Mert v Lawrence (Vic) Pty Ltd
[2014] VCC 2115
•15 December 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-13-00584
| EREN MERT | Plaintiff |
| v | |
| LAWRENCE (VIC) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 December 2014 | |
DATE OF JUDGMENT: | 15 December 2014 | |
CASE MAY BE CITED AS: | Mert v Lawrence (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2115 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the lumbar spine – psychiatric impairment – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Capperv Munday Sales Pty Ltd and Anor [2013] VCC 1015; Jarvis v Woolworths Limited [2012] VCC 1329; Gauci v Winmart Pty Ltd [2012] VCC 53; State of New South Wales v Moss (2000) 54 NSWLR 536
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore with Mr J Valiotis | Zaparas Lawyers |
| For the Defendant | Mr D Oldfield | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on or about 30 March 2009 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity, pain and suffering having been conceded in closing addresses.[1]
[1]Transcript (“T”) 67
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the lumbar spine.
5 The plaintiff also brought a separate application pursuant to clause (c) for a severe mental impairment. The relevant psychiatric condition was not one of a Chronic Pain Syndrome, as it was submitted the essential focus of the application was the organic injury.[2]
[2]T2, T99
6 The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] that they were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive; namely, that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[3][1998] 3 VR 833
[4](1995) 21 MVR 314
7 Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[5]Supra
8 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] and Grech v Orica Australia Pty Ltd & Anor[7] in reaching my conclusions.
[6](2005) 14 VR 622
[7](2006) 14 VR 602
12 The plaintiff relied upon three affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13 Causation, compensable injury and pain and suffering having been conceded, the issue is whether the plaintiff has the requisite loss of earning capacity, being a worker under twenty-six at the date of injury.
14 In these circumstances, the plaintiff, pursuant to s134AB(38)(e)(i) of the Act, must establish that, at the date of the hearing, she has a loss of earning capacity of 40 per cent or more. Further, she must establish, pursuant to ss(e)(ii) of the Act, that she will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
15 Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
The Plaintiff’s affidavit evidence
16 The plaintiff is presently aged twenty-five, having been born in June 1989.
17 The plaintiff completed Year 12 and then did one year of a two-year Certificate IV in Tourism. After an overseas trip, she looked for work. During and after her TAFE course, the plaintiff worked casually for about three months at a travel agency as an administrative trainee, answering the telephones, photocopying and booking flights.
18 For about five to six months in early 2008, the plaintiff worked at the Waltzing Matilda Hotel as a casual barmaid and waitress.
19 The plaintiff then obtained work as a trainee secretary with Victorian Compensation Lawyers where she worked for about five months. She was then unemployed for about six months before she obtained work with the defendant.
20 The plaintiff holds a Certificate II in Hospitality; Certificate III in Business Legal Admin 2008; RSA 2005; First Class and On-line Galileo Certificate; Volunteer ESL tutor 2006, and GOPE Young Ambassador. She has a Certificate IV in Tourism Operations and completed VCAL Vet.
21 The plaintiff commenced employment with the defendant on or about 23 February 2009 as a retail services officer. Her job involved receptionist work, undertaking customer service duties, doing vehicle checks to see if they were clean or returned with any marks, as well as regular office-type duties such as answering the telephones and data entry (“the duties”).
22 The work was permanent full time on a rotating roster of six days a week and then four days the next week, working 7.30am to 6.00pm.
23 On the said date, whilst demonstrating to a customer how to use the truck tailgate, the plaintiff felt an immediate sharp pain to her lower back (“the incident’).
24 The plaintiff did not report the incident immediately because she did not want to lose her job. The pain persisted and seemed to be getting worse. Over the next six weeks, the pain was manageable some days but on others, it was much worse.
25 The plaintiff first consulted her general practitioner, Dr Henetigala, on or about 13 May 2009. She deposed she told him what had happened and that her back was really sore.[8]
[8]The plaintiff told him in June 2009 of a work incident
26 The plaintiff was sent for a CT scan which showed a disc protrusion in her lower back.
27 The plaintiff took 14 and 15 May 2009 off work and returned on normal duties on 16 and 17 May 2009, resigning the following day after advising that the defendant advised she could not continue working because of increasing back pain.
