Lunt v Ridder Dyson Smallgoods Pty Ltd
[2010] VCC 1985
•15 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01808
| KAY LUNT | Plaintiff |
| v | |
| RIDDER DYSON SMALLGOODS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 and 9 December 2010 |
| DATE OF JUDGMENT: | 15 December 2010 |
| CASE MAY BE CITED AS: | Lunt v Ridder Dyson Smallgoods Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1985 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – S.134AB Accident Compensation Act 1985 – injury to lumbar spine – pain and suffering – nature and extent of plaintiff’s work capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Slater & Gordon |
| Mr M J Garnham | ||
| For the Defendant | Mr G K Coldwell | Hall & Wilcox |
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered injury to her lower spine in the course of her employment with the defendant on 19 June 2007 when she was pushing a heavy trolley which veered as it went over a culvert. She felt pain in her lower back which developed into her right leg.
2 She remained at work for a short period, and then had a number of breaks from employment due to her injury. She worked on light duties, and eventually ceased work in July 2008. In August 2009, a spinal cord stimulator (SCS) was implanted in an attempt to gain relief from the chronic lower back pain she was suffering. This has resulted in improvement to the back and leg pain, although there have been various side-effects.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant on the 19 June 2007.
4 Mr Mighell, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine. Initially, the application was brought under subsections (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act. However, Mr Mighell conceded there was no sufficient basis for the application to succeed under subparagraph (c). Leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function of the spine are at least “very considerable” and more than “significant” or “marked”.
6 I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
7 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f) that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her “without injury” earnings in that part of the three-year period before and after injury as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
8 The plaintiff, and her general practitioner, Dr Kelly, were the only witnesses called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, medical and radiological reports, and vocational assessments were tendered into evidence. I have read all the tendered material.
Relevant Background
9 The plaintiff is now fifty-six years of age. She completed Year 10 at high school. She commenced work as an apprentice hairdresser in 1971 and continued in that profession for about twelve years. In the 1980s, she commenced work for an electrical discount store, Stan Cash, as a salesperson, finishing as a manager. In 1984, she commenced work with T & J Brass Beds, initially in sales. She and her then husband obtained a franchise from the company, and conducted the business themselves. Her first marriage ended, and in 1994, she left the business. She worked for a period in furniture upholstering sales. She then worked as a cook at a roadhouse and, in 1999, commenced work with the defendant as a packer and production worker. Her second marriage ended in 2005 and at that time she transferred to work in the defendant’s warehouse.
10 Earlier, in April 1986, she was involved in a significant transport accident. She suffered a head injury and an injury to her right shoulder. She developed post-traumatic epilepsy, and has been diagnosed as epileptic since. She takes medication, Rivotril, and her epilepsy has been reasonably well controlled. She had a right shoulder reconstruction following the transport accident, but was able to resume full-time employment.
11 In 2005, she was diagnosed as suffering coeliac disease. This is a sensitivity to food products containing gluten.
12 In early 2006, she formed a relationship with her current partner.
13 Apart from the medical history referred to, the plaintiff was otherwise in good health in June 2007, and able to work in full-time employment which was reasonably strenuous.
14 The plaintiff enjoyed a range of domestic and recreational activities, including sewing, knitting, baking and gardening. She and her partner enjoyed fishing in his boat.
The Injury and its Consequences
15 On 19 June 2007, the plaintiff was pushing a heavily loaded trolley while working in the warehouse, when the wheels became lodged in a culvert, and she was pulled to one side. She felt immediate pain and discomfort in her lower back. She reported the injury and went to her general practice clinic. By that time she had pain in her right leg. She was given analgesics and sent to a physiotherapist. Subsequently, she saw her treating general practitioner, Dr Kelly, and was given certificates for two days off work. About a week later, she collapsed at home as her right leg gave way and she went to the Dandenong Valley Private Hospital. She had several further days off work. She returned to work and remained until late September 2007 on modified duties, working two hours, four days per week. The pain persisted, and she took anti-inflammatory and analgesic medication. She found she was intolerant to these. She had physiotherapy twice a week.
