Majkic v Naandan Jain Australia Pty Ltd (formerly Naan-Dan Australia Pty Ltd)
[2012] VCC 30
•3 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05872
| KOVILJKA MAJKIC | Plaintiff |
| v | |
| NAANDAN JAIN AUSTRALIA PTY LTD (formerly NAAN-DAN AUSTRALIA PTY LTD) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 28 November 2011 | |
DATE OF JUDGMENT: | 3 February 2012 | |
CASE MAY BE CITED AS: | Majkic v Naandan Jain Australia Pty Ltd (formerly Naan-Dan Australia Pty Ltd) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 30 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – whole of spine injury – low-back injury – pain and suffering damages – loss of earning capacity – whether “serious injury” threshold satisfied – whether injury is caused at work
LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(38)(a), 134AB(16)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
JUDGMENT – Leave granted for pain and suffering damages only. Leave refused for loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Mr M A McLay | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie with | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 13 December 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff alleges that during the course of her employment, she injured the whole of her spine. The plaintiff also alleges, more particularly, that she injured her lower back whilst in the course of her employment with the defendant on or about 22 September 2008.
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
4 The following evidence was adduced or tendered during the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 6 to 81 inclusive;
§Exhibit B (for identification), report by R D Wilson & Associates dated 6 April 2009;
§Exhibit C, document entitled ‘Summary of Surveillance’;
§Exhibit D, Defendant’s Court Book (“DCB”), page 178(a).
·The defendant tendered the following documents:
§Exhibit 1, two surveillance DVD discs for the dates of 24 and 26 September 2009 and 1 February 2011;
§Exhibit 2, DCB, pages 1 to 118 and 121 to 191.
5 At the commencement of the application, Mr McKenzie, on behalf of the defendant, stated that the issues for consideration from the defendant’s perspective were:
(a)Whether the claimed injuries were caused by the plaintiff’s work for the defendant;
(b)Whether the consequences of the claimed injuries were “serious” to the extent of satisfying the statutory requirement;
(c)To disentangle or exclude any psychiatric/psychological consequences which may be found under paragraph (c) of the definition of “serious injury”;
(d)Whether the consequences of the claimed injury were permanent; and
(e)The economic consequences for the injuries claimed by the plaintiff.
6 Whilst Mr McKenzie did not nominate the credit of the plaintiff as being a direct issue in this application, it was clear from the length and tenor of the cross-examination that the plaintiff’s credit was very much in issue.
The Statutory Scheme
7 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment with the defendant on or after 20 October 1999.[1]
[1]S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
10 The plaintiff was born on 25 July 1956 and is now aged fifty-five years. She was born in what was then known as Yugoslavia, and came to Australia in August of 1975.[3] The plaintiff is a married woman and has two grown up children, aged thirty-four and twenty-nine years.[4]
[3]PCB 6
[4]PCB 6
11 The plaintiff currently lives with her husband in a unit. The plaintiff has had basic education and required the services of an interpreter both for the purposes of giving evidence in this application and for attendances on medical practitioners.
12 The plaintiff originally was employed as a machine operator upon her arrival in Australia in 1975. She returned to Serbia and gave birth to her daughter some twenty-nine years ago in that country. From 1987, the plaintiff resumed work as a machine operator at BMP. The plaintiff subsequently worked for Gelpak Industries for fifteen years as a machine operator/process worker prior to commencing employment with the defendant in 2005. The plaintiff worked for the defendant from 2005 until 9 January 2009, when she was told the defendant could no longer give her full-time hours. She took this conversation to mean that she was “sacked”.[5]
[5]PCB 7
13 The plaintiff has not worked since 9 January 2009. The plaintiff claims she has not worked since that time due to the injuries to her spine, including neck, thoracic spine and lower back.
Injury with the Defendant
14 The plaintiff worked as a process worker for the defendant. Her role involved the assembly of sprinklers and other small parts. The work was classified as being very light work. However, the plaintiff gave evidence, and I find, that once the parts were boxed up, she was required seal the boxes. I also find that she was required, on occasions, to lift, with the help of other workers, boxes that may have weighed up to 30 kilograms.
15 The plaintiff, in her Claim Form dated 11 February 2009, nominated that the injury was to her neck, shoulders and lower back. The plaintiff set out that she was injured due to lifting large boxes off the ground and placing them on shelving, also bending down to close boxes on the ground. In the Claim Form, the plaintiff nominated that she first noticed the condition of injury to her back on 22 September 2008 and then the following words appear written next to the date:
“Throughout the course of employment”.[6]
[6]DCB 15 and 16
16 A proper reading of the Claim Form I find would be that the injury to her neck, shoulders and back were said to have occurred throughout the course of employment. The plaintiff, however, nominates 22 September 2008 as the critical date for her symptoms, particularly to her lower back, due to the incident at work on that date.
17 The plaintiff sets out the background to her injury in her affidavit dated 8 July 2010. In paragraph 7, she states as follows:
“In about the middle of 2008 I became aware of pain in my neck and shoulders. I took non-prescriptive pain medication which I needed to work. On the 22nd September, 2008 I was sealing up a full cardboard box of sprinklers on the floor with tape. The boxes were always filled to the brim and I had to push down on the folded over flaps of the box while pulling the tape over the top. Whilst performing this task I felt pain in my lower back. I told Peter my supervisor and he told me to take it easy. I took a fifteen minute break and then continued working. After this I was aware of ongoing back pain as well as neck and arm pain.”[7]
[7]PCB 8
18 The plaintiff was extensively challenged by Mr McKenzie, on behalf of the defendant, about the “incident” which the plaintiff said occurred on 22 September 2008. The plaintiff, in her evidence, outlined the normal role of her employment and the duties that she was required to undertake.[8]
[8]T66 and 67
19 The plaintiff was challenged about whether she had in fact reported the injury or incident which caused symptoms in her lower back to the defendant. The plaintiff gave evidence as follows:
Q:“If he says that sealing the boxes was a two person operation, he would’ve seen that and would’ve done the sealing work himself, wouldn’t he?---
A:Yeah, that was over there, and I was sealing the boxes. So how I hurt my back. And I tell him straightaway, my tape – I don’t know – got away from me.
