The position paid between $24 and $26 per hour. Ms Ash divided the work into a series of tasks and examined each in detail. The computer-based tasks involved at least six programmes, none of which Ms Lucas would be aware but which, I daresay, she could learn. The other tasks involved customer service, general administration, deliveries, filing and archiving, and evacuations and untoward events, all of which Ms Ash believed were within Ms Lucas’ capacity. There are no formal education requirements for the job she described, although a Certificate III or IV is an advantage. Those without qualifications need prior experience in administrative roles. Judging from the data about the ages of persons in the job of receptionist, an age above fifty-five was not an impediment to employment.
72 On 23 May 2019, Dr Anna Manolopoulos, an orthopaedic surgeon, examined Ms Lucas. She was given a wealth of documents by the solicitors. She knew about the three incidents. In relation to the back, she diagnosed an exacerbation of pre-existing degenerative changes of the lumbar spine. It seems the exacerbation is permanent, for she said the back injury is degenerative and this progresses in time.
73 Dr Manolopoulos said the back injury prevents bending, squatting, kneeling and twisting and it alone prevents Ms Lucas from returning to her pre-injury duties.
74 She does not express any view about the relative importance of the 2011 and 2016 incidents.
75 Ms Katrine Green is a psychologist. She assessed Ms Lucas from a vocational perspective in May 2019. She took a detailed history and reviewed many reports, citing from them. She considered five occupations and found each unsuitable for Ms Lucas for the foreseeable future. She looked at each from the perspective of the back alone and the shoulder alone. The jobs were – personal care attendant; recreational/diversional therapist (leisure and lifestyle co-ordinator); housekeeper/room attendant; driver-courier/delivery; retail sales assistant; and hand packer.
Present
76 Ms Lucas still attends Dr Hoque. He prescribes Tramadol and Panadeine Forte. She also takes Panadol Osteo. By about March 2019, she ceased physiotherapy. She exercises at home. The Tramadol and Panadeine Forte are now taken at the same rate as before the 2016 incident.
77 Ms Lucas experiences constant pain in her lower back. Occasionally, it radiates to her thoracic spine. The pain also radiates from her lower back into her buttocks and legs, particularly her right leg. The pain can reach her heels. At times, her right leg feels as though it will give way but has not done so yet. Occasionally, she limps with her right leg.
78 Ms Lucas experiences acute flare ups of pain regularly. On these occasions, the intensity is three or four times greater than the constant pain. The latter is at a relatively low level.
79 Her pain makes it difficult to bend and restricts leaning forward (flexion) or backwards (extension). She cannot stand or sit for long periods, lift heavy weights or walk on uneven surfaces. At times, she cannot driver her car, which is manual.
80 Ms Lucas has noticed a gradual worsening of her pain over the last couple of years. Before ceasing in August 2018, Ms Lucas struggled with her nine-day fortnights. She took sick days.
81 In assessing herself, she does not believe she could now work as a personal carer or leisure and lifestyle co-ordinator. She had been forced to abandon some of the latter’s activities before she stopped work (for example bowling with the residents). She even structured some activities to enable her to rest or lie down:[27]
“… I set up craft activities which enabled me to leave the residents for a short while on their own so I could have a rest or lie down to manage my back pain. I could not leave the residents if they were doing cutting and pasting activities as I needed to be there to supervise, so often I would set up activities like doing puzzles, so I was able to go to my room to rest my back. … .”
[27]PCB 106
82 Owing to her back injury, she does not believe she is able to work. She has limited work experience; however, she prepares accounts for her husband’s mowing business. She created his form of account or invoice, copying others. She uses Word to produce them. There are not many. She uses a software programme to calculate his GST. She has not worked out how to use this programme to produce his accounts. She keeps his books by entering his income and expenditure. She can access the Internet.
83 Ms Lucas can sit at a desk for about twenty minutes. In her office at work, she could not stand. She could stretch her legs and change her posture. She could walk about her office. She can walk about 800 metres on flat ground. Within an office, she could walk 200 metres provided the floor was level. She could not bend to reach the bottom drawer of a filing cabinet. If offered account work, she would struggle to concentrate and avoid errors. The pain can affect her concentration. If the pain is sufficiently high, she makes frequent mistakes in her husband’s simple accounts. She rejected an ability to work five hours daily in an administrative position where she lifted no more than 5 kilograms, could sit, stand or change posture when answering the telephone or greeting customers, et cetera.
84 Ms Lucas uses her laptop to explore her genealogy. She quilts and embroiders as a hobby but she cannot always do it.
85 The employer will not take her back unless she gets a complete clearance, which is impossible. It also asked her to resign, but she refused.