16 A CT scan of 31 July 2007[1] showed:
“Significant right L5/S1 facet joint arthropathy with vacuum phenomenon.
No significant disc protrusion demonstrated at any level.”
[1] Plaintiff’s Court Book (“PBA”) 106
17 Her symptoms deteriorated, and she was certified as unfit to work in late September 2007. Her symptoms improved with rest and she resumed work on a return to work plan in October 2007, working two hours per day, five days per week, in administration. She had difficulty coping and was easily fatigued. She was being regularly treated by Dr Kelly.
18 She was referred by Dr Kelly to Dr Mithu Palit, a rehabilitation physician, in October 2007. He assessed her as an appropriate candidate for a rehabilitation program at Epworth Rehabilitation in Dandenong. She participated over three months in the program, which included physiotherapy, occupational therapy, fitness, and psychology sessions, attending twice per week.
19 Around this time, she developed an exacerbation of the pain in her right leg, with numbness and pins and needles. An MRI scan of March 2008[2] showed findings similar to the earlier CT scan. She participated fully in the rehabilitation program, although it was noted that she was physically deconditioned. Dr Palit suggested she undertake a return to work program. She returned to work again in April 2008, performing light duties two hours per day, four days per week. She said that she was under pressure to increase her working hours, and became anxious. She was eventually placed off work in July 2008, and has not worked since.
[2] PCB 107
20 She was referred by Dr Kelly to Mr Michael Johnson, orthopaedic surgeon, in August 2008. He was uncertain as to the cause of her symptoms but thought that they may be related to an L4-5 facet joint problem. He considered she displayed some non-organic clinical signs, and that there was no place for surgery. An MRI scan of the lumbar spine of 3 September 2008[3] showed mild diffuse disc bulging at L5-S1 with “severe” bilateral facet osteoarthritis, worse on the right. Mr Johnson considered that the MRI scan did not demonstrate an organic abnormality as a cause of her back and right leg pain. He described the osteoarthritis of the L5-S1 facet joint, as moderate.
[3] PCB 108-109
21 A whole body scan of January 2009 demonstrated osteoarthritis in the plaintiff’s thumbs.
22 In February 2009, the plaintiff was referred to Dr Bruce Mitchell, pain management specialist. The plaintiff had undertaken research into the possibility of the implantation of an SCS and Dr Mitchell was experienced in the use of such devices. She underwent a trial of the SCS in mid-July 2009, and the results showed she would be an appropriate candidate. The SCS was permanently implanted in August 2009, with a battery pack located in her left buttock. The device sends a signal to the spinal cord, with the intention of reducing pain levels. After a significant period of rehabilitation, it is clear that the device has had a significant impact upon the plaintiff’s pain, not only in her back, but also her right leg.
23 The plaintiff is able to alter the intensity of the signal and turn the device off. She states that the device runs 24-hours per day, but there have been a number of side-effects:
•
While there has been significant relief from the pain, she still has pain present in her lower spine and right leg;
•
She has developed pain in the pelvic region as a result of the implantation of the device;[4]
•
She suffers a burning sensation where the leads of the device connect to the battery pack;
•
The battery pack is protruding to some extent from her buttock and this causes discomfort when she sits. She needs to sit in a position where she avoids pressure upon that buttock area;
•
The device appears sensitive when in proximity to some electronic equipment and this may result in a variation of the intensity of the signal.
[4] Transcript 6
24 Generally, the implantation of the SCS has been successful, although it has required some refining and readjustment. Dr Mitchell, in his report of 7 December 2010,[5] said the following:
“Mrs Lunt currently has major restrictions on her ability to do domestic duties and recreational duties and has been unable to return to work. This is having a major impact on her social life and recreational activities. This is likely to be long-term. … Mrs Lunt has severe pain around her battery site but is prepared to tolerate this rather than run the risk of this device needing to be removed due to infection. The device is giving her excellent pain relief when turned on. Mrs Lunt has severe neuropathic pain which is being controlled with spinal cord stimulation. She does, however, have severe pain in her buttock over her battery site. It is unlikely that her pain will worsen and it is probable that this will continue to be well controlled by the device. … It is unlikely this lady will require future medical treatment except perhaps revision of the battery site.”
