Marrs v Prouds Jewellers Pty Ltd
[2020] VCC 917
•29 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02688
| REBECCA LOUISE MARRS | Plaintiff |
| v | |
| PROUDS JEWELLERS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 March 2020 | |
DATE OF JUDGMENT: | 29 June 2020 | |
CASE MAY BE CITED AS: | Marrs v Prouds Jewellers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 917 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right foot – loss of earning capacity and pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan & Ors [2006] VSCA 254; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
Judgment:Leave granted to the plaintiff to commence common law proceedings in relation to pain and suffering and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald SC with Mr B Hill | Shine Lawyers |
| For the Defendant | Mr J Batten | Lander and Rogers |
HER HONOUR:
1In April 2010, the plaintiff commenced employment with the defendant, working full time as a floor manager.
2On 12 December 2015, the plaintiff was walking from the office to the retail section of the store when she struck her right foot on an A-frame stepladder and injured her great toe. The plaintiff deposed that she had severe pain, and struggled to stand and walk. She took Nurofen and was able to continue working and finished her shift.
3The plaintiff’s evidence was that when she arrived home, she struggled to remove her shoe from her right foot as her foot was badly swollen. The pain and swelling did not settle, and she consulted her general practitioner, who bandaged her foot, advised her to ice her foot, referred her for an x-ray and prescribed pain medication.
4The plaintiff continued to work, used medication and took rest breaks when possible to manage her pain. She deposed that her right foot remained swollen and sore and her great toe was very painful. She struggled to walk.
5The plaintiff returned to consult her general practitioner in early January 2016 and underwent a CT scan, which diagnosed a mild hallux valgus and mild degenerative change within the first metatarsophalangeal joint (MTP joint) with no underlying osseous injury. The plaintiff was referred to an orthopaedic surgeon and took some time off work to help her toe heal.
6In February 2016, the plaintiff consulted Mr W H B Edwards, foot and ankle orthopaedic surgeon, who fitted the plaintiff with a moon boot for her right foot.
7In April 2016, the plaintiff underwent surgery to the right big toe and wore a moon boot for several months. The plaintiff was also referred for physiotherapy and hydrotherapy following surgery.
8In May 2016, Mr Edwards referred the plaintiff to Dr Euahna Varigos, pain management specialist, to assist with the management of Regional Pain Syndrome, and Dr Varigos prescribed Lyrica.
9In about July 2016, the plaintiff was fitted for a supportive shoe by Mr Paul Retschko, orthotist. The plaintiff’s evidence was that this aggravated her pain and she continued to wear the moon boot.
10In November 2016, the plaintiff had further surgery performed by Mr Edwards, following which the plaintiff developed blood clots in her right lung.
11In March 2017, the plaintiff returned to work at Angus & Coote in Point Cook. The plaintiff’s evidence was that she struggled being on her feet for long periods and her right foot and great toe were very sore and painful.
12The plaintiff underwent a third surgery performed by Mr Edwards. The plaintiff ceased work at this time.
13The plaintiff continued physiotherapy and hydrotherapy following the third surgery.
14In June 2017, Mr Retschko tried to fit the plaintiff for insole shoes without success and she continued to wear a moon boot.
15In June 2018, the plaintiff was referred to Dr Nick Christelis, pain specialist and anaesthetist, at Pain Specialists Australia.
16On 24 August 2018, Dr Christelis performed a pulsed neurofrequency treatment on the plaintiff’s lower back nerve roots on the right side.
17In late 2017/early 2018, the plaintiff returned to working at the defendant’s head office in Port Melbourne doing administrative duties. The plaintiff worked three hours a day, two days a week. After several months, in April 2018, she was sent to the Sunshine branch of the defendant, doing light duties three hours a day, a couple of days a week. The plaintiff covered lunch breaks, meaning she had to be on her feet during that period. The plaintiff’s symptoms worsened, and she ceased the return to work program in June 2018. The plaintiff has not returned to work since.
18In May 2019, the plaintiff had a spinal cord stimulator (SCS) implanted.
19On 17 January 2020, the plaintiff had a revision procedure to fix or replace the leads on the spinal cord stimulator.
The application
20This is an application brought by the plaintiff for leave pursuant to s328(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by her in the course of her employment with the defendant on 12 December 2015.
21The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity and pain and suffering.
22The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s325 of the Act.
23There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
24Counsel for the plaintiff submitted that the plaintiff’s application under sub-paragraph (a) is the stronger of the application.
25The body function relied upon in this application is injury to the right foot.