28 The plaintiff lodged a WorkCover claim in June 2009 which was subsequently rejected. However, later, the defendant accepted the plaintiff’s claim for ongoing medical and like expenses, as well as weekly payments for about seventeen months.
29 The plaintiff saw Dr Woo on 24 June 2009. He referred her for physiotherapy with Mr Li in Dandenong, whom she first saw in mid-2009. She had a couple of sessions but was not able to continue as she was not working and could only do the seven or eight Medicare funded visits.
30 The plaintiff was also referred to a psychologist, Ms Durmaz, whom she saw from March 2010 until the end of 2013.
31 The plaintiff was referred by Dr Woo to Mr Barrett, an orthopaedic surgeon, in June 2009. He confirmed she had a serious disc problem and referred her for an MRI scan. Mr Barrett then explained to the plaintiff her lower back problems and that she needed to be careful with activities and if she was to work, it could only be light work without any lifting, pushing or stooping.
32 Over the next eighteen months, the plaintiff saw numerous doctors including a neurosurgeon, orthopaedic surgeons as well as consultant psychiatrists. She had been unable to get back to work and the delay with the acceptance of her claim did not help her physical or psychological wellbeing.
33 In the initial stages, the plaintiff was taking OxyContin, Naprosyn, Di-Gesic and Panadeine Forte. She thought she had been prescribed OxyContin by Dr Woo in May 2010 because of her back.[9]
[9]T61
34 When the plaintiff saw Mr Barrett in July 2009, he told her she may have to seriously consider a spinal fusion between the L4-S1 as a last resort. That scared her significantly and she became extremely anxious. She was accordingly reluctant to proceed with the operation, although he felt it may improve her pain and also help her return to some sort of work.
35 The plaintiff saw an orthopaedic surgeon, Mr Hunt, in October 2010. He did not think surgery would assist and recommended a functional restoration and pain management program.
36 The plaintiff, as at the time of her first affidavit in October 2011, complained of problems with sleep, difficulty doing housework and interference with her social life as a result of her injury.
37 The plaintiff described limited walking and standing tolerances. She had put on weight through lack of exercise. She had become withdrawn and was unwilling to go out socially. She split up with her boyfriend in May 2010 because of her back problem. She had difficulty with sexual relations.
38 As of October 2011, the plaintiff did not think she would be able to return to unrestricted employment as she was unsure what the future held for her. Numerous opinions all seemed to confirm how bad the disc disruptions were but there were conflicting opinions about surgery.
39 The plaintiff was emotionally upset when she thought about the consequences of the injury. Counselling from Ms Durmaz taught her how to live with her disability.
40 The plaintiff then felt she was too young to have had an injury to cause her so many problems. Before that she was happy, stable and looking forward to working. She was worried her injury may worsen in the future.
41 The plaintiff was involved in a transport accident on 29 September 2011, as a result of which she fractured her humerus and her nose. She had not noticed any change in her back symptoms after that accident and was expected to make a full recovery in relation to her injuries.
42 As of December 2013, the plaintiff continued to suffer constant back pain.
43 The plaintiff was unemployed and had not received any retraining or vocational assistance, thus was in a difficult position. She was unsure about what work she was able to do. She had not worked for more than four year and she had not been given any support from WorkCover in that respect.
44 The problems with prolonged posture continued, as did the plaintiff’s limited social life and other activities.
45 The plaintiff had had to deal with endometriosis and had three laparoscopies and had been prescribed medication.
46 Physiotherapy had stopped two years earlier because it was only providing the plaintiff with symptomatic relief. The back pain always returned.
47 The plaintiff continued to see Ms Durmaz and a psychiatrist, Dr Dharwadkar, on a weekly to fortnightly basis. She was then taking Seroquel, Cymbalta, OxyContin and Naprosyn.