Discussion
Credit
86 The defendant raised the credibility of Ms Lucas.
87 Ms Lucas struck me as truthful when giving her evidence. She was examined by several practitioners in 2019. She gave the same descriptions of the three incidents. She spoke of the same symptoms. Naturally enough, no practitioner suggests she was untruthful or exaggerating or even inconsistent. Dr Baynes saw evidence of positive Waddell’s signs but it suggested centralisation of pain only.
88 Reading the reports of the practitioners who conducted physical examinations, there is a broad consistency of findings. This consistency suggests a person who is trying to present a true picture of herself from a physical perspective.
89 The defendant submitted I should disbelieve her oral evidence about an inability to do the work of a co-ordinator because it runs counter to her high-levels appraisals, both by herself and her supervisor. She may have “noted” herself up but the same cannot be said of her supervisor. I agree. Ms Lucas should not have deceived her employer in that way; however, this deception does not lead me to doubt her credibility in any material way.
90 The contrast between some of the content of her affidavits gives no sound basis for doubting her credibility. It may reflect the priorities of the person preparing the document.
91 Self-assessment can be an unreliable measure. Sometimes a worker over-estimates an ability, sometimes underestimates. Of itself, in this case, it is not a basis to say Ms Lucas is less creditable. Simply, I would treat her self-assessment with caution as I would do with any witness in the same situation.
92 The defendant had had Ms Lucas watched. It did not seek to give evidence of what was seen. The obvious inference I would draw is that what was seen does not support the defendant’s case regarding her physical capacity. It is merely another reason to accept Ms Lucas’ credibility.
93 To me, Ms Lucas is a credible witness.
The effect of the 2016 incident
94 Only Dr Hoque, Mr Kenna and Mr Shannon separate the incidents. Dr Hoque implies the condition of Ms Lucas’ back is due to the 2011 incident alone. Mr Shannon says the effect of the 2016 incident was minor while Dr Kenna says it was temporary. Dr Rahgozar believed there was some aggravation but he examined Ms Lucas too close to the 2016 incident for that opinion to have value.
95 In paragraphs 49 to 52 of her first affidavit, Ms Lucas spoke exclusively of the 2011 incident but self-assessment is of variable usefulness. It depends on the assessor. It is some evidence in favour of the sole continuing effect of the 2011 incident.
96 Terry Lucas is Ms Lucas’ partner. He speaks of advising her to stop work before she stopped in 2018. He does not say when he told her that. Although possible, I would not infer he was speaking of a time before the 2016 incident.
97 Ms Lucas was still being treated in 2015 and 2016 before the second incident. She was not symptom free leading up to the second incident. During 2015 and 2016 until 11 August 2016, she attended Dr Hoque on ten occasions about her lower back. Three times Dr Hoque wrote of an acute flare up of pain. Judging from those entries, she suffered constant pain with outbreaks of more intense pain occurring reasonably regularly even though she was taking strong medicines to relieve her pain.
98 The continued complaints of pain by Ms Lucas led to bone and MRI scans in October 2015. Although the scans showed little, there was seen to be a need for them by those treating her.
99 There is a difference between the MRI scans taken in October 2015 and October 2016: the existence of disc bulges, mild to moderate, and bilateral facet joint arthropathy. I cannot say these differences are significant. In October 2016, it seems the radiologist was looking for evidence of prolapse and found none. He may have ignored mild bulges.
100 Ms Lucas resumed chiropractic treatment in June 2016, which continued after the August 2016 incident but ended in December 2016. I do not know how many times she saw the chiropractor before the 2016 incident. The report of the chiropractor is neither consistent nor inconsistent with a significant worsening of the pre-existing condition by the 2016 incident or even a further injury in 2016.
101 After the 2016 incident, Ms Lucas returned to work after three months and built up her hours gradually.
102 Regarding the left shoulder, Mr Raleigh warned Ms Lucas about her shoulder in May 2018. By now, he would not consider it an impediment to returning to work. Neither does Dr Taubman.
103 Following a consultation in November 2017, Mr Dush Shan, a psychiatrist, noted Ms Lucas was managing quite well until the 2016 incident. Assuming that is an accurate summary of what Ms Lucas told him, it is an over optimistic view of what was going on. I have traced the nature of her attendances upon Dr Hoque in 2015 and 2016 and other measures taken to solve her back problem.
104 Mr Michael Shannon, surgeon, examined her in August 2017 for an impairment assessment. He took an accurate history. He assessed on the basis of a disc impairment and not restrictions in movement. He did not think the 2016 incident caused a “new injury” and the impairment was due predominantly to the 2011 incident “although there may have been some aggravation by the subsequent fall”.
105 The fact that some practitioners obtained histories that did or did not mention one or other of the 2011 and 2016 incidents is of no probative value (Dr Krapivensky, Associate Professor Buzzard and Dr Rahgozar). It may reflect what they were asked by the solicitor.