26The plaintiff relied upon two affidavits, sworn 9 November 2017 and 17 February 2020. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
27Counsel for the defendant submitted that:
(a)the issues relate to the nature and extent of injury flowing from the incident on 12 December 2015. The plaintiff did not sustain a severe injury from the incident and there was likely a significant deformity in the first MTP joint prior to the incident;
(b)the plaintiff developed a secondary psychiatric illness but ultimately, the plaintiff had pre-existing psychiatric problems, including panic attacks and depression, which must be disentangled;
(c)the credit of the plaintiff was in issue; and
(d)the plaintiff does not have an indefinite no current work capacity and has capacity to work in suitable employment.
Credit
28The plaintiff is forty-nine years of age, and lives with her children. The plaintiff completed Year 10 at school. Otherwise she had no further formal education. The plaintiff presented as an articulate witness. She was definite in her answers. On occasions, she elaborated in her responses. Counsel for the defendant submitted that the plaintiff’s credit was in issue.
29I formed the view that there were occasions when the plaintiff exaggerated the evidence, for example:
(a)the plaintiff’s evidence was that her toe was bruised following the December 2015 incident at work. The medical records of her general practitioner described the subject toe as swollen, which is consistent with what the plaintiff swore to in her first affidavit;
(b)in her first affidavit, the plaintiff said she injured her right foot on an A-frame stepladder. She was injured, in severe pain, struggling to stand and to walk. The incident was recorded, and the video was played to the Court. The plaintiff was observed leaving a room, striking her foot on a small black stool/small ladder with her right foot. The object moved. The plaintiff’s evidence was that the flooring was carpet. The plaintiff moved the object out of the way and appeared to walk at a similar pace to the pace she adopted prior to the injury. I could not observe any facial expression/ distress or change in her gait.
30In cross-examination, the plaintiff said that she had taken two Endone tablets before attending Court. She said that since the spinal cord stimulator was implanted, she has had problems with sitting for more than an hour. The plaintiff said that she must “wriggle around” if she is seated for long periods. This is consistent with what she reported to medical witnesses and what I observed of the plaintiff in Court. She accepted that her pain levels had reduced as a result of the spinal cord stimulator. Further in cross-examination, the plaintiff agreed that she had improved dramatically between the time she swore her first affidavit on 9 November 2017 and when she swore her second affidavit on 17 February 2020.[1] I accept that the plaintiff made this concession, which I take into account in assessing her credit.
[1]Transcript (“T”) 46, Lines (“L”) 1-5
31In cross-examination, the plaintiff accepted that between the period of February 2006 and March 2008, she earned close to $71,000 at Hoskins Jewellers, Crown Casino and Michael Hill, and declared to Centrelink that she earned $13,000. The plaintiff agreed that she was required to repay money to Centrelink. The plaintiff’s evidence in relation to this was:[2]
“… it was a stupid time in my life, one I’m not proud of.”
[2]T34, L10-11
32In the plaintiff’s Worker’s Injury Claim Form dated 7 January 2016, she did not disclose that she had a previous injury/condition (or personal injury claim) relating to her right toe injury, the subject of the claim. In cross-examination, the plaintiff was taken through the history of her medical records. The plaintiff accepted that she had several attendances at medical practitioners and had undergone several x-rays relating to her right big toe prior to her work injury. The plaintiff said she clearly did not read the question properly in the Claim Form. I concluded that she was not truthful in her answer to the question in the Claim Form.
33Counsel for the defendant submitted that the plaintiff did not fully disclose to the medical witnesses an accurate history of the medical condition relating to the right big toe.
34The plaintiff’s previous history relating to the right great toe was:
(a)The plaintiff’s evidence was that in the 1990s, she injured her right great toe, from which she recovered;
(b)In November 2005, radiology reports disclosed that the plaintiff underwent an x-ray and ultrasound of the right foot. The radiology concluded mild right 1st MTP joint osteoarthritis and right plantar fasciitis, and noted that an ultrasound-guided steroid injection may be of therapeutic benefit;
(c)On 11 and 27 April and 11 May 2011, radiology reports of the Sunshine Hospital confirm the plaintiff reported a stubbed toe and dislocated right great toe. X-rays of the right foot taken on the above-mentioned dates were compared. The findings were:
“Overlying cast obscures bony detail. [P]reviously demonstrated fracture of the proximal phalanx of the great toe is not clearly visualised. Hallux valgus is noted. There is no dislocation.”