Q:Your tape got away from you, is that what you’re saying?---
A:Yeah, and he saw when I push the box, and four, five time I asking him – he’s writing the book – he doesn’t tell me nothing, just go upstairs. I tell him to write it, see what kind of friend I have. If – if I have a friend tell me I injuring my back, and he been that moment with me, I don’t care if my factory or whatever – which one’s the factory – I write it and I report.
Q:So four or five times you told him to write it in the book?---
A:Yeah, more.
Q:More than four or five times?---
A:More than four. Every second day I asking him to write in the book.
Q:So is that every second day from September 2008 until January 2009?---
A:When I – when I hurt my back. When I hurt my – from that time.”[9]
[9]T 73, L25 – T 74, L14
20 The plaintiff, in her evidence, was cross-examined about the actual incident in September 2008. She gave clear and unequivocal evidence about the manner in which her low-back was injured on that occasion. Her evidence was as follows:
Q:“When you had back pain in September 2008 as you’ve described in paragraph 7 of your affidavit Peter was helping you, wasn’t he? He was holding the flaps down?---
A:(Through Interpreter) Yes, that box was long. He was on the other side and I was on this side. I was kneeling and when I was trying to pull that tape from one end to the other and across then I have the sharp pain and he was there and he saw it. When I had that sudden pain I threw the tape away and he saw that. And then he told me rest.
Q:So it’s a sudden pain in your low back?---
A:(Direct) Yeah. Yeah.
Q:And so bad that it’s – the pain is bad enough to make you throw the tape away, is that right?---
A:Yeah.
Q:And that in your hand – do you have a roll of tape on a gun that you - - - ?---
A:Yeah.
Q:- - - roll out?---
A:Yeah.
Q:And you thew (sic) that away when your back pain started?---
A:Yeah.
Q:Peter should’ve seen that, should he?---
A:I was – yeah, it is. And I was – very hard to – to get up from the box.
Q:The box was on the ground, wasn’t it?---
A:Yeah, the box was on the ground.
Q:And you’d been kneeling, hadn’t you?---
A:Yeah.
Q:Were you on the right or the left knee?---
A:I don’t know which side.
Q:What Peter says is that you rose from a kneeling position, and you momentarily lost your balance, and stubbed your toe on the corner of the carton, and mentioned that you had pain in your lower back?---
A:(Through Interpreter) I had the sharp sudden pain while I was trying to seal the box, and after that I threw the tape, and then I tried somehow to get up.
Q:You tried somehow to get up, did you? So you were in the process of getting up from a kneeling position, and the (sic) you the sharp sudden pain. What did you have to do to keep getting up?---
A:No, no, no, I was down on my knees, I was trying to seal the box. First I went from side to side, then I went from the back or back, and then I had the sharp pain. Then I threw the tape away, and after that I tried to get up.
Q:So you were on both knees, were you?---
A:Both of us were on both our knees trying to push the lid of the box.
Q:Both Peter and you on your knees. When you saw Mr Flanc, he asked you about this – this is at p.59 of the plaintiff’s court book, Your Honour – he says in the second last paragraph that you were bending over, closing the flaps of a box. Were you bending over? Or were you kneeling over?---
A:I was kneeling and bending over, as we are filling and pushing down, and trying to seal it. It was on the knees, and bended forward.
Q:So you’re on your knees, you’ve got the box on the ground, aren’t you?---
A:(Direct) exactly. (sic)
Q:So you were kneeling?---
A:(Through Interpreter) yes, and bending. (sic)
Q:Kneeling and bending?---
A:Over – kneeling and bending over the box.”[10]
[10]T 81, L27 – T83, L17
21 The plaintiff was continually challenged about how, or indeed if, any accident occurred on 22 September 2008. The plaintiff at all times nominated that her fellow worker, Peter Noorbergen, was with her at the time of her injury. The defendant tendered two statements made by Mr Peter Noorbergen. In the first statement dated 17 April 2009, Mr Noorbergen states as follows:
“It was noted an alleged injury to shoulders, neck, lower back took place on Monday 22 September 2008 and it was alleged that it was reported to me. I absolutely deny that ever was the situation as I enter all incidents no matter how minor, into an Injury Register and a search has revealed no such entry.”[11]
[11]DCB 4 and 5
22 Mr Noorbergen made a further and fuller statement, which was tendered on behalf of the defendant, dated 19 October 2010. In that statement, Mr Noorbergen nominates the dates of 15 and 16 September 2008 where he, after examining the company records, recalls packing the boxes as outlined by the plaintiff. Mr Noorbergen described the incident as follows:
“I folded over the flaps flat and held the flaps down and Kathy simply sealed the flaps with tape. As she rose from a kneeling position she momentarily lost her balance, stubbed her toe on the corner of the carton and mentioned she had a pain in her lower back. She was not lifting anything heavier than a tape gun. This took place in a conversational style and I casually suggested that she take a walk around the warehouse and I finished off the other 4 cartons.[12]
[12]DCB 7
23 The difference in the two statements made by Mr Noorbergen is more than merely that the incident occurred on a different date. Mr Noorbergen clearly recollects an incident where the plaintiff made a complaint directly to him about pain in her lower back after performing some work with him at the defendant’s premises. I accept the plaintiff’s version of the incident leading to the pain that she suffered in her lower back as a result of kneeling over and on the box in company with Mr Noorbergen in an attempt to tape it closed. It was whilst doing this awkward manoeuvre to close and seal the box by kneeling on it and reaching forward to affix the tape to it, that the plaintiff has hurt her back and experienced pain. She complained of pain in her lower back of at the time. Mr Noorbergen certainly recalls the plaintiff making a complaint of lower back pain.
24 I find that the plaintiff injured her lower back at work in September 2008 while she was leaning over and kneeling on a box in an attempt to close it and seal it shut with tape.