48 The plaintiff underwent treatment for her transport accident injuries and her psychiatric response in relation thereto.
49 The plaintiff had not been given any medical clearance for employment and basically had to fend for herself since the incident. She spent some time looking for work on the internet through ‘Seek’. However, most of the jobs required experience and she had not worked for more than four years and had little to no experience. She had made online applications. She had some previous experience working in an office, doing bar tending and waitressing and she can use a computer. She did not believe she could work behind a desk all day because she cannot sit for long periods as a result of her back pain.
50 The plaintiff had applied for various part-time jobs in the last few months but had not had any interviews. She noted she had a WorkCover claim in her résumé and she had always stated she would not be able to work full time.
51 In that post-incident résumé, the plaintiff set out her career objective was to obtain a career in a professional industry that would enable her to progress in a position.
52 In terms of personal profile, the plaintiff stated she currently had a pending WorkCover claim due to an injury sustained in 2009. That injury disabled her for working for long periods on her feet or sitting in the same position for an extended period of time.
53 The plaintiff noted that she had not worked in the professional field since 2009 and was looking at returning to the workforce part time with flexible working conditions.
54 The plaintiff described her skills as independent and a team worker, communicative, organised and fluent in Turkish, and she detailed her previous work history.
55 The plaintiff denied she knew that mentioning her WorkCover claim, it was likely no employer was going to want to interview her. She was hoping someone would accept her for the way she is but she had not got an interview.[10]
[10]T53
56 The plaintiff was referred to Dr Thomas, rehabilitation and pain management specialist, for pain management in November 2013. She continued to take medication and suffered from constant back pain of fluctuating severity and tried to cope with the fact her life was not normal.
57 The plaintiff had travelled overseas on two occasions. She found that experience painful and she needed to increase her medication when travelling.
58 Mornings and nights are a significant issue for the plaintiff when her back is at its worst. She tried to go to the gym to loosen up and get a bit stronger but that only increased her back pain and she did not return. Hydrotherapy, which she tried a couple of months earlier, was not of much benefit either.
59 The plaintiff tried to go for a walk. She took her dog for a walk and also walked her eldest niece to school. Walking was generally for half-an-hour and painful but she had been told by her doctor that she had to do it to strengthen her back.
60 The plaintiff would like to work, she just does not know what to do. Her back was still very painful and she was aware physical work was not recommended for her. There were problems with prolonged sitting and she was unsure about office work. She went on a disability pension because of her back and she remained concerned about her future.
61 In July 2013, orthopaedic surgeon, Mr Love, in July 2013, told the plaintiff she might need a spinal fusion – a last resort after exploring other avenues of treatment. That upset the plaintiff considerably. She felt as though she was too young to have this type of surgery and would like to try other options but WorkCover kept fighting her claims.
62 The plaintiff continued to have difficulty trying to fall asleep and stay asleep. She took medication which helped and she had bought a bigger bed to get comfortable. Her mother did most of the housework.
63 The plaintiff remained stressed and anxious about her future and depressed with her life as she was only twenty-four and surgery might be required in the long term and that was not something she expected.
64 The plaintiff’s life had changed since the incident. She felt any attempts or prospects of rehabilitation and retraining had been delayed or denied because of the attitude of her former employer, as well as WorkCover.
65 The plaintiff recently deposed that her back pain has not improved. She continues to take medication and does exercises. She has finished the pain management program. She takes one OxyContin tablet per day, either 10 or 15 milligrams, and two or four Naprosyn daily. She also takes two Seroquel, 250 milligrams per day and 90 milligrams of Cymbalta per day, generally, one 60-milligram tablet and one 30-milligram tablet. She also takes iron supplements.
66 Pain increases when the plaintiff is seated for periods such as 30 to 45 minutes and she has to shift to get comfortable or has to sit on an angle. Her ability to stand for longer periods has also reduced. She has to get up and stretch.