An x-ray later noted that the plaintiff had a hallux vulgus and no dislocation;
(d)The clinical records of the Caroline Springs Clinic were before the Court. Those records confirm that on 20 April 2011, the plaintiff reported fracturing her big toe and was seen in the Emergency Department and was attending for review. The plaster was intact, there was still swelling and a bruised right big toe. The plaintiff was prescribed medication of Brufen and Panadeine Forte;
(e)On 4 May 2011, the plaintiff attended the Caroline Springs Clinic for unrelated conditions. It was noted that “still has plaster on”;
(f)On 3 November 2011, the plaintiff attended the Caroline Springs Clinic reporting hitting a small table with her right foot and re-injuring the right big toe which was swollen since. On examination, there was swelling and tenderness to the big toe. The plaintiff was advised to rest, elevate and ice the foot. Diagnostic imaging was requested, which x-rays showed degenerative changes, but no fracture. The plaintiff was prescribed Mobic;
(g)On 21 March 2012, the plaintiff reported a painful right great toe, with some ankle and hip strain, not being able to weight bear and her right big toe always being raised. She was provided with a referral to the Orthopaedic Department at Western Hospital. She did not recall attending the hospital and believed her toe was fine until December 2015, when she injured it at work. There were no records to indicate that the plaintiff had attended the Orthopaedic Department at the Western Hospital.
35The plaintiff reported to all medical witnesses having a previous history of a right great toe fracture which required intervention, but which entirely settled. In summary, the plaintiff reported:
(a)In February 2016, Mr Edwards, treating orthopaedic surgeon, noted a previous history of a right great toe fracture which required intervention but entirely settled.[3] Mr Edwards reported this to Dr Saheed Adegbola, general practitioner, in a report dated 11 February 2016;
[3]Plaintiff’s Court Book (“PCB”) 112
(b)In March 2016, the plaintiff reported to Dr Roy Karna, rheumatologist, that five years ago in non-work related circumstances, she stubbed her great toe of the right foot going up some stairs and suffered a small fracture which required a manipulation under anaesthetic to “realign the bone”. She said that the procedure was successful and she was rendered asymptomatic with no functional incapacity, such that she was able to perform all activities of daily living at home, perform her work – much of which was on her feet – whilst in the store, go for walks, do housecleaning et cetera, all without difficulty or requiring any treatment;
(c)In August 2017, the plaintiff disclosed to Mr Baynes, an occupational physician, “… a past history of a fractured right big toe seven years ago when she knocked it against a step at home …”;[4]
[4]PCB 213
(d)In a report dated 29 October 2017, Dr Lyndon Best, treating general practitioner of Cairnlea Superclinic, reported that prior to the injury, the plaintiff’s right great toe was not causing significant problems, although she did have a past history of fracture to the toe;
(e)In February 2018, the plaintiff was examined by Dr Joseph Slesenger, specialist occupational physician. He obtained a history of –
“… a right foot injury, resulting in a fracture about 8 years ago, which was not work-related. She advised that this required manipulation under anaesthesia, but did not require open reduction internal fixation. She advised that this was complicated by further contusion some months later.”[5]
(f)In October 2018, the plaintiff reported to Mr Stephen Doig, orthopaedic surgeon, a history of a fractured big toe in 2010 which was treated with a manipulation and plaster, and made a full recovery with no ongoing problem;
(g)In February 2020, the plaintiff was medically examined by Dr Peter Blombery, pain specialist/cardiologist. Dr Blombery was provided with radiological reports, including reports of November 2005 and November 2011, as well as all subsequent reports following the work injury of 2015; however, he did not refer to any past history in the body of his report;
(h)In February 2020, the plaintiff was medically examined by Dr Andrew Beischer, foot and ankle surgeon - orthopaedic surgeon, who obtained a history that she had injuries to her great toe prior to her work-related injury.
[5]DCB 20
36I accept that the plaintiff provided a previous history of a fracture to the medical witnesses. I take into account that following the complaints pertaining to the great toe in 2011 and 2012, the plaintiff did not report ongoing problems with her right great toe, did not have any ongoing treatment and her ability to work or activities of daily life were not affected.
37I accept that between March 2012 and December 2015, the medical records confirm that the plaintiff made no further complaints to medical practitioners about her right great toe.
38The plaintiff’s evidence was that she led an active life and attended the gym regularly during this period. The video evidence of the plaintiff at work prior to the work injury confirmed that she moved quickly and without restriction.
39I accept that the plaintiff disclosed to medical witnesses a history of her prior problems with her right big toe. These are matters which I take into account when considering the respective opinions of the medical witnesses and when analysing their evidence.
