McGrath v Seaway Agencies Pty Ltd
[2014] VCC 909
•19 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04016
| ELIZABETH McGRATH | Plaintiff |
| v | |
| SEAWAY AGENCIES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 and 14 May 2014 | |
DATE OF JUDGMENT: | 19 June 2014 | |
CASE MAY BE CITED AS: | McGrath v Seaway Agencies Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 909 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the low back – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Mobilio v Balliotis [1998] 3 VR 833; Dordev v Cowan & Ors [2006] VSCA 254; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
Judgment: Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell | Adviceline Injury Lawyers |
| For the Defendant | Ms M Britbart | Thomson Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 19 April 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 Initially, the plaintiff’s application was brought pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” 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.”
5 On the day of the hearing of the application, the plaintiff abandoned the paragraph (c) aspect.
6 The body function relied upon in this application is injury to the low back.
7 The plaintiff relied upon six affidavits: two sworn by the plaintiff on 18 April 2011 and 2 May 2014; affidavits of her parents, Margaret Joy McGrath, sworn 17 September 2012, and John Laurence McGrath, sworn 3 September 2012; affidavits of former boyfriends, Peter John Quilliam, sworn 3 September 2012, and Matthew Clements, sworn 4 September 2012, and. The plaintiff and Dr Di Carlo were cross-examined.
8 I have not summarised the affidavits and evidence of the plaintiff, the evidence of Dr Di Carlo and the affidavits of the other witnesses. However, I will refer to the relevant evidence of the plaintiff and witnesses in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
9 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section134AB(19)(a) of the Act
10In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant;[2]
[2]Section134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of her impairments to the low back in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[4]Section134AB(38)(b) and (c)
11In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, she has 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;[6]
[6]Section134AB(38)(e)(i) 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;[7] and
[7]Section134AB(38)(e)(ii) of the Act
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[8]
[8]Section 134AB(38)(a) of the Act
12If 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.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
13Consequently, 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.
14As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
[10][2009] VSCA 181
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[11](supra) at paragraph [42]
15The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
16In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[12]
[12]Section 134AB(38)(j) of the Act
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[13]
[13] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
17Counsel for the defendant informed the Court that this is a “range case”, and the credit of the plaintiff is in issue. The defendant disputes the range and consequences the plaintiff has deposed to in her affidavit and the description of the consequences of her injury she has provided to doctors.
Investigations
18On 30 May 2007, a CT scan of the lumbosacral spine concluded:
“Broad based disc bulge at L3/L4 level. More prominent broad based disc bulge demonstrated at L4/L5 level with bilateral foraminal disc bars causing bilateral exit foraminal stenosis and possibly comprising the emerging nerve roots.”
19 On 5 July 2007, a whole body bone scan reported:
“A whole body study was performed. Minor tracer uptake is present in the left side of the mandible in keeping with the patient’s current dental sepsis. The remainder of the study is normal. There is no evidence of any abnormality in the axial skeleton, the lumbar spine in particular is normal.”
20 On 5 May 2008, an MRI scan of the lumbar spine concluded:
“Multilevel degenerative disc disease with a most significant finding at the L5/S1 level where there is a small to moderate sized right paracentral disc protrusion abutting and slightly displacing the budding right L5 nerve root.”
21 On 29 March 2010, a CT scan of the lumbar spine concluded:
“Mild broad based posterior disc bulge at L3/4 and L4/5. Exit foraminal narrowing at the L4/5. Right paracentral disc bulge at L5/S1 intends thecal sac.”
22 On 4 May 2010, an MRI scan of the pelvis concluded:
“1 Right paracentral L5/S1 disc protrusion with S1 neural effacement in the subarticular recess accounting for patient’s symptomatology.
2 Discogenic degenerative change at other lumbar levels as outlined above with no high grade canal nor neuro foraminal compromise despite small right foraminal disc protrusion at the L4/5 level.
3 No compressive lesion on the sacral neural plexus or proximal sciatic nerve.”
23 On 2 June 2010, an MRI scan of the spinal cord reported:
“Straightening of the normal cervical lordosis, otherwise normal spinal alignment.
Vertebral body marrow signal within normal limits.
No abnormal cord signal to suggest demyelination.
C3-4, C4-5 and C5-6 posterior disc osteophyte complexes with C4-5 posterior annular fissure, non-neural compressive.
Comment:
No evidence of demyelination.”
24 An MRI scan of the brain performed on 2 June 2010 was normal.
Treatment
25 The plaintiff’s evidence was that on 20 April 2007, after collapsing at work, as a result of excruciating pain in her lower back, she attended a medical clinic and consulted Dr Duncan Syme, who prescribed medication and recommended that she consult her general practitioner.
26 Between 19 and 23 April 2007, the plaintiff attended Dr Sharon Li at the Mediscreen Clinic in Toorak. She was referred for physiotherapy and commenced treatment with Ms Joanne Wraight, physiotherapist. She received twice-weekly massages from Mr Phillip Power. Both Ms Wraight and Mr Power worked at Recreation Physiotherapy.
27 On 30 May 2007, the plaintiff underwent a CT scan of her thoracic and lumbar spine arranged by Dr Dunithe Jayasinghe, general practitioner.
28 In July 2007, the plaintiff was referred to Dr Bruce Mitchell, pain management specialist, by Ms Wraight.
29 On 2 October 2007, Dr Mitchell performed a bilateral L3, L4 and L5 medial branch block.
30 On 18 October 2007, Dr Mitchell administered a bilateral sacroiliac joint injection, which eased the plaintiff’s pain temporarily.
31 On 20 November 2007, Ms Wraight also referred the plaintiff to Dr Peter Selvaratnam, specialist musculoskeletal physiotherapist. Dr Selvaratnam in turn referred the plaintiff to Ms Dianna Svendsen, physiotherapist and Feldenkrais practitioner, who she consulted on a weekly basis.