67 The plaintiff makes a conscious effort to get out of the house and go out. She can drive. However, she gets increased back pain driving for a long time and can drive up to an hour.[11]
[11]T50
68 When driving longer distances, the plaintiff is always adjusting her posture and it is very uncomfortable and she has to push through. She is trying to live a normal life. She does not want to depend on anyone because she cannot depend on anyone for the rest of her life. It is difficult to manage.
69 The plaintiff attended the Victorian Rehabilitation Centre for a pain management program from 30 July to 19 November 2014. That consisted of twelve physiotherapy, OT, psychology and hydrotherapy sessions. The plaintiff attended the course once a week.[12]
[12]T62
70 During the pain management program, the plaintiff did exercises to strengthen her back muscles.[13] She received temporary assistance with the techniques she was shown. Until that time she did not know how to do exercises to strengthen her back and it was her intention to continue with them.[14]
[13]T42
[14]T43
71 The pain management course assisted the plaintiff in pacing activities, doing exercises to strengthen her back to reduce her symptoms and do more during the day. She agreed she had learnt that and she is going to commit herself to doing that with the hope of her symptoms improving and that she would be able to commit to doing more tasks possibly in the day.[15]
[15]T59
72 The plaintiff did not know whether she was doing things with the intention of being able to commit to an employer. She did not know what the situation would be when she came to applying for a job because she has not done it.
73 During the pain management program, there were times when the plaintiff felt physically better and felt she was learning to cope with her back pain. However, there were times when the pain was excruciating and she ended up in tears. She felt as though this had been her life for five-and-a-half years and had trouble seeing an end to it.
74 The plaintiff continues to see Dr Woo every month for medication, referrals if necessary and for certificates. She saw Dr Dharwadkar, until a month ago.
75 The plaintiff is still unemployed and receives a disability support pension. She has had no vocational assistance or retraining. The plaintiff remains hopeful she might find some part-time work, and hopeful that she may be able to be trained to do some work even on a casual basis so she does not feel useless.
76 The plaintiff has applied for work through online agencies but most of the responses were instantly unsuccessful. They were call centre and receptionist type jobs on a part time or casual basis. She had not even gained an interview, with more than fifteen applications.
77 The jobs applied for involved work as an administrative assistant, receptionist, general office assistant, medical receptionist, travel consultant, office administrator, personal assistant, accounts assistant, data entry invoicing clerk, reporting clerk and legal receptionist.
78 The plaintiff confirmed she had applied for eighteen jobs during 2013 and none during 2014.[16]
[16]T52
79 The plaintiff confirmed a series of skills and personal qualities and attributes she had set out in her pre-injury CV.[17] The plaintiff agreed she had retained the personal qualities and attributes to a certain degree and maybe with further training, she could improve. She did not put any of these skills in the current CV because she did not have them on her computer.
[17]T54
80 The plaintiff is obviously not confident enough anymore to update her CV.[18] Of course there is nothing stopping her from preparing a proper CV setting out her attributes. When she starts applying again, she will not use the old CV but rather the same CV and probably update it.
[18]T55
81 The plaintiff has lost the ability to do customer service or answer the telephone as it has been five-and-a-half years, and she would have to have further training for that but then said she could answer a telephone.
82 The plaintiff denied she had no intention of returning to work. She did have intention but she could not commit to an employer because there were times she could not even get up in the morning. She could not get out of bed, being a twenty-five-year-old, and posed the question, “Do that think that’s fantastic? Do you think that makes me feel so much better for myself? Of course not, no way.”[19]
[19]T57
83 The plaintiff commented, “You don’t know what I have to go through every single day, you don’t see me at home, you don’t see the position I’m in. Respect the fact I have an injury.”[20]
[20]T57
84 The plaintiff did not apply for any jobs in 2014 because she lost confidence. She did not receive one positive email saying come in for an interview. She will give it a go. She has not given up. She will try again when she is ready to get back, when she is ready to boost up her confidence again.
85 It upset the plaintiff significantly that she had not been offered an interview. The employers know she has not worked since she was nineteen and there is a massive gap between her injury and now. She does not believe any employer would want to hire her at her age if they were aware she was on WorkCover for the past five-and-a-half years.