40Furthermore, the plaintiff’s first affidavit was silent about her prior medical history relating to her big toe. It was not in issue that the plaintiff did not disclose her prior medical history relating to her right big toe in her first affidavit. That was an omission/oversight which was unexplained.
41Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[6]
[6]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
42The credibility of the plaintiff as a witness and as a historian of her symptoms to medical practitioners is of central importance. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as a historian.[7]
[7]For example Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners & Ors v Podolak (2005) 14 VR 622at paragraph [46]; Dordev v Cowan & Ors [2006] VSCA 254 at paragraphs [14]-[19]
43A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[8]
[8]Dordev v Cowan & Ors (supra)
44The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of matters does not mean that all the medical opinions relied upon by the plaintiff should be disregarded.
45In Cakir v Arnott’s Biscuits Pty Ltd,[9] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application.
[9][2007] VSCA 104 at paragraphs [49]-[58]
46I concluded that the submissions of the defendant relating to the plaintiff’s credit fell into four main categories:
·the plaintiff had understated her earnings to Centrelink, with the result that she had to refund monies to Centrelink;
·the plaintiff did not disclose her prior injury to her big toe in the Claim Form;
·the plaintiff failed to provide a detailed medical history in relation to her right big toe. If she was specifically asked about her prior history, in most instances she minimised that history; and
·the plaintiff’s failure to refer to her past medical history in her first affidavit, which was unexplained in her second affidavit.
47It was not in dispute that the plaintiff understated her earnings to Centrelink and she did not disclose her prior injury in the Claim Form. I consider her explanation in Court that she had not read the Form properly a hollow excuse. Both of those matters go directly to the plaintiff’s credit. Accordingly, I will place greater weight upon her evidence when supported by other independent evidence.
48In relation to the plaintiff’s medical history, I consider she disclosed a limited history to the medical witnesses who examined and treated her. These are matters I will consider when considering their evidence. I also note that her medical history and the consequences she suffered that she reported to doctors, was consistent.
49Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[10]
[10]Sejranovic v Berkeley Challenge Pty Ltd (ibid)
50I take into account that the plaintiff was cross-examined about her physical state in the 1990s, 2005, 2011 and 2012, and what she was reporting to medical witnesses and what medical advice she received. Given the plaintiff’s limited education and the lapse in time, I consider the failure to remember details explainable.
51There was evidence in the plaintiff’s affidavits that was not challenged by the defendant.
52I note that in 2017, the plaintiff was under considerable stress as a result of her son’s death.
53However, I accept that there are strong factors that undermine the credibility of the plaintiff.
The medical evidence
54The current medical evidence was expressed by Mr W H B Edwards, foot and ankle surgeon-orthopaedic; Dr Varigos, anaesthetist; Dr Joseph Slesenger, occupational physician; Dr Nick Christelis, pain specialist, physician and anaesthetist; Dr Peter Blombery, pain specialist; Dr Stephen Doig, orthopaedic surgeon, and Mr Andrew Beischer, foot and ankle orthopaedic surgeon.
Mr W H B Edwards
55In February 2016, Mr W H B Edwards, foot and ankle surgeon - orthopaedic, examined the plaintiff. Mr Edwards obtained a history from the plaintiff of a right great toe fracture which required intervention, but which entirely settled. The plaintiff reported that her right foot was completely normal before she injured it on 12 December 2015 when she stubbed it into a ladder at work.
56Mr Edwards diagnosed a traumatic hallux vulgas, with bunion changes and moderate first metatarsophalangeal osteoarthritis. Mr Edwards concluded that the plaintiff had a traumatic bunion of the right foot.
57As a result of the investigations and the fact that the plaintiff reported a previous history of DVT, Mr Edwards reluctantly recommended surgery, which was performed in April 2016.
58In June 2016, Mr Edwards confirmed that the plaintiff developed neurogenic pain and dorsiflexion contracture.
59In October 2016, Mr Edwards reviewed the plaintiff and said she had a dorsiflexion contracture of the great toe in the setting of neurogenic pain and probably MTP arthritis. He thought she was unlikely to improve with further conservative care. He recommended a first MTP fusion with bone graft, which was performed in November 2016. The plaintiff was placed in a plaster cast, and in December 2016, she proceeded to a cam boot. The recommendation was at ten weeks she should use a solid shoe with an insole. The plaintiff reported increasing neurogenic pain.
60In March 2017, due to increased pain reported by the plaintiff, Mr Edwards recommended a cautious release of the nerve associated with synovectomy of the associated long motors if they are impinging.