32 After consulting Dr Stephen de Graaff, rehabilitation physician at Epworth Rehabilitation, the plaintiff underwent a series of epidural injections performed by Dr Mitchell. On 4 August 2008, a caudal epidural was administered. As this result was short-term positive, a repeat caudal epidural was administered on 10 September 2008. On 10 November 2008, a repeat caudal epidural was administered. A further caudal epidural was administered on 24 December 2008.
33 On 5 May 2008, the plaintiff underwent an MRI scan of her lumbar spine.
34 In early 2009, she was trialled with a small dose of prednisolone.
35 In June 2009, the plaintiff was referred to Dr Graham Griffiths, surgeon, whom she consulted on four occasions and who performed Nesfield procedures (percutaneous neurotomy) on several occasions.
36 In late 2009, the plaintiff underwent lap-band surgery.
37 In December 2009, the plaintiff attended Dr Jack Wodak, neurologist. She was reviewed by him in May and June 2010.
38 On 26 March 2010, as a result of back pain and numbness down her right leg and difficulty in walking, an MRI scan of her lumbar spine was performed.
39 In late 2010, Dr de Graaff, due to the irritation of low back pain, injected triggerpoints at the mid and lateral gluteal muscles on the left, the left L5-S1 erector spinae muscle and right L4-5 erector spinae muscle with local anaesthetic.
40 In July 2011, the plaintiff was reviewed by Dr de Graaff. He said the plaintiff could not cope with a multi-pain disciplinary pain management program as her tolerance was so low that she would be unable to participate in the timeframe necessary.
41 In December 2013, Dr de Graaff recommended trialling physiotherapy directed to core stability, and general strengthening endurance. In March 2014, he reiterated the importance of physiotherapy.
42 Apart from the period of the plaintiff’s pregnancy, she has been taking medication.
43 In March 2014, Dr de Graaff recorded the plaintiff’s medication as:
§ Tramadol SR 150 milligrams bd
§ Pristiq 100 milligrams daily
§ Endep 25 milligrams nocte
§ Valium 5 milligrams bd; and
§ Panadeine Forte, four to six per day.
44 The plaintiff also consulted her general practitioner.
The Plaintiff’s medical reports
Dr Bruce Mitchell
45 In December 2009, Dr Mitchell, pain specialist, confirmed that he treated the plaintiff on referral from the physiotherapist, Ms Wraight. Dr Mitchell reported that the plaintiff had significant back and leg pain (7 to 8 out of 10 on the visual analogue scale for pain), which responded short term to caudal epidurals and had matching pathology found on imaging. He had sought permission to perform selective nerve root injections to determine which of the two discs was involved, so that he could target a more specific treatment at that disc.
Dr M Di Carlo
46 In February 2010, Dr Di Carlo, general practitioner, confirmed the plaintiff suffered disc desiccation of lumbar discs, L3-4-5 and a disc protrusion at L5‑S1 which displaced the right S1 nerve root and which were confirmed on CT and MRI scans. Dr Di Carlo confirmed the plaintiff had undergone three epidural injections with temporary relief for a few days. The plaintiff had consulted Dr de Graaff, rehabilitation physician, Dr Selvaratnam and Dr Griffiths for advice about neuromyotomy injections which provided temporary relief.
47 Dr Di Carlo thought the plaintiff had a poor prognosis; she could not pursue meaningful employment; she had suffered a relationship breakup; her injury is severe and difficult to control, and she has suffered psycho-social consequences which have been equally problematic. It was her view the plaintiff would continue to require medical and physiotherapy support in the long term.
48 In 2013, the plaintiff became pregnant. The elevated female hormones during her pregnancy led to an easing of her back pain, which is often seen in pregnancy as a result of the ligament laxity pregnancy induces. By October 2013, she had resumed the same levels of pre-pregnancy back pain.
49 In April 2014, Dr Di Carlo confirmed the plaintiff underwent a lap-banding procedure which helped her reduce her weight.
50 Dr Di Carlo said the plaintiff had suffered a serious back injury which failed to respond to both conservative and interventional procedures. She takes medication daily of Tramadol, Endep, valium and Pristiq. She said the plaintiff’s prognosis is poor, she will always live with some level of back and leg pain. She said she will require lifelong medication. She did not believe she could return to any form of employment because of her limited standing and sitting tolerances. She said the plaintiff spends time pacing to ease her back discomfort, and struggles to do everyday chores at home.
51 In cross-examination, Dr Di Carlo agreed that physiotherapy would assist the plaintiff, but not to a great degree. She was not surprised to hear the plaintiff sat in the witness box for almost a day without the need to stand. Dr Di Carlo said the plaintiff has “good days” when that was possible. She said that before the plaintiff’s pregnancy, she did not believe the plaintiff could return to work. She thought the plaintiff could undertake a rehabilitation program. She thought that some of the plaintiff’s medication would interfere with her ability to concentrate. She did not think the plaintiff could attend work consistently.
Ms Dianna Svendsen
52 In January and May 2010, Ms Svendson, physiotherapist, provided reports confirming that she had treated the plaintiff since November 2007 for specialised Feldenkrais physiotherapy and pain and stress management, including the use of biofeedback (BFB). Ms Svendson treated the plaintiff on average once a week. It was her opinion that the plaintiff was not fit for work.
Dr Peter Selvaratnam
53 Dr Selvaratnam, specialist musculoskeletal physiotherapist, provided reports dated 30 December 2009, and 29 March and 20 April 2010. He diagnosed a three-level disc involvement at the L3-L4, L4-L5, flattening the thecal sac (confirmed on lumbar CT scan) and a L5-S1 disc protrusion compressing the right S1 nerve root (confirmed on MRI scan). It was his opinion the injury was consistent with the plaintiff’s history of the stated cause of a lifting trauma which caused neural sensitisation and hypertonicity of the lumbar erector spinae muscle, leading to central nervous system sensitisation and ongoing pain. He said the plaintiff was unable to work, which was likely to continue indefinitely.