86 The plaintiff agreed, when she applied for jobs, she had every intention of going to the interview and doing the particular job should she be offered it. She was not sure if she would be able to perform, but she would have given it a go.[21] The plaintiff then said she applied for these jobs knowing full well she could not commit to them.[22]
[21]T57
[22]T58
87 When the plaintiff applied for these jobs, she was hoping for at least two to three hours a day, mostly part time and casual positions.[23] She did not remember if she had applied for full-time jobs, the majority of them were part-time and casual positions. The plaintiff agreed, basically she was looking to get a foot in the door. If a casual job turned into a full-time job, that was “great, pretty much”.[24]
[23]T57
[24]T58
88 The plaintiff could not commit to an employer as at times she could not even get out of bed because of pain in her lower back, probably every day or two days, with good and bad days. Sometimes it takes her an hour to get out of bed on those days.[25] With her back condition, she could not promise to be at work every day and on time every day.
[25]T60
89 The plaintiff’s medication plays with her concentration. She did not remember certain things, hence she was struggling in Court because she could not remember.
90 The plaintiff has not been offered any rehabilitation or retraining by the defendant.[26] If she had been offered a job, she would have liked to have tried it. Her intention about returning to work with the employer would have to be flexible with being able to sit and stand and take regular breaks, every two or three hours.[27]
[26]T60
[27]T60
91 The plaintiff’s capabilities are limited. She does not have much of a work history and she is in a position where she has to disclose her injury. Her left arm does not stop her working. Her lower back makes it difficult to do a job that is mainly seated. The fact she has to take daily strong painkillers affects her concentration.
92 The plaintiff has lost weight to try and get her life in order and discussed coping techniques with her doctors during the pain management program but none of this had made her back any better.
93 The plaintiff regularly sees her sister who has four children, the youngest of whom is a year old and the oldest is seven. They are capable of looking after themselves with her supervision. She would not say she was babysitting. Maybe three or four times a week she supervises the children for three or four hours a day, sometimes less, but she is not constantly looking after them.[28] The plaintiff is able to carry the children if necessary but doing so aggravates her symptoms.[29]
[28]T51
[29]T52
94 The plaintiff still manages to do the shopping and gets assistance if the trolley is heavy. She struggles with housework.
95 The plaintiff’s sleep continues to be affected by pain and the medication assists her falling asleep. Because she has problems sleeping, she oversleeps on occasions and is significantly drowsy the following day and needs to take regular naps or breaks. That has been the situation over the last five years.
96 The plaintiff’s social circle has remained minimal and she has little interest in renewing, or motivation in involving, herself in her social life.
Medical evidence as to work capacity
The Plaintiff
97 A number of medical practitioners relied on by the plaintiff do not consider that she has a capacity for suitable employment.
98 The plaintiff’s general practitioner, Dr Woo, last reported in September 2014. He considered that the plaintiff is permanently incapacitated for any type of work, no matter how light, due to an L5-S1 prolapse. He thought her condition is stabilised and was unlikely to improve with treatment.
99 Dr Woo noted the plaintiff needed further intermittent physiotherapy to strengthen her back and he noted her further treatment with a pain specialist for the adequate control of her back pain.
100 Treating orthopaedic surgeon, Mr Brian Barrett, in October 2010, thought the plaintiff remained quite incapable of returning to either her pre-injury duties or even lighter and part-time work owing to the severity of her symptoms and the physical nature of her injuries.
101 Mr Barrett thought the plaintiff may need to seriously consider surgery which would certainly improve her current marked symptoms and disability but would not allow her to go back to her previous and full work in the future.
102 Orthopaedic surgeon, Mr Bruce Love, as of July 2013, thought the plaintiff’s prognosis for recovery and return to meaningful work was poor and at that stage, he considered she was not capable of working and not likely to be capable of working in the foreseeable future.