[5] PCB 48b
25 Of recent times, the plaintiff has developed pain and restriction in her right hip. Dr Kelly was unable to say whether it was related to her back injury. The problem with her thumbs has led to difficulty using her hands under any pressure in activities such as opening jars and repetitive movement of the hands.
26 At the present time, the plaintiff still sees Dr Kelly regularly. She claims she can carry out some housework although more slowly, and her partner helps with heavier tasks. She is unable to play with her two young grandchildren as she would wish, and her participation in fishing, particularly from a boat, has been significantly restricted. She suffers constant pain in her back and right leg, although much relieved by the SCS. She takes occasional analgesic medication, although has an adverse reaction to it. She says she finds bending and twisting difficult and lifting heavier weights. The pain in her back is worse in the cold weather. Her sleep is affected.
Medical Evidence
27 Dr Kelly, the treating general practitioner, provided a number of reports[6] and attended to give evidence and be cross-examined. I found him a credible witness giving a fair account of the plaintiff’s symptoms and prognosis. He has treated the plaintiff from the time of the injury to the present time and referred her to various specialists. He described the plaintiff as having a real determination to return to work. In his report of 3 December 2010, he made the following comments:[7]
“Since my report in January 2010 not much has changed with Kay. She continues to report good relief of her back and leg pains since the insertion of her spinal cord stimulator in August 2009. She still has some issues with the battery pack protruding a little in her back which creates some discomfort when she sits back in a chair and leans on it. This is manageable though, and the latest communication from her specialist, Mr Mitchell, has stated that he would not consider moving the battery at this point. Kay has developed some right hip pain which may not be associated with her back, but may be a new problem all together. … It has been put forward to Kay that she might like to consider some retraining in the form of a computer course. Whilst keen to consider such a course, she is worried about the effect of a computer’s electromagnetic field on the functioning of her spinal cord stimulator … I believe that a clerical job with computers would suit Kay as long as she was able to stand and stretch regularly and did not have to sit for very long periods of time. The other jobs mentioned in a letter from Slater & Gordon dated 26 November 2010 all have some merit, but many of them involve sitting or standing for long periods of time. Kay would not be able to cope with prolonged sitting or standing, regular bending or twisting, or any heavy lifting greater than 10 kilograms. A customer service role involving a combination of sitting and standing could be considered.”
[6] PCB 15-28a
[7] PCB 28
28 Further, after receiving a request from the plaintiff’s solicitors, Dr Kelly said the following:[8]
“Just a few lines as supplementary to my last report. Kay may be able to do light work at some time but will not be able to cope with any full time duties. If she gets back to work then it would only be for a maximum of four hours per day, and probably only two to three days per week.”
[8] PCB 28a
29 As stated, the plaintiff undertook rehabilitation under the direction of Dr Palit, rehabilitation physician. He considered the plaintiff had suffered an acute disc injury[9] with neurogenic pain, which had settled with time. After the program, Dr Palit supported a return to work program providing the plaintiff was not engaged in activities involving pushing or repetitive bending. He thought that she would not benefit from spinal surgery, but would require ongoing medical treatment and physiotherapy. At that time (before the implantation of the SCS), he described her pain levels as moderately high, exacerbated from time to time.
[9] PCB 61
30 In his reports of 2008,[10] Mr Michael Johnson noted the scans undertaken demonstrated lower lumbar degenerative change without prolapse or nerve root compression. He thought there was moderate osteoarthritic change at the L5-S1 facet joint. He considered that the plaintiff displayed non-organic clinical signs and thought that the radiology did not show any abnormality as a cause of the symptoms of which she complained.