61In May 2017, Mr Edwards reviewed the plaintiff and reported that she still had significant pain and was consulting Dr Varigos. He recommended she continue pain management, hydrotherapy and physiotherapy. Mr Edwards was dubious of any further surgery and scheduled to review the plaintiff in a few months’ time.
62In August 2017, Mr Edwards reviewed the plaintiff and reported she had neurogenic pain and is under the care of Dr Varigos for this, as well as her podiatrist. He was of the view she needed to change, such that she wears a solid shoe with an insole to continue treatment for nerve-related pain. He maintained the view that any further orthopaedic surgery would not help the plaintiff. There is no evidence that Mr Edwards reviewed the plaintiff again.
63Mr Edwards accepted that the plaintiff’s condition was work related.[11]
[11]PCB 142
Dr Varigos
64In January 2018, Dr Varigos, an anaesthetist who specialised in pain management, examined the plaintiff on referral from Mr W Edwards. Dr Varigos said that following the surgery of the plaintiff’s right foot for post-traumatic hallux valgus with medial planter proper digital neuritis, she showed signs and symptoms consistent with Chronic Regional Pain Syndrome (“CRPS”); that is, swelling, hypersensitivity, allodynia and colour changes of her right foot. The plaintiff improved; however, in November 2016, she returned for further surgery for dorsiflexion varus of the great toe with post-traumatic arthritis and her CRPS symptoms returned.
65The plaintiff returned for further surgery with Mr Edwards on 3 May 2017 for right tarsal tunnel syndrome with medial planter neuritis. Her CRPS symptoms were present. Dr Varigos said once her symptoms stabilised, he would refer the plaintiff to a pain clinic that could offer her multi-disciplinary support.
Dr Joseph Slesenger
66In February 2018, Dr Joseph Slesenger, occupational physician, medically examined the plaintiff at the request of the defendant. Dr Slesenger had a history of a right foot injury resulting in a fracture approximately in 2012 which was not work related.
67Dr Slesenger was satisfied that the plaintiff has suffered a contusion injury to her right foot and was diagnosed with a post-traumatic hallux valgus, requiring bone grafting and internal fixation of the 1st metatarsal, a wedge osteotomy and neurolysis of the planter medial nerve, as well as excision of the sub-hallaucil bursa.
68Dr Slesenger was satisfied that the current symptoms are related to the work accident. He thought the plaintiff’s work materially contributed to the accident. He imposed limitations upon her sitting, standing, walking, bending, lifting, driving, pushing and pulling. He was satisfied with the current return to work arrangements.
Dr Nick Christelis
69In June 2018, the plaintiff was referred to Dr Nick Christelis, pain specialist, physician and anaesthetist, for further treatment. Dr Christelis confirmed that the plaintiff was making excellent progress following the implant of a spinal cord stimulator in May 2019. As a result, she was no longer using her walking aid and was out of the cam boot. She was attending physiotherapy and occupational therapy. It was his opinion that the plaintiff’s injuries had stabilised. He said it was difficult to say whether the injury was continuing to improve, and to predict the timing of any improvement. He predicted that the plaintiff will continue to make progress with the treatment recommended.
70In November 2019, the plaintiff underwent breast surgery, which resulted in one of her spinal cord stimulator leads malfunctioning and not working. As a result, the pain returned and she started to regress.
71In February 2020, Dr Christelis confirmed that the plaintiff’s condition was stable and permanent.
Dr Peter Blombery
72In February 2020, Dr Peter Blombery, pain specialist, medically examined the plaintiff at the request of her solicitors. He diagnosed injuries to the right first metatarsophalangeal joint, requiring surgical intervention and complicated by severe CRPS Type I, requiring a spinal cord stimulator. He said her prognosis for recovery is poor.
73Dr Blombery was of the view that the plaintiff is required to undergo monitoring because of the spinal cord stimulator which may need to be changed or replaced at some stage. He said that she is going to require ongoing treatment with medications and possibly with the use of a local anaesthesia patch. Dr Blombery accepted the plaintiff’s injury was work related.
Mr Stephen Doig
74In February 2020, Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff at the request of her solicitors. He diagnosed an injury of post-traumatic arthritis of the first MTP joint of the right foot with a significant complication of CRPS. He accepted that these injuries are a direct result of the work injury on 12 December 2015. He said her prognosis is guarded. Further, the spinal cord simulator had given her significant relief compared to what she was like when he last saw her. He said the injury was significantly restricting her social, domestic and recreational activities. He accepted that the restrictions will continue into the foreseeable future.