25 The fact that Mr Noorbergen did not see fit to enter the incident in the injury register or that the plaintiff did not immediately seek medical attention or advice at that time does not detract from the fact that the plaintiff was injured on that occasion at work. I accept the plaintiff was someone who was anxious to continue her work even though she had aches and pains. It is clear from the evidence that earlier than 2008 the plaintiff had had aches and pains and was seeking medical attention for them. Nevertheless, she continued to work. Her evidence was that she had taken over-the-counter analgesic and painkillers in order to assist her to continue to work. Indeed, the plaintiff continued to work after the incident in September 2008 until she was, in effect, “sacked” by the defendant in January 2009.
26 I find on the evidence that an injury did occur to the plaintiff’s lower back on or about 22 September 2008. That leaves the issue in this application as whether or not the consequences of the injury are significant to the plaintiff and, in particular, to the extent to satisfy the statutory test for serious injury.
The Plaintiff’s Medical Treatment
27 I have made a finding that the plaintiff injured her lower back on or about 22 September 2008. The plaintiff did not seek medical attention immediately. She continued with her work on the day of the injury. She thereafter continued work until December of 2008.
28 On or about 6 or 8 December 2008, the plaintiff attended her general practitioner, Dr Chan. The practice is a husband and wife practice where both Dr Chans ordinarily see the plaintiff. On 6 or 8 December 2008, the plaintiff was seen by Dr Christine Pham. On that occasion, the plaintiff complained of pain in her neck and pain over the trapezius of both left and right side. Dr Pham diagnosed a strain and queried whether it was related to the plaintiff’s work.[13] There are other comments in relation to the plaintiff’s history of hysterectomy and fibroids. They are not relevant for the purposes of this application.
[13]DCB 178(a) and 79
29 It is interesting to note that when the plaintiff first attended upon her usual general practitioner’s practice that she did not make a complaint of pain to her lower back. She was there with the complaint and symptoms that were occurring in her shoulders and neck. The evidence reveals that the neck and shoulder injuries have been ongoing for some years, as indeed had some low-back pain.
30 The plaintiff then attended Dr Pjesivac at the Hygia Medical Management Clinic on 16 December 2008. On the occasion that the plaintiff attended Dr Pjesivac, she complained of a four-year history of intermittent low-back pain and right sciatica. The past history that he took from the plaintiff was that she had had low-back pain dating back to 2004. When the plaintiff attended Dr Pjesivac on 16 December 2008, her complaint was relating to her low-back pain and referred pain down her legs. The plaintiff’s claim in this application is not advanced by the lack of records in the possession of Dr Pjesivac. He explains in his report that due to technical reasons, he does not have those records.[14]
[14]PCB 44
31 Dr Pjesivac consulted the plaintiff on five occasions from 16 December 2008, 13 January 2009, 20 January 2009, 29 January 2009 and 2 February 2009. Dr Pjesivac noted on 20 January 2009, that the plaintiff’s lower back pain was worsening and the bilateral sciatica, right more than left, was also becoming a greater problem for her. On 29 January 2009, Dr Pjesivac prescribed Mobic and Panadeine Forte for the plaintiff.
32 On 13 January 2009, Dr Pjesivac referred the plaintiff for a CT scan of the lumbosacral spine, which was performed on 14 January 2009. The following findings were made:
“Very mild diffuse annular disc bulging is seen at L4/5 level without evidence of significant thecal sac displacement. L5/S1 disc demonstrates relatively focal asymmetric bulging more pronounced to the left of the mid line where there is some compromise of the left S1 nerve root sheath. No extruded or sequested disc fragment is seen at any level.”[15]
[15]PCB 55
33 The plaintiff gave evidence that Dr Pjesivac was not interested in helping her with her WorkCover claim. The evidence was that Dr Pjesivac thought that the work was too light for the plaintiff to injure herself. I have checked the tapes against the Transcript, page 61, and the plaintiff did use the phrase “too light” rather than “too long”. Nevertheless, the totality of her evidence was that Dr Pjesivac was not interested in assisting her with her WorkCover claim and returned to the treatment of Dr Chan.
34 Dr Chan continues to be the treating general practitioner for the plaintiff. Dr Chan referred the plaintiff to Mr S Schofield, orthopaedic surgeon, for opinion and advice in relation to her low-back injury.[16] The referral was dated 6 August 2009.
[16]PCB 46
35 Mr Schofield was of the following opinion:
“I formed the opinion that, as far as her lumbar spine was concerned, your client had suffered injury to her lumbar spine as a result of the repetitive work involving standing, lifting and twisting causing acute swelling of the lumbosacral disc on or about the 22nd September 2008. Her clinical signs were consistent with injury to that disc involving muscle spasm, restricted straight leg raising and radiculopathy affecting the left leg.”[17]
[17]PCB 48
36 It is clear that Mr Schofield did not get the full history of using the tape machine to close the boxes as was outlined in the affidavit and evidence of the plaintiff. The history that he did take, as outlined at PCB 47, clearly sets out a combination of lifting and closing boxes as a history of what caused the injury. This history included a description of a twisting motion. I accept that Mr Schofield had sufficient history from the plaintiff as to the cause of the injury in September 2008 to form a view as to the correct nature of the injury that she suffered. Mr Schofield was of the view that the plaintiff had pre-existing degenerative changes at the lumbosacral level, but the work injury caused a significant aggravation to that degenerative change, at which time she developed a prolapse to the disc, resulting in back pain and referred leg pain.[18]
[18]PCB 48
37 The plaintiff was only seen by Mr Schofield on the one occasion, on 25 August 2009.
38 The plaintiff’s ongoing treatment is monthly reviews by her general practitioner, Dr Chan. She is prescribed medications by Dr Chan of Panadeine Forte, Mobic and Di-Gesic. The plaintiff gave evidence that she tries to take a limited amount of Panadeine Forte, as it upsets her stomach.
39 The plaintiff also received physiotherapy treatment from Michael Melamed. The plaintiff first consulted with Mr Melamed, physiotherapist, on 9 March 2010. The plaintiff continued with physiotherapy treatment at a2z Health Group until approximately June of 2011, when the WorkCover insurer ceased payments for that treatment. Mr Melamed recommended ongoing Pilates treatment and manual therapy for the plaintiff, but this has not been forthcoming.