103 Consultant neurosurgeon, Mr Bittar, in May 2013, thought the plaintiff was permanently incapacitated for her pre-injury duties and given her sitting and standing intolerance as well as the significant medication requirements and high pain levels, her capacity for suitable duties was negligible.
104 Other practitioners considered the plaintiff has a capacity for light work.
105 Vascular surgeon, Mr Flanc, in December 2013, thought the plaintiff had a physical capacity for part-time office-type duties provided she would be able to get up and move around whenever her discomfort became more severe.
106 Occupational physician, Dr Thomas, as of December 2013, thought the plaintiff had no capacity to perform work which was physically based. He considered work in a back friendly environment in a limited part-time capacity would be possible, pending an improvement in the plaintiff’s overall functionality and emotional state.
107 Treating orthopaedic surgeon, Mr Hunt, as of late December 2013, thought the plaintiff was now restricted to light physical work or sedentary-type work which did not involve bending, lifting or twisting activities or prolonged sitting or standing.
108 Professor Boling, consultant neurosurgeon, in September 2010, thought the plaintiff was unfit for her pre-injury duties and that her degenerative disease and back pain would prevent her from activities that required lifting, bending or twisting.
109 Dr Roberts, consultant neurologist, thought, as of August 2013, that it was likely the injury was sufficient to prevent the plaintiff from being able to return to her pre-injury duties. It was considered if mental or behavioural aspects were put to one side, it was likely the plaintiff could return to some suitable alternative employment. In those circumstances, she would have some continued pain, although this should not have prevented her from returning to alternative employment.
110 From a psychiatric point of view, psychologist, Ms Durmaz, in January 2014, thought that the plaintiff was incapacitated to undertake suitable modified or alternative employment tasks now and for the foreseeable future.
111 Dr Dharwadkar, psychiatrist, thought, as of October 2013, the plaintiff had no current work capacity.
112 In July 2013, Dr Kornan considered the plaintiff’s ill health condition prevented her from performing her pre-injury duties and suitable alternative duties.
113 Dr Epstein, in June 2013, thought taking into account only the plaintiff’s psychiatric state, she would have difficulty working because of her fatigue, problems with memory, concentration, irritability and withdrawal.
114 Dr Epstein considered the plaintiff could return to work on a part-time basis in a supportive work environment with little pressure or responsibility and if that was successful, it would lead to some improvement in her mental state.
Vocational evidence
115 Leonie Schneider, vocational assessor, carried out a vocational assessment in December 2012.
116 Ms Schneider concluded that the plaintiff had no current work capacity due to the ongoing nature of her injury and prevailing symptoms and her lack of suitability for vocational rehabilitation, job seeking and placement.[30]
[30]T75 – Ms Schneider’s opinion was not admissible, insofar as she expressed an expert medical opinion
The Defendant’s medico-legal evidence
117 When Mr Sinha saw the plaintiff on 22 July 2009, he thought she suffered from an uncomplicated disc degenerative disease of the lumbar spine rather than an injury. In his view, the plaintiff then had a current work capacity, including for her pre-injury duties.
118 Mr Ian Jones, orthopaedic surgeon, initially examined the plaintiff on 16 October 2009 and later saw her on 21 May 2013, 10 December 2013 and 8 October 2014.
119 Mr Jones noted that the plaintiff presented with complaints of lumbar pain and stiffness with no neurological signs or symptoms.
120 Mr Jones thought the level of pain described by the plaintiff would seem to preclude her from engaging in any type of physical activity whatsoever. Despite that, he believed she had the capacity to undertake sedentary employment of a clerical nature. However, continuous sitting would likely exacerbate her back symptoms. She would need to be able to stand and walk from time to time, and any return to work would be on a graduated basis.
121 Mr Jones thought the plaintiff would be capable of tourism and travel advice, a legal secretary, general clerical worker, general clerk and clerical and office support worker. He thought she would be capable of working as an administrative assistant, legal administrator, registry administration officer, reservations consultant – online travel administration and administration assistant for a corporate firm in Parkville within the limits he had prescribed.