[10] PCB 49-51
31 Dr Mitchell, the treating pain specialist, in his report of January 2010,[11] stated that it would be necessary for the plaintiff to undergo a prolonged rehabilitation period after the implantation of the SCS which was likely to take twelve months or more. He said it was necessary for her to gain core strength and conditioning in the back to an acceptable level. That being achieved, there was the prospect that she would re-enter the workforce. As earlier stated, he described the various side-effects of the SCS.
[11] PCB 48
32 The plaintiff was examined by Dr Amanda Sillcock, occupational physician, in December 2009 and November 2010.[12] She described the plaintiff’s injury as a soft-tissue strain with facet joint arthropathy as a result of the workplace injury on 19 June 2007.[13] She noted the plaintiff had difficulties with a range of activities, including bending, lifting, twisting and other repetitive activities using the lumbar spine. She considered the plaintiff unable to perform pre- injury duties, on a full-time or part-time basis. She considered the plaintiff did not have any capacity for suitable employment. She described the plaintiff’s pain as intractable and sufficient to preclude her from working. She considered this incapacity permanent. She said that despite the plaintiff’s past work experience as a hairdresser, in sales and as a cook, and that she did have some transferrable skills, she thought the plaintiff would have difficulty physically coping with work, particularly if she was required to sit and stand for long periods. She thought the plaintiff would not be able to manage various computer courses suggested by the vocational and rehabilitation experts on behalf of the defendant. In any event, she did not think that such courses would enhance the plaintiff’s prospects of obtaining employment as a hand packer, product assembler, sales assistant or customer service officer.
[12] PCB 89-104
[13] PCB 99
33 The plaintiff was examined by Mr Michael Flaim, surgeon, in November 2010.[14] He obtained a history of some low-back pain although generally controlled, with right leg pain and numbness. The plaintiff further described the burning sensation at the battery site and restriction in a range of activities. He noted the CT and MRI scans demonstrated facet joint disease and some disc degeneration. He believed this was related to the work incident of June 2007. In terms of her employment capacity, he considered she had no work capacity as a result of her chronic back symptoms and the limitations placed by the SCS. He thought her current symptoms would persist into the foreseeable future. He noted that there may be the need for some surgery to revise the SCS, particularly in relation to the placement of the battery.
[14] PCB 104a-c
34 The plaintiff was examined on behalf of the defendant by Mr Hugh Weaver, orthopaedic specialist, in January and July 2008.[15] His reports are of limited assistance as they predate the implantation of the SCS. He considered the plaintiff as suffering multi-level intervertebral disc pathology in part due to the degenerative ageing process but aggravated by the workplace incident. He thought there was some degree of psychological embellishment.
[15] DCB 7-17
35 The plaintiff was examined by Dr Clayton Thomas, rehabilitation and pain management specialist, on a number of occasions in 2009.[16] In September 2009,[17] he obtained a history that with the implantation of the SCS, the plaintiff’s pain had been reduced from 10/10 to 2/10 at worst. He said that she responded very well to the insertion of the SCS. While it would not be appropriate for her to return to work in her pre-injury employment, he described her work capacity as follows:[18]
“She has a work capacity to perform light manual work and light sedentary-type employment. She would need some support in looking at retraining options, but given her previous work experience, return to work in a managerial sales capacity would seem to be a valuable option for her. She has a capacity to undertake a vocational assessment and/or job seeking assistance. After the three months following the spinal cord stimulator has elapsed, she could work within restrictions. The primary restriction is to lessen the risk of her for any form of aggravation. I think a 7 kilogram frequent lift between waist and shoulder height would be appropriate. I think she should avoid bending, lifting and twisting above shoulder height and below waist height. I think she could perform physical work of the light manual type up to 24 hours per week at this particular stage. As far as working full time in a sedentary office environment, I think in an appropriately set up ergonomic work station which can have some flexibility to avoid being in one posture for prolonged periods of time, she could work in a full time position.”