40 The present treatment for the plaintiff is conservative in nature. She continues taking Panadeine Forte, although limits it to one to two tablets a day. She also takes Nurofen and a Di-Gesic tablet which she has been prescribed by Dr Chan.[19]
[19]PCB 14
The Medical Opinions
(a) Dr Anthony Chan
41 Dr Anthony Chan is the plaintiff’s general practitioner at the current time. The plaintiff has been attending the same medical practice, St James Avenue Medical Centre, intermittently since 1987. Dr Chan is in a position to give a long-term, overall opinion of the plaintiff’s current symptoms and diagnosis. Dr Chan has prepared four reports in respect of this application. They are dated 8 April 2009, 14 February 2010, 13 March 2011 and 30 October 2011.
42 Dr Chan took a history from the plaintiff concerning the injury to her lower back on 22 September 2008. The plaintiff stated to him that she did not go on WorkCover as she was afraid that her employer may terminate her job if she went on WorkCover. She kept on working in pain until 9 January 2009 when the defendant told her that there was “no more job for her”.[20] Dr Chan reported at that time that the plaintiff was having severe pain in her lower back and left sciatica.[21]
[20]PCB 34
[21]PCB 35
43 In his report dated 13 March 2011, Dr Chan listed the medications that the plaintiff was then taking as follows:
·“Mobic (15 milligrams per day)
·Panadeine Forte
·Serepax (intermittently for insomnia).”[22]
[22]PCB 38
44 Dr Chan noted that the plaintiff was suffering from gastritis. He stated that the cause of the gastritis and oesophagitis can be related to the usage of analgesia and anti-inflammatory medication.[23] Dr Chan’s diagnosis in respect of the plaintiff’s back was:
“L5/S1 annular disc bulge with left S1 nerve root compromise.”[24]
[23]PCB 38
[24]PCB 38
45 In his final report, Dr Chan notes a history from the plaintiff where she complains of pain in the lumbosacral area in the region of L3-L5 area, which radiates down her left leg. Dr Chan listed the medications as at October 2011 as follows:
·“Mobic (15 milligrams per day for inflammation)
·Panadeine Forte/Di-Gesic (for pain)
·Serepax (intermittently for insomnia)
·Nexium (for reflux).”[25]
[25]PCB 40
46 Dr Chan diagnosed the plaintiff’s condition as follows:
“Severe osteoarthritis of the cervical and lumbosacral spines
L5-S1 annual disc bulge with left S1 nerve root compromise
Mild oesophagitis and mild gastritis.”[26]
[26]PCB 41
47 In Dr Chan’s opinion, the plaintiff is permanently disabled from any work, based on her injuries, age and education. Dr Chan notes that the prognosis is poor and that the plaintiff will require further medication and physiotherapy when relapses occur.[27]
[27]PCB 41
(b) Dr Peter Pjesivac
48 The plaintiff attended the Hygia Medical Management Clinic and Dr Pjesivac on 16 December 2008. Dr Pjesivac was told that the plaintiff had a four-year history of intermittent low-back pain and right sciatica. Dr Pjesivac had access to the notes of Dr John Nash, who had previously treated the plaintiff for back pain complaints in 2002. Dr Pjesivac noted that by the time of the last consultation between the plaintiff and Dr Nash, that she was pain free and the examination was normal on 4 October 2002.
49 Dr Pjesivac referred the plaintiff for a CT scan of her lumbar spine. The CT scan revealed an L5-S1 asymmetric bulging of the L5-S1 disc, more pronounced to the left of the midline compromising the left S1 nerve root sheath.[28] Dr Pjesivac prescribed Mobic and Panadeine Forte for treatment of the plaintiff on 29 January 2009. The plaintiff last attended Dr Pjesivac on 2 February 2009.
[28]PCB 44
50 It is unfortunate that Dr Pjesivac’s full notes of the treatment received by the plaintiff between December 2008 and February 2009 have been lost due to some technical glitch at his clinics when moving from one place to another. It is clear from his report dated 16 February 2010 that Dr Pjesivac, by prescribing Mobic and Panadeine Forte, was dealing with a patient in pain. He was also the doctor who, by referral for a CT scan, first identified and diagnosed the disc bulge in the plaintiff’s lower back.
(c) Mr S F Schofield
51 Dr Chan referred the plaintiff to Mr Schofield, orthopaedic surgeon, in August of 2009. Mr Schofield took a history from the plaintiff where she had noted a past history of back pain prior to the incident in September 2008.
52 Mr Schofield saw the plaintiff on one occasion only; that is, 25 August 2009. He stated that his examination was confined to the lumbar spine as that was causing her the greatest disability. Mr Schofield was of the following opinions:
“I formed the opinion that, as far as her lumbar spine was concerned, your client had suffered injury to her lumbar spine as a result of the repetitive work involving standing, lifting and twisting causing an acute swelling of the lumbosacral disc on or about 22nd September 2008. Her clinical signs were consistent with the injury to that disc involving muscle spasm, restricted straight leg raising and radiculopathy affecting the left leg.
…
The acute injury of pain affecting her back and both legs is consistent with the development of a rupture of the posterior annulus at the lumbosacral level causing back pain and referred leg pains.
…
Although there was evidence of pre-existing degenerative change at the lumbosacral level, the injury sustained was a significant contributing factor to aggravation of that degenerative change, at which time she developed a prolapse.”[29]
[29]PCB 48
53 Mr Schofield expressed the opinion that the plaintiff was unfit for pre-injury employment and indeed unfit for alternative duties.[30] Mr Schofield clearly was of the opinion that the incident or injury of the plaintiff at work on 22 September 2008 was an aggravation of such severity that the plaintiff’s lower back had been compromised to the extent where she had a prolapsed disc and suffered pain and restriction of movement in her lower spine, causing her to be unfit for employment.