Dr Jack Wodak
54 In December 2009 and May 2010, Dr Wodak, neurologist, examined the plaintiff on referral from her general practitioner. On examination in December 2009, he found abnormalities on the left side which were not explained by her 2008 MRI scan. A further MRI scan was performed on 4 May 2010 which revealed findings similar to the 2008 examination and showed a right L4-S1 disc protrusion which was effacing the right S1 nerve root. On examination in May 2010, the plaintiff complained of severe pain in her right leg and a feeling of numbness in the right foot and in the distal part of her right leg. Her right ankle jerk was absent. There was numbness over the whole of the right side of her body up to her neck.
55 He said the plaintiff’s pain had largely settled when he saw her in May 2010. Her only continuing complaint was one of numbness. The sensory abnormalities he found were not due to an S1 nerve lesion, nor any other organic disturbances. An MRI scan of the brain and spinal cord did not identify a central nervous system abnormality to account for the sensory changes. He had not seen the plaintiff since June 2010.
Dr Sharon Li
56 In December 2010, Dr Li, general practitioner, confirmed that the plaintiff had been a patient of the clinic since 1998. In May 2007, the plaintiff presented with thoracic and lumbar back pain. In June 2007, the plaintiff reported continued improvement of her pain with physiotherapy. She requested a referral to Dr David de la Harpe, orthopaedic surgeon, in June 2007.
57 In October 2007, the plaintiff reported having diagnostic nerve blocks. Her pain was ongoing, but overall improved. She sought a referral to pain management specialist, Dr Stephen de Graaff, in January 2008 and a referral to a myotherapist for back treatment in March 2008. She was last seen in April 2008 when she reported that her back pain was stable but not settled. She was under the care of a pain management centre and was continuing physiotherapy. Repeat prescriptions of Panadeine Forte were given.
Dr Stephen de Graaff
58 Dr de Graaff, pain management specialist, provided reports dated June 2012, December 2013 and March 2014. He said the plaintiff presented with lumbar injury related to work activities in April 2007. Investigations revealed she had multiple levels of degenerative lumbar disease with a right L5-S1 disc protrusion and some irritation of the right S1 nerve root. He said the plaintiff was significantly disabled since the time of her injury. She had tried conservative management with expert physiotherapists and undergone a number of interventions with limited response. She was on analgesics and neuromodulators, as well as antidepressants. He said she was totally and permanently incapacitated. She was not fit for her previous work duties and is not suitable for any other work duties. He did not believe she could perform administrative type roles because her tolerances were so low. He said she was unemployable. In December 2013, he recommended the plaintiff undertake more physiotherapy to look at core stability work and general strengthening and endurance.
59 In March 2014, after examining the plaintiff, Dr de Graaff confirmed the plaintiff had low-back mechanical pain and some neuropathic pain, particularly of the right lower limb, with associated numbness of the right foot and toes. He once again recommended physiotherapy to assist her core stability and general strength and endurance.
Mr Kevin F King
60 In April 2014, Mr King, orthopaedic surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported constant pain in the low-back region, radiating into both buttocks, always present, fluctuating in intensity, always of at least moderate severity (4 to 5 on a scale of 10) and for a significant part of each week, the pain increases to the severe level of about 7 to 8. The pain in the back is aggravated by walking, standing, fatigue, and by any attempt at bending.
61 The plaintiff also complained of residual right-sided sciatica of a mild ache in the right buttock, thigh and calf, which can become severe two or three days a week and lasts for three hours or more. She is aware of numbness over the outer border of the right foot and beneath the foot.
62 Mr King said there had been general agreement by those treating the plaintiff that she had neurological signs in the right lower limb consistent with an L5-S1 nerve root lesion, and her major problem was back pain rather than sciatica.
63 Mr King said, based on the later MRI scans, it is more probable than not the trauma was superimposed upon pre-existing but completely symptomless degenerative changes. The plaintiff was disabled from returning to work and if her backache continues at its present level, it is more likely that she will eventually be referred to surgery. Because three lumbar discs were involved at the lower level, she would be a very poor surgical risk in terms of expecting a good outcome.
64 Mr King said the plaintiff was unfit to return to any work. He thought her prognosis was poor; the disability is severe enough to allow the possibility that a spinal surgeon will recommend major spinal surgery to her in the future. He said there was no evidence of any sort of psychological overlay of any significance and no element of exaggeration that he could detect.
Mr Michael J Shannon
65 In April 2009, Mr Shannon, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s insurer. The plaintiff reported ongoing pain in the low back, radiating to both buttocks, but not into the lower limbs. She had pain extending into the upper back. She had attended Feldenkrais Physiotherapy and was taking Panadeine Forte of up to eight a day for pain, and the antidepressant, valium.
66 Mr Shannon disagreed with Dr Mitchell and said the MRI scan showed no significant disc bulge. He said that the disc bulges were not causing symptoms of nerve root irritation and it was pointless to suggest transforaminal nerve root injections, particularly when a series of five caudal epidural injections had made no difference. He said the plaintiff had a significant ongoing problem. He said she was suffering from the mechanical back pain associated with multilevel lumbar disc degeneration, aggravated and accelerated by her employment. She had pre-existing degenerative change. He said she did not have a capacity to perform significant physical work. He thought she probably had a capacity for part-time office work but accepted she would have difficulty with prolonged sitting and any work involving bending or lifting.
Mr Gerald Moran
67 In September 2009, Mr Moran, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s insurer. In July 2010, he was provided with further medical reports and a further written report.