Mr Andrew Beischer
75In January 2019 and February 2020, Mr Andrew Beischer, foot and ankle orthopaedic surgeon, examined the plaintiff at the request of the defendant and provided two medical reports relating to the plaintiff.
76Mr Beischer described the plaintiff’s current condition as a painful foot, with evidence of ongoing CRPS, dysesthesia, stiffness and dorsal elevation of the great and second toes, resulting in a significant reduction in her ability to stand or walk for anything more than 5 to 10 minutes. He noted that as a result of the spinal cord simulator, the plaintiff’s pain has reduced approximately 30 to 40 per cent.
77Mr Beischer’s first report was based on materials, including CCTV footage provided by the defendant’s solicitor. The plaintiff was not examined or consulted for the purpose of the report. Based on material provided to him, Mr Beischer said it is likely that the plaintiff had a longstanding problem with her great toe. He said it certainly was possible that the injury mechanism that he observed may have exacerbated an already abnormal great toe and the plaintiff may have had an exacerbation of a previously symptomatic MTP joint with the work injury. However, he did not believe she had a severe injury to a normal great toe in her work-related incident.
78In the January 2020 report, the plaintiff was medically examined by Mr Beischer. The plaintiff provided a history of her right foot, both before and after the work-related injury. The plaintiff said that although she had injured her great right toe to prior to her work-related injury, her toe function was good prior to the work injury. The alignment was good, and she could perform recreational activities including walking fast on a treadmill, working out at a gym and was not restricted with any footwear. Mr Beischer was of the view that this was contrary to the evidence in the Sunshine Hospital records of April 2011, the subsequent x-ray in May 2011 and the records of her general practitioner, Dr Ahmed Tilly. In March 2012, Dr Tilly recorded that the plaintiff reported pain in her right toe and obvious deformity. Mr Beischer said it was unlikely that the deformity in the right toe would spontaneously realign.
79Mr Beischer said the plaintiff’s current situation is a combination of a foot that had been injured prior to the work-related incident, possibly exacerbated by the work-related injury, and a consequence of surgery undertaken subsequently, such that the plaintiff sustained complications of the first metatarsal fracture, nerve injury and CRPS, a lot of which relates to the consequences of her foot surgical interventions.
80Based on documentary evidence, Mr Beischer was of the view that the plaintiff likely had a deformity of the right hallux, and was probably developing arthritis in the great toe joint and it was likely she would have experienced progressively worsening symptoms of pain, stiffness and toe deformity such that she would need a fusion of her first toe joint even without the possible exacerbation of symptoms possibly caused by her work-related injury.
81In relation to Mr Beischer’s reports, I note the following matters:
(a)In both his reports, Mr Beischer stated that it was his understanding that the plaintiff did not report to Mr Edwards, her treating surgeon, that she had previously had issues with her toe. Mr Beischer said it appeared that Mr Edwards thought her situation was due to an acute recent injury. In February 2016 in a letter from Mr Edwards to the plaintiff’s general practitioner Dr Saheed Adegbola, Mr Edward said the plaintiff had a previous history of a right great toe fracture which required intervention, but which entirely settled;
(b)Mr Beischer did not refer to the fact that the plaintiff had not sought medical treatment for her right great toe since March 2012, despite the fact that between March 2012 and December 2015, she attended her general practitioner on numerous occasions for other medical conditions, without reporting any issues with the right toe;
(c)During the period March 2012 and December 2015, the plaintiff was employed, working full time in a managerial role which required her to be on her feet all day;
(d)The work injury was the subject of surveillance which Mr Beischer viewed. The surveillance depicted the plaintiff moving at a fast pace prior to the incident;
(e)At the plaintiff’s first consultation with Mr Edwards, he identified that the plaintiff was developing CRPS. Dr Varigos, Dr Blombery and Mr Doig also accepted that the plaintiff has CRPS. The CRPS was not addressed by Mr Beischer.
82Mr Beischer was alone in his opinion that the plaintiff’s injury was pre-existing, although he did accept that there was a possible exacerbation from the work injury. The other medical witnesses obtained a similar history to that expressed by Mr Edwards, namely that the plaintiff had a previous history of right great toe fracture, which required intervention, but which entirely settled. Furthermore, that the plaintiff was able to engage in physical activity and work full time. The majority of the medical witnesses, being Mr Edwards, treating surgeon, Mr Peter Blombery, Mr Stephen Doig and Dr Slesenger, accepted that the plaintiff’s injury was work related. Mr Doig viewed the video footage, which showed the plaintiff kicking a small footstool with her right foot. The plaintiff moved the footstool out of the way and walked behind the counter, then through the doorway into the public area and then left. Mr Doig said the plaintiff did not appear to walk with a limp at that stage. She did not appear to be distressed, but he said the view is from above/down and he could see no facial expressions. He accepted that the footage confirmed that she walked into a footstool. It did not alter the rest of his opinion.