106 Home help started in about September 2016 and continues.
107 Alone of the medico-legal practitioners, Dr Kenna delved sufficiently in Ms Lucas’ past and was sufficiently aware of the past treatment and radiological examinations, to give the opinion he did, namely, the aggravation was temporary. Although he gave no estimate as to when the effects of the aggravation disappeared, one can safely conclude that it has by now because of the passage of time.
108 Largely, on the basis of that opinion, I am satisfied the problems Ms Lucas now experiences with her lower back are the result of the 2011 incident and the 2016 now plays no part in her symptoms. I conclude her loss of earning capacity consequences relates to the 2011 incident alone.
Loss of earning capacity
109 This application is governed by s134AB and, in particular, ss(38) and paragraphs (e) and (f). I am satisfied Ms Lucas has a serious injury with respect to pain and suffering. I am influenced in that finding by the defendant’s concession that she does.
110 Through her counsel, Ms Lucas submitted there is no suitable employment for her, referring me to the definition of “suitable employment” in s5(1) of the Act. Before turning to that submission, I am satisfied of the fact the condition of her back has deteriorated since she stopped work in August 2018.
111 Several of the practitioners have talked about this issue. They are of varying help. Judging from Dr Manolopoulos’ report, I do not think she had a good appreciation of the work performed by Ms Lucas as a co-ordinator. Her report reads as though she is talking about the work of a personal care attendant.
112 On the other hand, Dr Murphy had a clear appreciation of her work as a co-ordinator. He identified two areas, being the back and shoulder. He placed restrictions in relation to each. The defendant submits his restrictions approximate what is required in the job discovered by Recovre.
113 Dr Baynes considered Ms Lucas fit for alternative duties, fitting within the restrictions he identified. These included administrative, secretarial and receptionist-type work. He agreed with the job examined by Recovre and said it was suitable for her.
114 In her second affidavit, Ms Lucas spoke about the need to rest at work and the measures she devised to achieve it. The issue was explored in cross-examination. Her evidence painted a disturbing picture about the problem with her back. She talked with residents in their rooms to avoid doing other activities. She hid in her office to rest. She lay on a bed to rest. She even asked a physiotherapist to massage her back to give relief.
115 Although one might quibble about 25 to 30 hours each week and the full-time job examined by Recovre, the measures taken by Ms Lucas to rest her back while working and the deterioration of the condition of her back since stopping are decisive. She was struggling to do that job and took steps to see herself through the day. Even while working at that job, she became unsuited to it. She is unsuited for the job identified by Recovre. Looking at the definition of “suitable employment”, there is no employment in work for which she is currently suited, and that will continue to be the case permanently. In reaching those conclusions, I have disregarded the effect of her left shoulder injury.
116 I quoted Dr Murphy’s answer to a question posed by Ms Lucas’ solicitor. Although part of the question went beyond Dr Murphy’s expertise, nevertheless, I agree with his conclusion in relation to Ms Lucas’ back. I do not know where the expressions “realistic capacity to work” and “consistent, reliable and permanent basis” come from, but the thrust of the question and his answer ties in with the observations of Ashley and Kaye JJA in Richter v Driscoll.[28] Ms Lucas is fifty-seven. She has limited secondary education and has two certificates which are narrowly focussed. She has had limited work experience and much of what she did occurred years ago. She is intelligent and could learn. She lives in Emerald which is somewhat distant from the major areas of employment. Her inability to drive relates to her shoulder and I will ignore that. The condition of her back is poor and deteriorating. It severely limits her ability to do work on a consistent basis, whether in employment or domestically.
[28][2016] VSCA 142 at paragraphs [95] and [96]
117 I am satisfied Ms Lucas has no present or future ability to work in employment or put another way, her powers of labour as a merchantable article have been destroyed by the effects of the 2011 incident.
118 Regarding paragraphs (e) and (f) of s134AB(38), I am satisfied the gross income from personal exertion Ms Lucas is capable of earning in suitable employment at the date of the hearing is nothing. As to the second part of the comparison required by clause (ii) of paragraph (f), the gross income she was earning from personal exertion during the relevant periods is $43,671. Plainly, Ms Lucas has a loss of earning capacity of 40 per centum or more.
119 For completeness, Ms Lucas’ counsel referred me to passages from the judgment of Forrest J in Acir v Frosster Pty Ltd.[29] In view of my finding about the effect of the 2016 incident, there is no need to apply the law set out by his Honour.
[29][2009] VSC 454 at paragraphs [169] to [173]
Conclusion
120 I will give Ms Lucas leave to commence a proceeding for damages for pain and suffering and loss of earning capacity.
121 I will hear the parties on the question of costs.
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