[30]PCB 49
(d) Mr Charles Flanc
54 Mr Charles Flanc is a vascular and general surgeon. He examined the plaintiff on 10 February 2010 for the purposes of a medico-legal report. He reported on 11 February 2010.
55 Mr Flanc took a history from the plaintiff that she did not have any pain in her lower back until a specific episode which occurred on 22 September 2008.[31] This history is clearly incorrect and the plaintiff was attacked for lack of credit in this regard. It is clear from the overall evidence in this case that the plaintiff had aches and pains and complaints about her neck and/or lower back prior to the incident which occurred on 22 September 2008.
[31]PCB 59
56 Mr Flanc had been given access to the history and reports of all the other medical practitioners as at that time and also the circumstances report of R D Wilson & Associates. He also had access to the radiological reports. Mr Flanc noted, in the body of his report, that:
“… the marked diffuse tenderness in the lumbosacral area together with very severe restriction of movement indicates that her symptoms are being significantly influenced by non-organic factors which makes an accurate assessment difficult and requires assessment by a psychiatrist.”[32]
[32]PCB 66
57 Mr Flanc then goes on to say:
“In my opinion her back pain has a genuine and significant underlying physical basis in the form of her symptomatic degenerative disease of the lumbar spine, notwithstanding any non-organic factors which may be influencing her symptoms.”[33]
[33]PCB 66
58 Mr Flanc notes that, in respect of the plaintiff’s duties at Naandan Jain Australia Pty Ltd (“Naandan”), his opinion is:
“… there is sufficient evidence to consider that she significantly aggravated her pre-existing disc degeneration of the lumbar spine by the incident of 22/9/2008. Repeated bending and lifting heavy boxes before this incident may have made her more vulnerable for such an aggravation.[34]
(Mr Flanc’s underlining for emphasis.)
[34]PCB 67
59 Mr Flanc noted that the plaintiff had been to see Dr Pjesivac before the termination of her employment in January 2009. When she went to Dr Pjesivac she was complaining of back pain and was being treated for it. Mr Flanc concluded that the back pain had started before her employment was terminated and that it was not a case where the plaintiff had made up the symptoms of back pain after she had been terminated.
60 Mr Flanc was of the view that in respect of work, the plaintiff was theoretically:
“…capable of work which involves light duties providing she can change position whenever necessary. She has a poor educational background and has always worked in factories and there is some doubt whether she could be retraining into a sustainable light occupation.”[35]
[35]PCB 79
61 In short, Mr Flanc ultimately had a full and correct history about the plaintiff’s previous back pain and concluded that the level of aggravation to her low-back injury has resulted in the level of disability and pain that the plaintiff now suffers. Mr Flanc was of the view the plaintiff could do light work.
(e) Mr David Brownbill
62 Mr David Brownbill is a consultant neurosurgeon. Mr Brownbill prepared two reports in respect of this application dated 10 February 2010 and 13 October 2011. In his first report, Mr Brownbill was given an incorrect history in respect of the past neck or back pain suffered by the plaintiff. In his first report, Mr Brownbill set out that the plaintiff had experienced aggravation of degenerative changes which were consistent as a result of the described repetitive work activities by the plaintiff. He was of the view that the aggravation of spinal degenerative changes arose out the plaintiff’s employment.[36] Mr Brownbill was of the opinion that the plaintiff was capable of attempting to return to work in a graded fashion, but not to return to her pre-injury occupation.[37] Mr Brownbill noted that the plaintiff showed an unusual emotional reaction to pain and it was outside his expertise of neurosurgery.
[36]PCB 75
[37]PCB 75
63 In his later report, Mr Brownbill noted his opinion as follows:
“Her demeanour and responses during the interview of the 11th of October 2011 suggested an element of emotional reaction which may be accentuating and perpetuating her own perception of pain and restriction, however I consider that on probability such emotional reaction has occurred in response to ongoing pain and activity restriction.
…
As I have stated previously I consider that on probability this lady suffered aggravation of pre existing cervical and thoraco lumbar spinal movements as a result of the described work activities giving rise to pain.”[38]
[38]PCB 80
64 Mr Brownbill noted that even though the aggravating factors of continual work had been removed, once the degenerative changes have been aggravated resulting in pain, they may continue in a fluctuating manner indefinitely.[39] Mr Brownbill noted the plaintiff was limping intermittently. He is the only doctor that made such an observation. The video surveillance on 24 September 2009 showed the plaintiff’s gait with a slight limp. Mr Brownbill was of the opinion that the plaintiff could do alternative duties.
[39]PCB 80
(f) Mr Peter Kudelka
65 Mr Kudelka is an orthopaedic surgeon. He examined the plaintiff on behalf of the defendant. As a result, Mr Kudelka prepared four reports dated 27 March 2009, 21 April 2009, 29 September 2009 and 5 October 2009.