[16] DCB 23-29
[17] DCB 27
[18] DCB 28-29
36 The plaintiff was examined by Dr Kevin Fraser, rheumatologist, in March and October 2010. He described the plaintiff as presenting with non-organic factors contributing to her symptoms. He noted she did, however, have osteoarthritis affecting the L5-S1 facet joints but considered that these changes were related to an underlying degenerative process rather than the work-related injury. He thought that she was probably unfit for work requiring repetitive or forceful movements of her thumbs but that she was capable of work as suggested by the defendant’s vocational assessors, including work as a general clerk, bank worker, postal services officer or cashier. He further thought she was capable of employment as a hand packer, packer, product assembler, accessory making assistant, sales assistant and customer service officer. He did not consider that the implantation of the SCS had resulted in any significant functional improvement. He said her work capacity may be affected by the osteoarthritis in her thumbs.
37 Finally, in August 2010, the plaintiff was examined on behalf of the defendant by Dr Peter Stevenson, consultant physician.[19] He obtained a history that the SCS had reduced her pain levels from 9/10 to 7/10. He noted that the plaintiff had worked in a part-time capacity with her pain at a higher level, before improvement with the SCS. Given that improvement, he could see no reason why the plaintiff could not return to at least part-time employment. In any event, he considered the findings on radiology as reflecting normal age- related degenerative change without neurological compromise. He said that the plaintiff’s concern about her return to work appeared to relate to electrical hazards of the SCS. He described the sensation in her buttock from the battery pack as ‘discomfort’. He noted the plaintiff did not mention any leg pain. He did not believe it was reasonable to attribute her chronic back pain to the work-related incident, but rather to age-related degenerative disease. He thought there were psychosocial factors involved. He thought there was no evidence of disc injury and considered her work capacity as substantial, providing she avoided the heaviest aspects of physical work. He agreed that the various lighter work jobs suggested by the rehabilitation providers would be appropriate.
[19] DCB 36-47
38 Reports were provided by two rehabilitation/vocational assessors, Konekt (September 2009)[20] and NabEnet (24 August 2010).[21] Further, Konekt reported as to various computer courses available to enable the plaintiff to enhance her computer skills.[22] These reports were of some assistance in identifying various jobs to which the plaintiff may be suited, and the tasks involved in those jobs, but in my view, the plaintiff’s ability to perform such jobs falls to assessment by the medical practitioners. The reports identified the following jobs:
[20] DCB 50-58
[21] DCB 59-71
[22] DCB 72-75
• General clerk; • Bank worker; • Postal services officer; • Cashier;
• Warehouse worker; • Hand packer; • Packer;
• Product assembler; • Sales assistant; • Customer service officer (call centre operator). 39 The NabEnet report considered that the plaintiff would be able to perform work as a hand packer, product assembler, sales assistant or customer service officer, but that capacity was based upon the assumption, provided by the defendant’s solicitors, that she was capable of “light manual work and light sedentary employment, that does not involve repetitive bending or twisting”.[23]
[23] DCB 71
Pain and Suffering Consequences
40 I accept the plaintiff suffered an injury to her lumbar spine in the workplace incident. Although not completely clear from the evidence, it seems the injury caused an aggravation, particularly to her facet joints at L5-S1. There is no evidence of significant disc injury, nor neurological compromise. The injury represented an aggravation of the underlying degenerative condition of her spine which I accept was asymptomatic prior to June 2007.
41 I accept the plaintiff suffered ongoing pain in her lumbar spine and right leg following the incident which has required a range of treatment, including physiotherapy, the prescription of some medication and finally, the implantation of the SCS. The plaintiff’s capacity to take medication is affected by her coeliac disease.
42 I reject the opinions of Doctors Fraser and Stevenson that the plaintiff’s current presentation is as a result of the underlying degenerative process, rather than from the specific workplace injury. Her pain and right leg problems commenced at the time of the injury, and have not abated since. I prefer the opinions, particularly of the plaintiff’s treating practitioners, that her current condition is related to the workplace incident.
43 A number of practitioners, including Mr Johnson and Mr Weaver, refer to some non-organic aspects of the plaintiff’s presentation.