68 Mr Moran said the plaintiff reported constant low-back pain, and her back movements were restricted. He accepted the disc degeneration at L3-4, L4-5 and L5-S1 existed prior to April 2007. He said her condition was an aggravation of the disc degeneration. He thought the plaintiff was fit for suitable work but accepted she was not fit for unrestricted pre-injury work.
69 Mr Moran thought suitable light duty work should commence on a part-time basis. He noted that the employment options as set out in the vocational assessment report of 19 March 2008 are unlikely to be available on a part-time basis.
70 In July 2010, Mr Moran said, if the plaintiff’s medical condition was the same as it was when he saw her in September 2009, based on additional reports, he thought she would be fit for part-time, light-duty work with the restrictions set out in his previous report. However, he had a reservation due to the medication the plaintiff was taking; namely Tramadol.
Mr Robin Williams
71 In February 2011, Mr Williams, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. The plaintiff complained of severe low-back pain which affects every aspect of her life. The medication she takes also affects every aspect of her life.
72 It was Mr Williams’ opinion that the plaintiff probably developed a lumbosacral intervertebral disc prolapse as a result of the activities she performed at work in April 2007. He said she presents with a rather unusual pattern of back pain symptoms. She did not develop right-sided sciatica until some time later. He did not consider the symptom pattern she presented was typical of right-sided radiculopathy, but said she had signs consistent with that condition and supporting imaging.
Associate Professor Owen White
73 In July 2011, Associate Professor Owen White, neurologist, examined the plaintiff at the request of the defendant’s solicitor. It was his view the MRI scan performed in 2010 demonstrated posterior and annular tears at L3-4 and L4-5 with minor posterior disc bulging and slight loss of disc height. At L5-S1, there is a significant right-sided posterior disc prolapse impinging on the S1 nerve root and displacing it. He said surgery at L5-S1 may well diminish her sciatic symptoms, but would probably not help her local back pain. He said the plaintiff did not appear to have responded substantially to pain management or rehabilitation. He thought the likelihood of there being significant improvement was relatively small. He thought she should be reviewed by a surgeon. It was his view that her activities on the day prior to the onset of the severe pain had contributed to the development of the disc pathology at three levels.
74 The incident at work would appear to have been a single event in terms of producing deterioration of her back. He accepted that her pain interferes with the performance of all normal daily activities, including housework, and prevents her from working. He accepted that if there was no treatment offered by a spinal surgeon, he would have to consider there was little likelihood of her being able to return to normal activity. He accepted that the plaintiff did not have a capacity for pre-injury employment or any current work. He was reluctant to say whether she was permanently incapacitated but accepted that if no treatment can be offered, her state is permanently impaired.
The Defendant’s medical evidence
Dr Andrew Miller
75 Dr Miller, occupational health consultant, medically examined the plaintiff in October 2007 and June 2008. He noted that her response to treatment had been disappointing and that she had been unable to return to any form of work. It was his view that the plaintiff was currently capable of work with restrictions of:
·avoiding lifting in excess of 5 kilograms
·avoiding movements of her back beyond a comfortable range
·avoiding forceful pushing or pulling activities
·avoiding prolonged static postures such as sitting or standing in the same position for more than 30 minutes at a time.
76 Dr Miller read a copy of the vocational assessment report (13 March 2008) and believed that the following occupations may be able to incorporate the above recommended restrictions:
·executive assistant
·events coordinator
·project officer
·training coordinator
·office administrator.
Dr Ian Jackson
77 Dr Jackson, psychiatrist, medically examined the plaintiff at the request of the defendant’s insurer in August 2010 and November 2012. He obtained a history that the plaintiff had suffered “mild depression” from a year or two prior to April 2007 related to returning from living and working overseas and in the context of a relationship breakup. The plaintiff said she had depressive symptoms but “ignored it”. She was reluctant to approach general practitioners for psychiatric help. She consulted a psychologist with no benefit over six sessions and consulted a psychiatrist, Dr Roman, who was of some assistance, and prescribed antidepressant medication.
78 Prior to April 2007, the plaintiff described, at most, slight depressive symptoms while taking antidepressant medication. Subsequent to April 2007, her depression was markedly greater in severity and had a very different quality. She reported that her appetite had “gone through the roof” with a 40 to 45-kilogram weight gain. She undertook lap-band surgery in December 2009 with a good weight loss.
79 In 2010, the plaintiff reported major change in her day-to-day activity with marked restrictions and a massive change to minimal socialisation. Dr Jackson said there were some pre-existing depressive symptoms but the plaintiff was very plausible when she described a marked change in her overall functioning with depressive symptoms from, and associated with, the work injury in October 2007.
80 In November 2012, Dr Jackson was of the view the plaintiff was suffering a Major Depressive Disorder of moderate severity.
Dr Richard Prytula
81 In February 2011, Dr Prytula, psychiatrist, examined the plaintiff at the request of the defendant’s insurer. The plaintiff complained of increased weight and reported feeling flat and unhappy and appeared depressed. She reported being tearful daily and has suicidal thoughts and said that it “seems like an option not to be here anymore”. She provided a history that she lived overseas, found readjustment difficult on returning to Australia, and consulted a psychologist in 2005 on six occasions. She commenced taking the antidepressant, Zoloft, which continued until the injury. He diagnosed Major Depression and said the plaintiff suffered reduced memory and concentration with sleep disturbance and depressed mood with suicidal thought and ruminations.
Mr Peter Kudelka
82 In April 2013, Mr Kudelka, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. It was his opinion the plaintiff’s symptoms were due to an aggravation of pre-existing degenerative changes in the lumbosacral spine with irritative right-sided sciatica. He did not think the plaintiff had a current capacity for pre-injury duties, but thought the situation was not likely to continue indefinitely, and suggested a review after the birth of her child. He said the plaintiff’s incapacity was predominantly due to her back condition but that her pregnancy was a factor in attempting alternate employment.