66 Mr Kudelka was given an incorrect history by the plaintiff. He noted as follows:
“There is no history of previous nor subsequent injuries, abnormalities or conditions which affect the patient’s workplace injury. There are no non-compensable conditions which affect the patient’s capacity for work.”[40]
[40]DCB 112
67 Mr Kudelka found that, as at March of 2009, the plaintiff showed no sign of functional overlay, exaggeration, psychological or psychosomatic factors.[41]
[41]DCB 112
68 Mr Kudelka’s opinion was that the plaintiff’s symptoms were age-related and not related to her employment at Naandan.[42] Mr Kudelka stated that the plaintiff had a current work capacity.[43]
[42]DCB 112
[43]DCB 113
69 In his second report, dated 21 April 2009, Mr Kudelka confirmed his previous assessment as outlined above.[44]
[44]DCB 114
70 By his final report, dated 29 September 2009, Mr Kudelka was of the view that, whilst he noted resistance to examination by the plaintiff, he found it was not deliberate and was psychological.[45] Mr Kudelka’s diagnosis changed in his report in September 2009 from the previous opinions. He diagnosed that the work had aggravated the degenerative changes in the neck and back of the plaintiff. He went on to say that he believed that the plaintiff’s employment was a significant contributing factor to the development of symptoms in the neck and back on 22 September 2008.[46] Mr Kudelka also changed his opinion in respect of the work capacity of the plaintiff. He was of the opinion that she:
“… has no current capacity for her pre-injury employment irrespective of the restrictions, as she is uncomfortable standing, bending and lifting and uncomfortable with repetitive use of her hands.”[47]
[45]DCB 115
[46]DCB 116
[47]DCB 116
71 Mr Kudelka was asked to clarify the issues raised in his last report. He reaffirmed in his reported dated 5 October 2009, that:
“My opinion therefore is that this patient’s neck and back pains result from aggravation due to her assembly work at Naan-Dan Australia for three years. This did not cause the degenerative changes in the neck and back, but aggravated these pre-existing changes.”[48]
[48]DCB 118
(g) Mr Rodney Simm
72 Mr Rodney Simm is an orthopaedic surgeon. He was asked to examine the plaintiff on behalf of the defendant for medico-legal assessment. He prepared two reports dated 25 January 2011 and 16 August 2011. Mr Simm had an accurate previous history in respect of the low-back pain from the plaintiff. He also took a history from her that her symptoms were not improving and that she suffered from almost constant lumbar pain.[49] Mr Simm noted in the examination the plaintiff exhibited pain behaviour which included grunting, facial grimacing and verbal complaints of pain. In respect of his examination of the plaintiff’s lower back, he noted there was marked restriction of movement and that she was tender in the lumbar spine with tenderness extending to the left buttock. Mr Simm noted the neurological examination of the lower limbs revealed non-organic signs.[50]
[49]DCB 123
[50]DCB 124
73 Mr Simm, after examining the CT scan of the lumbar spine on 14 January 2009, formed the following opinion:
“The degenerative changes at the L5/S1 level of the lumbar spine with an associated left-sided posterior disc protrusion would also be reasonably common in some one of her age and not necessarily associated with symptoms. However, as with the cervical pathology, her presenting symptoms are consistent with symptoms arising from this pathology.”[51]
[51]DCB 125
74 Mr Simm diagnosed the following injury to the plaintiff’s lower back:
“Symptomatic L5/S1 lumbar disc degeneration with referred pain into the lower limbs. There are no clinical signs of radiculopathy.
…
On the basis of her history of acute onset of pain with increased levels of pain from the time of that incident, one could assume that the incident led to aggravation of the pre-existing lumbar disc degeneration and the aggravation has not ceased.”[52]
[52]DCB 126
75 Mr Simm was under the mistaken belief that the plaintiff’s onset of severe pain and symptoms came on after her work duties had been withdrawn. This is not a correct history, given that the plaintiff had been to see Dr Pjesivac for back pain prior to her termination of employment on 9 January 2009.[53]
[53]DCB 126
76 Mr Simm was of the opinion that the plaintiff had a capacity for light bench assembly type work.[54] Mr Simm, after being shown the Recovre report, identified that the plaintiff had capacity to work as a product assembler, a hand packer, a process worker or service assistant.[55]
[54]DCB 127
[55]DCB 130
Conclusion
77 In summary, the preponderance of medical opinion is that the plaintiff has suffered from an aggravation injury to her lumbar spine as a result of the employment with the defendant and, in particular, the incident on 22 September 2008. None of the medical practitioners have given an opinion that she requires any surgery at the present time or in the future. The medical opinions in this case clearly outline that the future treatment will be conservative in nature. This will involve medication for pain relief and perhaps some physiotherapy during the course of severe symptoms prevailing.
78 The medical opinions, whilst not canvassed in detail in respect of the neck and shoulder injuries, do not, in my opinion, amount to any great change in the plaintiff’s condition pre and post her employment at Naandan. I find that the real injury that has arisen from her employment at Naandan relates to her lower back. The medical evidence and the evidence of the plaintiff support that finding.
The Credit of the Plaintiff
79 The plaintiff was subjected to extensive cross-examination.
80 The initial attack on the plaintiff’s credit was that the injury alleged to have occurred on or about 22 September 2008 had not been reported at the time. The plaintiff had never received any medical treatment for the injury at that time. It is clear from the evidence, and indeed the tendered documents from the defendant in respect of Peter Noorbergen, that there was an incident at work which was reported by the plaintiff to Mr Noorbergen who was her immediate supervisor. I have dealt with this earlier in these reasons and I accept the plaintiff reported the incident as stated and, indeed, so does Mr Noorbergen. The only level of dispute between them was the date on which it occurred and the precise nature of the actions which caused the plaintiff to suffer exacerbated pain symptoms in her lower back. In that dispute, I accept the plaintiff’s evidence in that regard.
81 The plaintiff was also challenged on the basis that she had failed to disclose to the doctors the motor vehicle accident of 1985. The basis of the challenge was that the plaintiff was trying to hide previous injuries from the Court and from the doctors. It seems, based on the evidence of the plaintiff, that the injuries that she received at that time really were facial injuries and nothing to do with the low-back injury, the subject of this application. In any event, the plaintiff had worked for a period of some fifteen years at Gelpak, followed by almost five years at the defendant company in the interim. I find that the failure by the plaintiff to remember and/or mention the previous motor vehicle accident in 1985 has no relevance to her credit and, indeed, has no relevance to this application.
82 The plaintiff was also questioned and queried about the impact of the motor accident in 2007. The plaintiff very openly admitted to the accident of 2007 and it was a factor well known to all those that she worked with at Naandan. It was that well known that Mr Noorbergen, her supervisor, would pick her up from home and take to work, and take her home after work because she had lost her licence as a result of the 0.05 reading she had in respect to the 2007 accident. The records of the company indicate that the plaintiff had no more than two days off work immediately after the accident and she continued to work on from that time. I do not find that the plaintiff was trying to hide or seeking to downplay any resultant injuries in the 2007 accident as they affected the application in this case.