44 There were no significant credit issues put to the plaintiff although I did find her a witness who was adamant, even demonstrative, about her injury and the consequences of it. I have some reservations in accepting all of her complaints of pain. I accept the views, particularly of Mr Johnson, that there is some non-organic aspect of her presentation. Substantially, however, I accept that the symptoms of which she complains do have an organic basis, and are related to the workplace incident.
45 It is clear that the plaintiff has had generally a successful outcome from the implantation of the SCS in terms of the relief it has provided to her back and right leg pain. I accept, however, that there have been significant side-effects. These are described by Dr Mitchell.[24] He says the plaintiff has major restrictions in her capacity for domestic and recreational activities and describes the pain in her buttock at the battery site as severe.
[24] PCB 48b
46 Aside from the pain and discomfort at the various sites she describes, the plaintiff has an electronic device implanted into her back which provides an electrical stimulation to the spinal cord. I accept that the intensity of the signal is affected by some electronic equipment. In my view, these various side- effects are likely to persist.
47 Given the matters to which I have referred, I am satisfied that the plaintiff meets the “very considerable” test in respect of the pain and suffering consequences of injury.
Economic Loss Consequences
48 The plaintiff is in receipt of payments of compensation at the total incapacity level. On 4 May 2010, a Medical Panel determined that the plaintiff had no work capacity and that that was likely to continue indefinitely.[25] To date, the plaintiff’s general practitioner, Dr Kelly, has certified the plaintiff as being totally incapacitated for work.
[25] PCB 114
49 I asked the plaintiff various questions about her current work capacity.[26] She described that she would be able to return to work in a sales position, provided she had the necessary product knowledge. She said she didn’t “have a problem selling”. She said that she would be prepared to have a go at such employment but was not able to say whether she would be able to do so full-time. She said she would be prepared to start gradually and see how things worked out. She said she would wish to ensure the SCS was reprogrammed so as to reduce the various problems that she was suffering. She said she would give any such job a “one hundred and ten per cent go”. The plaintiff further agreed that she would be prepared to undertake a computer course, although she had reservations given that her computer knowledge was limited.
[26] Transcript 53-55
50 In my view, the plaintiff does have a work capacity. I accept that she has had various problems ensuring the SCS works at an optimal level. It has been reasonable, to date, that she has not undertaken any return to employment.
51 In my view, the plaintiff does have the capacity to undertake some form of computer course to enable her to gain a basic understanding of their operation. It would be necessary for her to be able to alter her posture as needs be. I accept the proposition put forward by Mr Coldwell that having undertaken such a course, her prospects in the employment market would be enhanced. The plaintiff impressed me as a person of reasonable intelligence, and her past employment history would indicate she has considerable experience and expertise in the area of sales and customer service. Despite, however, the opinion of Dr Clayton Thomas, in my view her earning capacity is restricted. I do not believe, even with the completion of a computer course, she would have the capacity to work in a sales type position on a full-time basis. For the foreseeable future, in my view, she would only be able to work part-time.
52 In considering work capacity, I must have regard to the various factors referred to in the definition of “suitable employment” set forth in s.5 of the Act. Her work capacity is restricted by her age (she is currently fifty-six) and the fact that any potential employer would have to be located a relatively short distance from her home given she is unable to drive long distances.
53 I was impressed with the evidence of the plaintiff’s general practitioner, Dr Kelly. Despite being pressed to the view that the plaintiff had a greater work capacity, he said at the present time she would be able to work, in appropriate employment, for four hours per day, three days per week. Even accepting that her work prospects would be enhanced by the completion of a computer course, and possibly some retraining in the sales area, and accepting that the plaintiff appears to be prepared to undertake such work, initially on a part-time basis, in my view, for the foreseeable future, the plaintiff’s work capacity is limited. She does not have the capacity to work full-time. Doing the best I am able, the plaintiff’s work capacity at the present time is something between twelve to fifteen hours per week. At the time of injury, the plaintiff was working full-time, thirty-eight hours per week. On this assessment, the plaintiff meets the criteria as required by s.134AB(38)(e) of the Act.
54 In conclusion, the plaintiff’s application in respect of pain and suffering and economic loss succeeds.
55 I shall make consequent orders.
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