83 Mr Kudelka expressed the view that he anticipated that her symptoms of back pain and right sciatica would lessen after her baby was delivered.
Mr Gerard Powell
84 In March 2014, Mr Powell, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. Mr Powell said there were a number of disturbing features about the plaintiff’s presentation. He said the diagnosis was consistent with an acute disc prolapse of the L5-S1 disc with right-sided sciatica. It was usual for resolution of symptoms in the order of six to nine months, but the plaintiff had not attempted to return to work for seven years. He described the plaintiff as a vague historian and obstructive in providing a history. He said:
“She exhibited a poor understanding of her condition and would appear to have an attitude that devolves responsibility for her condition to others, whilst not accepting any responsibility for managing her condition also.”
85 Mr Powell commented that the plaintiff did not mention any current psychiatric treatment. He thought this significant, given her incapacity for work has previously been recorded as due to her psychiatric condition, and not to her physical low-back pain. It was his view that the plaintiff was fit for full-time work in light duties; that is, work that does not involve repetitive bending and/or any heavy lifting, and work which has the flexibility to stand or sit as pain dictates.
86 Mr Powell said the plaintiff had a Chronic Pain Syndrome with abnormal illness behaviour. The findings are in keeping with the previous disc prolapse at the L4-5 and L5-S1 levels, with ongoing irritation of the right L5 nerve root. He thought her current condition of Chronic Pain Syndrome was well in excess of what one would expect from a mild disc prolapse seven years since the injury. He thought she would benefit from arranging an occupation rehabilitation support to assist with a return to work plan.
87 Mr Powell said the plaintiff’s prognosis was guarded. She had been out of work for a long time, lacked motivation to take control of the situation, has become dependent on welfare and abrogates responsibility for her symptoms to others. He said she had a poor understanding of what is required from her to get back to the workforce. He said the fact that she was able to purchase a house and have a daughter indicated a level of daily functioning that would allow her to participate in the workforce.
Dr Paul Kornan
88 In March 2014, Dr Paul Kornan, psychiatrist, medically examined the plaintiff at the request of the defendant’s solicitor. The plaintiff provided a history of excellent health prior to her injury, having developed some mild depression, as she had lived overseas and there was a relationship breakdown. She returned in February 2004 and was provided with sedative medication which she described as “very, very mild”.
89 The plaintiff reported experiencing constant back pain. She felt the stress had changed her life completely. She felt she had developed depression as she felt constantly miserable and could not see any good in life. She did not see anyone and did not want to go anywhere. She worried about her future constantly.
90 Dr Kornan said there was a background of ongoing longstanding psychiatric difficulties and, in his opinion, they would exist anyway had there been no physical injury.
Vocational reports
91 In March 2010, Mr Greg Bishop, rehabilitation consultant, identified suitable employment options, in order or priority:
·enquiry/customer service/information clerk
·market research interviewer
·tourist information officer.
92 Mr Bishop said that, based on the plaintiff’s self-reporting of her physical tolerance and symptoms, she had no capacity for work. However, there was support from Mr Moran and Mr Powell that the plaintiff did have a work capacity with restrictions; namely avoiding manual handling and being able to alternate posture on a regular basis.
93 Mr Bishop noted that the plaintiff’s reduced concentration and memory and fatigue would limit occupations where she is able to perform certain tasks. She is unlikely to work as an executive assistant, administrator or at a coordinator level. He thought that customer service type occupations would be suitable in the first instance and once she obtained confidence, her hours could be increased.
94 In April 2014, AMS performed, at the request of the defendant’s insurer, an updated labour market review on the job options identified in the vocational assessment report dated 3 March 2010. The labour market review employment options in order of priority were:
·enquiry-customer service-information clerk
·market research interviewer
·tourist information officer.
Credit of the Plaintiff
95 The plaintiff is aged forty. She was very composed throughout her cross-examination and was very definite in the answers she gave. She did not answer questions directly and, in that sense, she did not assist her case. On occasions she accepted the accuracy of a statement made by a doctor in a report; she would then qualify that statement. At other times she answered a question in cross-examination, and when her answer was relied upon by counsel, she disputed the answer she had given or qualified it. This happened on a number of occasions. At times her answers to questions in cross-examination were inconsistent with the impression created in her affidavits.
96 Counsel for the defendant submitted the plaintiff was an unreliable witness and that I cannot reliably accept what the plaintiff says regarding her symptoms and impairment in her affidavit and viva voce evidence, and what she told medical witnesses. Despite the fact that the plaintiff abandoned her application for a serious injury certificate under paragraph (c) of the definition, a number of psychiatric and psychological reports were included because they related to submissions the defendant wished to make about the plaintiff’s credit. Counsel submitted the plaintiff exaggerated contrasts between the person she was before her back injury and the person that she has been since.
97 The 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.[14]
[14]For example Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners (supra) at paragraph [46]; Dordev v Cowan & Ors [2006] VSCA 254 at paragraphs [14]-[19]
98 A 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”.[15]
[15]Dordev v Cowan & Ors (supra)
99 In Franklin v Ubaldi Foods Pty Ltd,[16] Ashley JA said:
“… two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Second, in the present case it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.”
[16][2005] VSCA 317
100 The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by the plaintiff should be disregarded.
101 In Cakir v Arnott’s Biscuits Pty Ltd,[17] 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.
[17][2007] VSCA 104 at paragraphs [49]-[58]
102 Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[18]
[18]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
103 I concluded that the submissions of the defendant relating to the plaintiff’s credit fell into two main categories:
· the plaintiff exaggerated her position to the doctors she saw and to the Court; and
· the plaintiff failed to detail her prior history. If she was specifically asked about her prior history, in most instances she minimised that history.