83 The next area of challenge to the plaintiff’s credit was that she had not made a claim for her injury until after her employment had been removed from her on 9 January 2009. The defendant’s proposition was that the plaintiff only sought compensation from the defendant after she had been “sacked”. An examination of the evidence reveals that the plaintiff had been to see Dr Pjesivac prior to her employment being terminated. She was not to know on 16 December 2008 when she attended Dr Pjesivac for the first time to complain of her low-back injury and symptoms that she was going to lose her employment early in January 2009. As it turned out, the CT scan performed on 14 January 2009 confirmed a physical and radiological basis for the symptoms that she was complaining in December 2008. All of the medical practitioners accept that to be the case. I find that the plaintiff may have deferred making a claim under worker’s compensation for fear of the fact that she may have lost her employment. That is not the same as saying that she made the claim because she did lose her employment.
84 The plaintiff was also challenged on the basis that she had continued to seek work on a full-time basis right up until the time she was sacked. The plaintiff was challenged on the basis that she had not sought assistance from medical practitioners immediately after and following the injury in September 2008. The following exchange took place during the course of cross-examination:
Q:“I suggest to you that you certainly made no complaint of any back pain at that stage when you saw that doctor at Dr Chan’s clinic?---
A:No, I did not complain, I didn’t want to complain about my pains because I put up with it and I continued to work.”[56]
[56]T 58, L12-16
85 The plaintiff was later asked:
Q:“Isn’t the real situation, Mrs Majkic, that you were still seeking full time permanent work doing this job, and you had no injury at all. What do you say?---
A:(Direct) no, I have injury. I was working my injury, but I drink the Nurofen, Panadol or whatever, anything to make my pain a bit less. I work in pain.”[57]
[57]T 63, L21-26
86 It is clear, and I accept, that the plaintiff, in respect of these answers, was someone who was prepared to work whilst in pain in order to continue her employment and make an income. There is no doubt on the evidence that the plaintiff was prescribed, and was in fact taking, painkilling medication at the relevant time.
87 Finally, the plaintiff was subject to video surveillance. The video surveillance was over two periods of 24 and 26 September 2009 and 1 February 2011. The total film shown of the plaintiff was 26 minutes and 11 seconds.[58] These DVD surveillance films are Exhibit 1 in the proceeding. The defendant admitted that plaintiff had been subject to surveillance for eight particular days for a total of 51 hours.[59] In effect, the amount of film shown was one per cent of the time that the plaintiff was under surveillance. On my observation of the plaintiff during the course of the video surveillance shown, it corroborated what she was saying about her restriction of movement and lack of mobility. I observed, on the first day of filming, 24 September 2009, that the plaintiff was limping as she walked along. This is in accord with the history that she gave to Mr Brownbill. The plaintiff, herself, never nominated that she was limping as a result of her pain. It was just there to be observed on the video surveillance.
[58]T 130
[59]Exhibit C
88 In conclusion, I accept what some of the medical practitioners referred to as exaggerating symptoms and non-organic signs are part of the plaintiff’s presentation as noted by medical practitioners. In the course of giving her evidence, there were times when the plaintiff was grimacing and making obvious movements to indicate that she was in pain. I do not find that the credit of the plaintiff has been damaged to the extent where she is not to be accepted in her description of the manner in which her symptoms became a problem for her and the fact that she does suffer pain and has been treated for it. In that regard, I accept that the plaintiff is genuine.
The Consequences
89 I have read the affidavits of the plaintiff sworn on 8 July 2010 and 17 November 2011. I have considered the evidence of the plaintiff contained in those affidavits. I have also heard the oral evidence given by the plaintiff and the extensive cross-examination of the plaintiff by Mr McKenzie. I assess the plaintiff as a reasonably straightforward person who was somewhat preoccupied with her medical condition and the limitation of her physical capacities as she identifies them to be. The plaintiff is not properly described as a stoical person. The plaintiff is someone who has continually sought treatment for her pain since the time of the results of her CT scan on 14 January 2009 have been known to her. I find that she sought the medical treatment leading up to that CT scan prior to her termination of employment.
90 The consequences the plaintiff has suffered as a result of the injury to her lower back are as follows:
· The plaintiff has difficulties with interrupted sleep and sleeping patterns. In her affidavit dated 8 July 2010, the plaintiff states:
“When trying to sleep I usually find it more comfortable for my back and neck to sleep on my stomach. I did not do this before my injury. I have to move sometimes in bed however and have to be carefully how I do this. I wake because of back pain and occasionally neck pain most nights. When this occurs it is better for me to get out of bed and move around to ease the discomfort. I often watch television for a while.”[60]
[60]PCB 11, paragraph 18
Dr Chan, in his report dated 13 March 2011, notes that the plaintiff is prescribed Serepax intermittently for insomnia.[61] I accept that the plaintiff, as a result of the pain suffered in the lower back, has an interruption to her sleep and as a consequence has difficulty in obtaining proper rest and that it is a very considerable consequence for her.
[61]PCB 38
·The plaintiff, in her affidavit dated 8 July 2010, stated that her worst pain is in her lower back.[62] She said that it also spread intermittently into her legs and is worse in the calves and it is usually worse on the left leg. In her evidence, the plaintiff stated that she had increased back pain after the incident of closing the box on 22 September 2008. She was asked:
[62]PCB 10, paragraph 13
Q: “Are you saying to His Honour that you had no problems with your back before that incident?---
A: That was sore to (sic) but not like that.”[63]
[63]T 51, L9-11
Later in her evidence, the plaintiff stated the following:
Q: “What is the difference before and after 22 September 2008?---
A: (Through Interpreter) The difference is in that on 22 September 2008 I injured myself while I was closing the box, that’s the difference.”
Q: Yes, what was the difference on your back?---
A: The pain.
Q: Yes, but what was the difference?---
A: How can I explain difference. It felt like somebody was stabbing me with a knife.
Q: How did your back progress then, up until finishing you on 9 January 2009? How did the back go over that period, that’s the question--- (sic)
A: I was in pain but – and I was suffering but I was trying to put up with that.”[64]
[64]T 149, L17-28
The plaintiff, when asked about where the pain was worse and related complaints, stated as follows:
Q: “As you are there now, which is worse for you, the upper back part on the neck or the lower back? What is worse for you?---
A: (Direct) Lower back – lower back. I always say that - - - .“[65]
[65]T150, L10-16
I accept that the plaintiff now is effectively in constant pain or has an aching sensation in her lower back with referral of pain down her left leg. This is a considerable consequence for the plaintiff.