122 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff in April 2011. He thought that she had no physical signs of any marked lumbar disc injury – no neurological abnormality and only minor limitation of lumbosacral spine movement.
123 Mr Dooley considered the plaintiff would be fit to return to pre-injury work as a receptionist, able to operate a computer, and able to sit and stand alternately every hour. He noted that she was independent in her activities of daily living. He thought that she was fit to return to suitable employment, initially working part time and able to sit or stand alternately every half-an-hour or so.
124 Dr Yong, specialist occupational physician, most recently examined the plaintiff in October 2014.
125 Dr Yong diagnosed a discal injury to the lower back with no signs of radiculopathy or neurocompression. He considered that had been complicated by the presence of a Chronic Pain Syndrome and deconditioning. He confirmed the functional signs continued to reduce.
126 Dr Yong thought the plaintiff had a current capacity to work within the following restrictions – avoid repeated bending and twisting the back; firm pushing or pulling on a repeated basis and lifting more than 4 kilograms on a repeated basis. He thought, on the basis of those restrictions, the plaintiff would be able to do a significant range of her pre-injury work including receptionist work, administrative duties, meeting customers and doing visual checks. He noted that as part of an activity based recovery program, the plaintiff should be encouraged to participate in a rehabilitation program. He thought the plaintiff had a current capacity for work and would benefit from a multidisciplinary pain management program.
127 Dr Yong would initially recommend the plaintiff work four-hour shifts for four days a week, increased back to pre-injury hours over six months.
128 Mr Kevin Siu, neurosurgeon, has examined the plaintiff on a number of occasions, initially in May 2013, and most recently, in September 2014. He thought she had sustained a soft tissue ligamentous injury against a background of degenerative change.
129 Mr Siu considered the plaintiff’s barrier to returning to work was an element of her psyche. He thought she was capable of suitable work and should undergo a vocational assessment. He thought her lack of motivation was one of the major barriers and she should continue to receive psychological support. In his view, her medication intake was excessive.
130 Mr Siu disagreed with Professor Bittar’s view that the plaintiff was incapable of returning to pre-injury duties. Furthermore, he did not believe her pain was related to the injury and her back. The pain she reported was a defence mechanism against the possibility of further injury to the back and certainly for fear that further injury may require her to undergo major spinal surgery. The point he wished to emphasise was that the plaintiff could drive for an hour from Keysborough to the City. She had a car accident, sustaining fracture of the humerus, but yet had no aggravation to her back.
131 Mr Siu thought the plaintiff’s lack of motivation and depression had contributed to a significant reduction in social activity and she had no work capacity because of her depression. As far as her physical symptoms were concerned, he thought she was capable of appropriate duties and could certainly return to light duties such as working in an office provided she was not required to lift and had a weight lifting restriction.
132 Dr Shan, psychiatrist, examined the plaintiff on 20 April 2011 and 14 October 2014. He diagnosed an Adjustment Disorder which he thought was work related if it was concluded that the physical injury was work related.
133 Dr Shan thought the plaintiff was capable of work within her physical restrictions and the psychiatric diagnosis did not, by itself, lead to an incapacity for any work.
134 Dr Prytula, psychiatrist, examined the plaintiff in September 2012. He diagnosed a Major Depressive Disorder with the symptoms causing clinically significant distress. He thought the psychiatric condition resulted in the limitation to the plaintiff’s daily activities of living and social functioning. He considered from a psychiatric point of view, she had no current work capacity and her prognosis was guarded.
Pre-incident résumé
135 The plaintiff compiled a résumé detailing her employment history pre 2008.
136 In terms of key employment skills, responsibilities and personal qualities, she detailed customer service; computer literate and intermediate MS Office knowledge; interpersonal and communication skills; cash register operation and cash handling; general cleaning skills; OH & S knowledge; telephone skills/manners; meeting and greeting clients; very good attention to detail; ordering and managing office amenities; excellent keyboard skills; very good oral and written skills; general typing of correspondence; carrying out incoming and outgoing mail; hardworking, punctual and reliable; always striving to do her best; extremely keen to learn new skills and build on those already possessed; fast learner and good team player; patient and friendly; get along with others; able to follow instructions and she was honest and trustworthy.