104 I shall now address the issues raised by the defendant.
105 In her first affidavit sworn on 18 April 2011 (“the first affidavit”) at paragraph 28, the plaintiff provided a history of returning from overseas, having difficulty adjusting and feeling unhappy, and receiving treatment from a psychologist and psychiatrist who prescribed antidepressant medication.
106 The plaintiff also reported this history to Dr Prytula, who examined her for the defendant.
107 Dr Kornan, who also examined her for the defendant, recorded that before the work injury –
“… she felt her health was excellent but she developed some mild depression as she lived overseas in Bahrain for four years and there was a relationship breakdown. She came back to Australia in February 2004, was put on some sedative medication which she described as very, very mild.”
108 The plaintiff reported that the depression she suffered after her injury was very different in quality to that which she suffered prior to the work injury.
109 The plaintiff was specifically cross-examined about her mental health issues in the period prior to the accident at work. I accept that much of the plaintiff’s past psychiatric history only became apparent when the plaintiff was cross-examined in respect to the medical records of Dr Roman and Ms Cheree Dalton. The evidence was that the plaintiff suffered significant depressive symptoms prior to the work injury, whilst maintaining employment.
110 I accept that the plaintiff did not disclose the extent of her pre-injury depression to the psychiatrists whom she saw for the purpose of this proceeding. She did not tell Dr Jackson, who examined her for the defendant, about her past psychiatric condition of feeling suicidal, her tearfulness, lethargy, requiring lots of sleep, and difficulties with concentration.
111 At paragraph 31, the plaintiff deposed to avoiding her extended family and friends since the work injury. She stated in her affidavit that she used to be “bubbly and outgoing”, and she was known as “the life of the party”. When cross-examined, the plaintiff qualified this statement and said that it described her nature when she lived overseas, not immediately before the work injury. I accept that her affidavit misrepresented the plaintiff immediately prior to her injury.
112 In paragraph 33, the plaintiff deposed that she cries nearly every day. Of the current complaints that she reported to Dr Prytula, the plaintiff said that she –
“… feels flat and unhappy and appears depressed. She is tearful daily and has suicidal thoughts and said that it seemed like an option not to be here anymore.”
113 The plaintiff was asked in cross-examination whether generally in her life she was often tearful. She responded “I don’t cry very often”.[19]
[19]T46, L6
114 Counsel for the defendant raised with the plaintiff comments about her tearfulness prior to the work injury, as recorded by Dr Freidman, her general practitioner, Ms Cherie Dalton, treating psychologist, and Dr Roman, treating psychiatrist.
115 Dr Freidman recorded that the plaintiff started crying as soon as she started to discuss the problem.
116 Ms Dalton, in a report of 2 March 2006,[20] recorded:
“Ms McGrath described difficulty adjusting to being back in Australia, reporting frequent periods of social withdrawal, low energy, tearfulness, comfort eating, weight gain and hypersomnia.”
[20]DCB 147
117 The plaintiff was asked whether the symptoms recorded by Ms Dalton were correct. She agreed there had been ongoing problems, and said:
“Tearfulness, I find that interesting because I know I don’t really cry very much, but if I was talking to a professional about how I felt, I possibly would cry.”[21]
[21]T48, L11
118 It was put to the plaintiff that Dr Roman recorded “tearful much of the time”.[22] The plaintiff answered:
“Now that would have been in private not in public.”
[22]T57, L21
119 Counsel’s submission was the plaintiff provided three variations of what she meant by tearfulness:
(i) “I don’t cry very much”
(ii) “Only when I talk to a professional”
(iii) “Just in private, not in public.”
120 Counsel for the defendant submitted it was a theme throughout the plaintiff’s evidence that her story changed depending on the level of challenge.
121 I accept that the plaintiff was on occasions inconsistent in her evidence.
122 Counsel for the defendant submitted that the plaintiff gave exaggerated evidence in paragraph 36 of her first affidavit as to the consequences of her injury upon her exercise regime. The plaintiff deposed that prior to the work injury, she went to the gymnasium a couple of times a week, she walked and jogged regularly. In cross-examination, the plaintiff said there were times when she exercised a lot, and then periods when she would not exercise.[23] She said that attending the gym multiple times a week was sporadic.[24] There were periods of weeks or months when she was consistently low and did not do any exercise.[25]
[23]T81, L3
[24]T82, L7
[25]T82, L13
123 In 2006, Dr Roman, recorded that she was not going to the gymnasium because of lack of money and was “strolling to the tram stop”. The plaintiff was unable to recall if she was going to the gymnasium when she was being treated by Dr Roman.
124 In early 2007, the plaintiff said she was definitely walking and going to the gymnasium, as well as jogging.
125 I accept that prior to the work injury, the plaintiff exercised intermittently. I accept that the plaintiff exaggerated the level of exercise she performed.
126 At paragraph 37 of her first affidavit, in discussing the consequences of her physical injury, the plaintiff deposed that in the past she enjoyed sailing, badminton, hiking, horse riding, swimming and cycling, but not often, mostly when she was on holidays. Dr Miller, Mr Shannon and Professor Owen White recorded that the plaintiff was very involved in such activities, using descriptors like “active”, “a very active person, playing sport”, and “extremely fit and active”. I accept that some of the doctors received an exaggerated history of the plaintiff’s sporting activities.
127 The plaintiff’s evidence was that as a result of her work injury, she gained significant weight – 45 kilograms – and as a result, in December 2009, had lap-band surgery to try and lose weight. Counsel for the defendant submitted that there was no reference by the plaintiff in her affidavit material to any problems she had with her weight prior to the injury. The plaintiff agreed that she had always been aware of her weight and that it fluctuated.