·The plaintiff, as a result of being in pain, has a requirement for medication. It is to be noted that in the past; that is, prior to the incident of 22 September 2008, the plaintiff had intermittently used painkilling medication. Since January of 2009, the plaintiff has taken Panadeine Forte for the management of her pain symptoms. In her affidavit dated 17 November 2011, the plaintiff stated that she tried to limit the amount of Panadeine Forte that she took because it upset her stomach and made her constipated.[66] Dr Chan, in his report of 30 October 2011, stated that the plaintiff is currently on the following medications:
[66]PCB 14, paragraph 5
§ Mobic (15 milligram per day for inflammation)
§ Panadeine Forte/Di-Gesic (for pain)
§ Serepax (intermittently for insomnia)
§ Nexium (for reflux)[67]
[67]PCB 40
It is clear from this evidence, and I accept, that the plaintiff has a requirement for these medications to manage her symptoms. These medications have been necessary for the plaintiff to try and control the effect of the pain and the sequel of the injury to her. I find the necessity for the plaintiff to take medication of this amount and type to be a very considerable consequence for her. The plaintiff stated that ever since she got this back problem, she was constantly on medication.[68]
[68]T 114, L25-26
·The plaintiff’s treatment is currently managed by her general practitioner, Dr Chan. In the opinion of Dr Chan, the plaintiff needs the assistance of physiotherapy in the future in order to manage her symptoms. The insurers for the defendant withdrew funding for the treatment by way of physiotherapy which came in the forms of manual therapy and Pilates. The ongoing treatment from the general practitioner is the prescription of medications. There is no suggestion by any of the medical opinions that the plaintiff will face the prospect of surgery in the future. The ongoing necessity to attend on her general practitioner and, if necessary and able to afford it, her physiotherapist, is a consequence of the injury to the plaintiff.
·The plaintiff gave evidence that she was stiff in the morning and generally suffered from a lack of mobility as a result of the injury to her lower back. She also, after viewing the video of 24 September 2009, stated that she had limped on some occasions.[69] I accept that the plaintiff, as a result of the injury, has experienced a lack of mobility and stiffness in the movement of her body, particularly in relation to the lower back. I accept that the limitation of movement is a consequence of the accident suffered by the plaintiff.
[69]T 118
·The plaintiff gave evidence that her activities of daily living were impacted upon by the effect of the injury to her lower back. In particular, she stated that she was unable to do the vacuuming or the mopping of the floors at home.[70] It was clear on a proper examination of the evidence that she and her husband were mutually inter-dependent upon one another to perform some of the duties around the household. In simple terms, the plaintiff would stop doing her housework if she got tired or the pain was too severe and she would return to it later on.
[70]T 111, L17-20
After being cross-examined about the surveillance video, the plaintiff made the following statement:
“I always – I always go to the shops, I always go shopping, that’s my life.”[71]
It was clear that the plaintiff had now reduced her activities to be either around the unit where she lived with her husband, or going out to the shops. That change to her daily living without the interaction at her place of work is a very considerable consequence for her.
[71]T 123, L25-27
91 I conclude, that when gathered together and considered as a whole, the consequences outlined above amount to what can be fairly described as being more than “significant” or “marked” and as being “at least very considerable” pain and suffering consequences for the plaintiff.
Loss of Earning Capacity
92 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s.134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently: s.134AB(38)(e)(ii).
93 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
94 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
95 The defendant relies upon the opinions of Mr Schofield;[72] Mr Flanc;[73] Mr Brownbill;[74] Mr Simm;[75] and a report of Janette Ash of Recovre,[76] to support the proposition that the plaintiff has an ongoing work capacity in light alternative employment.
[72]PCB 49
[73]PCB 70
[74]PCB 74
[75]DCB 130
[76]DCB 137
96 The plaintiff relies on the opinions of Dr Chan[77] and Mr Kudelka[78] to support the proposition that she has no work capacity whatsoever. It is to be remembered that Dr Chan has certified the plaintiff as being an invalid pensioner.
[77]PCB 42
[78]DCB 115
97 I have extensively reviewed the medical opinions in these reasons for decision earlier and I accept that the plaintiff still retains the physical ability to perform light alternative employment as set out in the report of Recovre. I accept that with restrictions set out in that report, the plaintiff could work in what is described as suitable employment in the form of a product assembler, a hand packer, process worker, or a service assistant.
98 The plaintiff, in her evidence, gave a very clear impression that she was someone who enjoyed her work and liked her work. That, in part, was her explanation for continuing to work between the incident in September 2008 and when she was “sacked” on 9 January 2009. She continued to work despite the fact that she had pain. However, when she was asked whether she had applied for any jobs after January 2009, she said that:
“I believe I did not. When I lost my job with that paper I went – when I lost my job at Naandan I went with that paper to Social Security.”[79]
[79]T 141, L8-11
99 In short, the plaintiff has not tried to get herself another job. This is in the face of medical opinions that support the proposition that she has the capacity to do so.
100 In the submissions on behalf of the plaintiff, Mr Jewell said:
“And, on the earning capacity side of it, the 40 per cent business, that’s - it’s all duck or no dinner. We are either total or we are not - we’d accept that.”[80]
[80]T 230, L30 – T231, L2
101 In this case, I find that the plaintiff has failed to satisfy me on the requisite standard that she has lost her earning capacity to the extent of 40 per cent reduction in her gross “without injury” earnings.
102 The plaintiff’s application for serious injury certificate for loss of earning capacity is refused.
103 After consideration of all the evidence, I am of the view that this is a finely balanced case, but ultimately, taking into account all the consequences suffered by the plaintiff as a result of her lower back injury, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being more than “significant” or “marked” and at least being “very considerable”.
104 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the lower back injury suffered by her in the course of employment with the defendant, and particularly on 22 September 2008.
105 I will hear the parties on the question of costs.
- - -
0
1
0