83Based on the majority of the medical reports, I accept that the injury is work related.
Loss of earnings
84I shall now consider whether the plaintiff meets the test of loss of earnings. The plaintiff has a specific burden to establish, in relation to loss of earning capacity:
(a)that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;
(b)that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more; and
(c)this requires a comparison of what the plaintiff is capable of earning with the injury (the “with injury” earnings), and what she was capable of earning had the injury not occurred (the “without injury” earnings);
(d)that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more;
(e)if the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity;
(f)consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments;
85As at the date of injury, the plaintiff was employed as a retail store manager with the defendant, having commenced in that role in April 2010. She worked full time, usually 38 hours per week, earning $1,019 gross per week. Most of her work involved floor work, working at the front of the store dealing with the public, selling jewellery, setting up store windows and assisting co-workers. She performed some administrative/office-based tasks, such as the staffing roster.
86The plaintiff injured herself in December 2015. Despite the pain, she continued working and finished her shift. She consulted her general practitioner and because it was a busy time of the year, she returned to work with the assistance of medication and breaks to manage the pain. In early 2016, she took time off work to try and help her foot to heal. In February 2016, she consulted Mr Edwards, who referred her for further investigations and fitted her with a moon boot.
87In February 2016, an Occupational Rehabilitation Workplace Assessment Report was conducted by IPAR in consultation with the plaintiff’s general practitioner, who endorsed the plaintiff for a trial of the duties subject to a return to work trial on 22 February 2016.
88In early March 2016, the plaintiff returned to work performing light duties, mainly administrative office work. She struggled at work because of the ongoing pain and limited ability to walk. Around July 2016, the plaintiff returned to work performing light duties, working reduced hours for two to three days per week. She gradually increased her hours but struggled at work. She managed pain with medication and rest breaks.
89In October 2016, Mr Edwards recommended further surgery, which she underwent. She was referred to a physiotherapist, who provided limited benefits. The plaintiff was off work until March 2017, when she returned to work at the Angus & Coote store at Point Cook. She was required to be on her feet for long periods of time and struggled due to the pain.
90In May 2017 the plaintiff was referred by Mr Edwards for further surgery. In August 2017, Mr Edwards said that the plaintiff has no capacity for work, and any capacity to return to sedentary or semi-sedentary work would be determined by her neurogenic pain rather than her orthopaedic condition.
91In late 2017/early 2018, the plaintiff returned to working at the defendant’s head office in Port Melbourne doing administrative duties three hours a day, two days a week. In April 2018, she was sent to the Sunshine branch of the defendant, doing light duties which included covering lunch breaks for three hours a day, a couple of days a week. The plaintiff’s symptoms worsened, and she ceased the return to work program in June 2018. The plaintiff has not returned to work since.
92The current medical evidence was expressed by Dr Slesenger, Mr Doig and Dr Blombery.
93In January 2018, an IPAR report identified suitable employment options based on a current Certificate of Capacity from the plaintiff’s treating physiotherapist. The employment options identified were:
(a)Administrative Assistant;
(b)Customer Service Officer;
(c)Receptionist;
(d)Records and Filing Clerk; and
(e)Sales Consultant.
94In February 2018, Dr Slesenger was aware the plaintiff was working three hours per day, five days per week. He thought the plaintiff could increase her hours to full time over an eight to ten-week period. He thought the plaintiff could perform the work of an administrative assistant and a customer service officer. Any receptionist work would involve a worksite visit to address the manual handling and postural demands. He said the plaintiff could not perform duties as a record and filing clerk, nor sales consultant. He recommended reviewing the plaintiff in three to four months. I note that no such review was conducted.
95At the time of writing his report in February 2018, Dr Slesenger could not have been aware that the plaintiff had to cease this work in June 2018 due to pain and has not been able to return to work since.
96Dr Slesenger said the plaintiff had the following limitations:
(a)sitting – unlimited;
(b)standing – 10 minutes;
(c)walking – up to 10 minutes;
(d)bending – occasionally;
(e)lifting, pushing and pulling – up to 5 kilograms;
(f)pushing – up to 5 kilograms;
(g)No capacity to drive.