128 In September 2006, Dr Roman’s notes record the plaintiff weighed 95 kilograms, and that she was crying about her fluctuating weight.
129 The plaintiff’s evidence was that at the time of her work injury, her weight was in the range of 80 to 90 kilograms. She reached 133 kilograms before surgery, but at the time of surgeries, she was approximately 120 kilograms. The plaintiff reported a history of fluctuating weight and comfort eating to those doctors she saw in relation to lap-band surgery.[26] However, in relation to doctors she saw for the purpose of the application, she reported an increase in weight since April 2007 without reference to her history and fluctuating weight.[27]
[26]DCB 151 and 153
[27]PCB 19; Dr Simon Woods; Mr Gary Crosthwaite; Mr Moran DCB 29; Dr Jackson DCB 43; Dr Prytula
130 The plaintiff’s evidence was that, but for her back injury, she would not have put on extra weight and would not have had lap-band surgery.[28] I accept that the plaintiff’s weight fluctuated in the past, and had been an issue prior to her back injury, but became a greater issue after the work injury. I accept by not referring to her weight prior to the injury, the plaintiff exaggerated this consequence of her injury.
[28]T187, L10
131 In considering the credit of the plaintiff, I must consider the evidence as a whole.
132 The cross-examination as to the plaintiff’s credibility largely stemmed from the material in the psychological and psychiatric reports. I have considered the material put forward by the defendant in this respect. I am, however, mindful that the plaintiff abandoned her application under paragraph (c), and that otherwise, all medical witnesses agreed on the organic injury. The plaintiff has an organic injury which is consistent with the radiology, and which is accepted by the medical witnesses. She received several caudal epidural injections, and Nesfield procedures. I accept that the plaintiff has been prescribed, and is consuming, significant medication. I also take into account the fact that the plaintiff, whilst pregnant, noticed a significant reduction in the level of her pain which she consistently reported to medical witnesses, which reflects well on her credit.
133 Also, I must look carefully at the objective evidence.
134 The plaintiff relied upon affidavits sworn by her parents in 2012. Those affidavits do not refer to the plaintiff’s psychiatric problems prior to her injury. The affidavits were prepared when the case was still being brought on the basis of a psychiatric injury. Both affidavits attribute the plaintiff’s problems with socialising, weight and memory to her back injury. Counsel for the defendant submitted that the affidavits were not balanced and that I should not have regard to those affidavits. I place little weight on the affidavits of the plaintiff’s mother and father as they were not current.
135 I was informed that counsel for the defendant served notice on the mother and father, requiring their attendance for cross-examination. I adopt what the Court of Appeal said in Ifka v Shahin Enterprises Pty Ltd:[29]
“While the plaintiff’s husband could have been cross-examined as to the inadequacies and inaccuracies in his affidavit in the same way the appellant was successfully cross-examined, in our view, little was likely to have been achieved. The respondent had already successfully challenged the version set forth in the appellant’s affidavits. Accordingly, in the context of this case, it was unnecessary to put the same material to the appellant’s husband in cross-examination. His Honour’s approach (which we have already set out above) was, with respect, correct.”
[29][2014] VSCA 8 at paragraph [47]
136 Accordingly, I accept it was unnecessary to put the same material to the mother and father in cross-examination.
137 The affidavits of the other witnesses are of limited value as they were sworn in September 2012. They do not relate to the plaintiff’s current position. However, Mr Quilliam’s affidavit, which was unchallenged, is relevant in relation to the activities he engaged in with the plaintiff, and her personality prior to her injury.
138 Overall, I accept the plaintiff was prone to exaggeration which I take into account in assessing the evidence as a whole.
Analysis of the evidence
139 It was accepted by the defendant that the plaintiff suffered a work-related injury in April 2007, being an aggravation of degenerative changes in her low back involving some or all of the L3-4, L4-5 and L5-S1 discs.[30]
[30]T200, L23-27
140 The majority of doctors accepted that the current diagnosis was an L5-S1 prolapse or protrusion, displacing the right S1 nerve root, together with the diagnosis of an aggravation of disc degeneration of either two or three lumbar levels. This is confirmed by the most recent CT scan of March 2010.
141 Associate Professor Owen White said the radiology investigation demonstrated “significant pathology at L3/4, and L4/5”.
142 As to those doctors who referred to an aggravation of the disc degeneration (namely Mr Shannon, Mr Moran, Mr Kudelka and Dr de Graaff), the evidence was that prior to the work injury, the plaintiff had not complained or been treated for low-back pain, apart from an incident in the 1990s when she fell off a horse and had transient bruising. It was not in dispute that the plaintiff was in employment and capable of full-time work prior to the work injury. Accordingly, I accept that prior to the work injury the plaintiff was symptom free.
143 Most of the doctors who examined the plaintiff formed the view that the low-back condition was one of ongoing pain which in the initial period was variously described as “severe”[31] and “constant”.[32] By 2014, Mr King said:
“She has been chronically and severely disabled by this back pain.”
[31]Mr Williams
[32]Mr Moran
144 Mr Shannon said the plaintiff had a “significant ongoing problem” involving a three-level disc degeneration. Any attempt to relieve her symptoms by surgery would be unlikely to be successful, due to the involvement of three levels of the lumbar spine. This view was shared by Mr Powell and Mr King.
145 In July 2011, Associate Professor Owen White said surgery at the L5-S1 may diminish her sciatic symptoms, but would probably not help her low-back pain. Mr Kudelka said surgery was not indicated. Mr Williams said the plaintiff had signs consistent with right-sided radiculopathy which was supported by imaging.