97Dr Slesenger said the plaintiff reported similar symptoms and functional tolerances.
98I take into account that at the time of Dr Slesenger’s report, the plaintiff did not have a spinal cord stimulator implanted. Since this procedure, the plaintiff has reported a limitation in her siting capacity due to the position of the stimulator.
99In February 2020, Mr Doig said it is possible that the plaintiff may be able to go back to work on light duties, not doing any heavy lifting, pushing, pulling or carrying, and not being on her feet for any significant period. He did not consider she would be fit for that for at least the next three to six months and at that stage, may be capable of going back to doing light duties, but it would depend on her progression. I accept Mr Doig’s view is that the plaintiff’s return to light duties will depend on her progress and is a possibility, not an absolute.
100In April 2020, Dr Blombery said the plaintiff had no capacity for employment because of her injuries, which is likely to be permanent. He was of the view that the plaintiff is going to be restricted markedly in relation to her social, domestic, recreational and employment activities as a result of the injury. He thought the restrictions would be permanent.
101In February 2020, Erin Williams Consulting provided a vocational assessment report. The plaintiff reported having difficulty standing from a seated position, due to tenderness in the surgical site in her lower back, and walking with a right-sided limp. Ms Williams noted that the plaintiff was emotional when she talked about how much she enjoyed and missed working in the retail industry and the impact of her injury on her life and family.
102The plaintiff reported the following restrictions:
(a)Walking with a tolerance of approximately 10 minutes before she must sit and rest due to pain;
(b)Whilst standing, she must constantly change posture, and she typically avoids standing when she can;
(c)Difficulty sitting due to the placement of the spinal cord stimulator;
(d)Unable to kneel and squat, and if kneeling or squatting, has difficulty in being able to get up;
(e)Can bend to pick up light objects if not required to do so repetitively. She reported she would be unable to do this on a bad day;
(f)Unable to reach high above her head;
(g)Limited to a maximum of 5 kilograms when lifting or carrying and, due to recent surgery, she is limited to carrying 2 kilograms; and
(h)Limited when driving as her spinal cord stimulator must be turned off, which increases the pain levels. Current driving tolerance is 10 to 15 minutes.
103The plaintiff reported that she is constantly fatigued, irritable at times and her memory is poor. She agreed that her pain levels have decreased since she had the spinal cord stimulator inserted, with her pain level on a good day being 6 out of 10 and increasing to 7 to 8 out of 10 on a bad day.
104The plaintiff completed Year 10 at school. Any further education has been inhouse courses offered by the employer. Her computer skills are basic. She has no experience using Microsoft Office products. She has been able to use various internal systems, databases and sales programs. She does not use computers at home but can access and send emails and use the internet. Her employment has always been in hospitality and in the retail industry. She has little experience in sedentary roles. Ms Williams said the plaintiff’s productivity in the workplace is likely to be reduced due to her physical restrictions, pain, fatigue and issues with memory and concentration.
105The defendant has not offered the plaintiff any retraining.
106Based on the evidence, I formed the view that the plaintiff does not have the capacity to pursue alternate employment. No suitable employment has been identified.
107The plaintiff is currently forty-nine years old, having been born in April 1971. Currently, the plaintiff is in receipt of income protection insurance under an insurance policy associated with her superannuation fund. She also receives Centrelink payments for her two daughters. Counsel for the defendant submitted that the plaintiff has no motivation to seek employment. I accept that the plaintiff would like to work within the restrictions imposed upon her. This is what she reported to a number of the medical witnesses and what she told the Court. The plaintiff said that she enjoyed her job and interacting with people.
108I accept that her inability to return to work performing pre-injury hours is a significant loss to this plaintiff. The plaintiff is now forty-nine years of age. Her working life has been largely physical, working on her feet . The plaintiff was proud of her work history. I accept that this injury represents a significant loss to the plaintiff.
109Given the plaintiff’s injury has persisted since 2015 and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent. I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being “more than significant or marked”, and properly described as being “at least very considerable” when judged by comparison with other cases in the range.
110Accordingly, I am satisfied that the plaintiff will continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
111No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
Pain and suffering
112Having found that the plaintiff has satisfied the test for loss of earning capacity, it is not strictly necessary for me to consider the pain and suffering consequences. In fact, counsel for the defendant accepted that her pain and suffering consequences satisfied the test.
113Accordingly, I will grant the plaintiff leave to commence common law proceedings in relation to pain and suffering and economic loss.
114I will hear the parties on costs.
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