146 The plaintiff had been in employment since the age of twenty-one. She lived overseas from April 2000 until February 2004 in Bahrain, working as a flight attendant. She was employed by Crown Ltd for approximately twelve months. She was employed by the Paragon Group as an executive assistant for approximately eighteen months, before obtaining employment with the defendant in October 2006. Since her injury at work in April 2007, the plaintiff has not returned to employment.
147 In determining the plaintiff’s impairment, I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the current medical evidence of the plaintiff’s treaters, Dr Di Carlo and Dr de Graaff, rehabilitation specialist, and the medico-legal doctors, Mr King, Mr Kudelka and Mr Powell. The majority view was that the plaintiff had no work capacity.
148 Dr Di Carlo said the plaintiff could not return to work because of her limited standing and sitting tolerances. In cross-examination, she was informed that the plaintiff sat in court for the best part of the day without the need to stand. Dr Di Carlo said that would not surprise her as the plaintiff has good and bad days. She thought the plaintiff’s medication would interfere with her ability to concentrate and that she would not be able to attend work consistently. She said there were days when she cannot function well enough to do that. She would not recommend her for part-time employment because she would call in sick, placing pressure on other employees. Further, the medication she takes, in particular Tramadol, makes one drowsy and affects one’s concentration. Added to that, the combination of Panadeine Forte and Endep can result in a hangover effect. Dr Di Carlo’s view was that the medication would prevent her performing with the attention that is required and she would make mistakes. She did not see the plaintiff’s medication altering into the foreseeable future.
149 In June 2012, Dr de Graaffe said the plaintiff was unemployable. He did not believe she could perform administrative-type roles because her tolerances were so low.
150 In December 2013 and March 2014, he thought there had been little change and he recommended physiotherapy to assist with her core stability.
151 In March 2014, Mr King said the plaintiff was unfit to return to any form of work.
152 Mr Kudelka examined the plaintiff when she was pregnant and suggested she be re-examined after her pregnancy to determine her ability to return to work. This was not done. He expressed the view that she had no current capacity for pre-injury duties, but that the situation was not likely to continue indefinitely. He said her continuing incapacity was predominately due to her back condition, but her pregnancy was a factor in attempting alternative employment.
153 Mr Powell, orthopaedic surgeon, was in the minority. He diagnosed acute disc prolapse at L5-S1 with right-sided sciatica. He said, and was the only doctor to say this, that the timeframe for resolution of the plaintiff’s symptoms would be in the order of six to nine months. He thought the plaintiff would benefit from occupational rehabilitation support to assist with a return to work plan. He accepted she was not fit for pre-injury duties but said she was fit for duties as identified by Mr Greg Bishop’s occupational report of 2010.
154 A number of comments can be made about Mr Powell’s report:
(i) First, he was not provided with any radiological investigations;
(ii) Second, he was not given the previous opinions of Mr Shannon, Mr Moran, Mr Williams or Associate Professor White, who were engaged by the defendant’s representatives;
(iii) Furthermore, he assumed that the plaintiff’s prior incapacity for work was attributed solely to a psychiatric condition rather than her low-back injury. I was informed that it was accepted that the plaintiff’s incapacity for work was for the low-back condition, albeit with some psychological sequelae, from day one.[33]
[33]T264
155 Mr Powell refers to the recommendations of Mr Moran in his report of September 2009, that the plaintiff is not fit for unrestricted pre-injury employment as an executive assistant, but that she would be capable for work which employs light duties. Mr Powell was not provided with Mr Moran’s report, he was only provided with Mr Bishop’s report, which included selective quotes from Mr Moran. I accept that Mr Powell relied upon what Mr Bishop reported Mr Moran as saying. However, Mr Moran was unaware of the strength of the Tramadol tablets the plaintiff was taking in March 2010. He said if the strength of the Tramadol is 50 milligrams, then the plaintiff would be able to undertake part-time light duty work with the restrictions imposed by Mr Bishop. However, the strength of the Tramadol the plaintiff is taking is 300 milligrams of Tramadol per day. Furthermore, Mr Powell ignored the plaintiff’s history that she was involved in moving archive boxes and a small desktop safe at work. On the day of performing those duties, she developed some minor pain in her back. The following day, she experienced agonising lower back pain, radiating down her right lower leg.
156 The plaintiff’s evidence is that she would like to return to work, that she had always been in employment.
157 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[34]
[34]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra)
158 Given the medical evidence, I am satisfied that the plaintiff cannot return to work. The plaintiff is aged forty years. She has been out of the workforce for seven years. The plaintiff told the Court that she would like to work. I accept that her inability to return to work represents a significant loss to this plaintiff, particularly given her age. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
159 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments.[35] No 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.
[35]Stijepic v One Force Group Aust Pty Ltd & Anor (supra) at paragraph [44]
160 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
161 Given the medical evidence of Dr Di Carlo, Dr de Graaff and Mr King that the plaintiff has no capacity for work currently or into the foreseeable future as a result of her low-back injury, I find the plaintiff is effectively out of the workforce for any employment as a result of the low-back injury. Accordingly, there is no need to go into an analysis of wage rates, as I do not accept that she has any residual capacity, given the medical evidence.
162 There was a rehabilitation report of 2010 from Mr Greg Bishop of NES Vocational Assessment. An updated labour market review was performed in April 2014, but the plaintiff was not consulted. She has not been put through any other vocational assessment, nor has she been offered any rehabilitation. Mr Powell was the only doctor to suggest that the plaintiff would benefit from rehabilitation.
163 Given the plaintiff’s level of medication and level of pain, which is supported by her treating doctors, I accept she does not have the capacity to return to work or participate in any form of treatment or rehabilitation that will return her to any meaningful work in the foreseeable future.
164 I accept that the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
165 In view of the matters I have described, the plaintiff has discharged the onus with respect to her low-back injury regarding her loss of earning capacity.
166 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
167 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of her employment with the defendant.
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