Overview
Credit
137 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[31]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[31](2010) 31 VR 1 at paragraph [12]
138 I found the plaintiff to be a direct truthful witness. Whilst she was under surveillance for a total of 75 hours, there was only 25 minutes of film, none of which was shown.[32] Further, there was no suggestion by any medical examiner that the plaintiff was exaggerating her condition on examination.
[32]T104
139 As the plaintiff was under twenty-six years of age at the date of injury, pursuant to s134AB(38)(e)(i) of the Act, she must establish that, at the date of the hearing, she has a loss of earning capacity of 40 per cent or more. Further, she must establish, pursuant to ss(e)(ii) of the Act, that she will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
140 In the Legislative Assembly on 23 May 2000, The Honourable M M Gould, Minister assisting the Minister for WorkCover, said:
“The three year pre and post injury period does not apply in the case of a worker referred to in Section 5A(7) of the Act or a worker under the age of twenty-six at the date of injury. The Government recognises that apprentices and workers undergoing training for the purposes of being qualified and in general terms workers under the age of twenty-six should not be subject to a six year period of inquiry of earnings or earning capacity. In the case of such workers the Court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.”
141 The rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings.
142 Judge Millane, in Gauci v Winmart Pty Ltd[33] at paragraph 35, said as follows:
“It was common ground that when dealing with a worker under the age of 26 the common law position prevails, such that the Court may have regard to the probable income from personal exertion the plaintiff would have earned but for his injury over his probable earning life, rather than the formula contained in sub-section (38)(f) of the provision.[34] As submitted by counsel on behalf of the plaintiff, the determination of this young worker’s loss of earning capacity involves a discretionary judgment exercised with due regard to the facts.”
[33][2012] VCC 53
[34]See the Second Reading Speech (Victoria, Hansard, Legislative Assembly, 23 May 2000, 1169)
143 In CappervMunday Sales Pty Ltd & Anor,[35] Judge Millane was not persuaded that, having enlivened the common law test as it related to the assessment of loss of earning capacity, Parliament also evinced an intention to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the time of the injury.
[35][2013] VCC 1015
144 Her Honour set out what is needed is an understanding of the evidence that permits a finding one way or the other about whether the plaintiff has, at the date of hearing, a permanent loss of earning capacity of 40 per cent or more.
145 In October 2012, his Honour Judge Brookes conveniently summarised these principles in a leave application, Jarvis v Woolworths Ltd[36] citing Heydon J (as he then was) in State of New South Wales v Moss[37] as follows:
[36][2012] VCC 1329
[37](2000) 54 NSWLR 536
(i)
“evidence of past economic loss is some, though not
conclusive, evidence of reduced earning capacity;[38]
(ii)it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [she] is likely to earn after it;[39]
(iii)where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [she] can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;[40]
(iv)the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;[41]
(v)the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[42]
(vi)the task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.”[43]
[38]State of New South Wales v Moss (supra) at paragraph [64]
[39]paragraph [66]
[40]paragraph [69]
[41]paragraph [71]
[42]paragraph [72] and [74]
[43]paragraph [87]
146 The plaintiff at present is in receipt of a disability pension, last having worked in 2009. At that time, she was earning about $32,500 per annum, or $625 gross per week, 60 per cent of which is $375. Counsel for the plaintiff submitted, however, that figure does not most fairly reflect her “without injury” earning capacity given her young age of nineteen at the date of injury.
147 It was submitted the plaintiff would have earned an average of $880 per week from her employment as a car rental officer into the future but for her low back injury.[44] It was submitted that more fairly reflected her “without injury” earning capacity, 60 per cent of which is $528 gross per week.
[44]Gross average weekly wage for retail service officer – Ms Schneider’s report of December 2012.
148 Counsel for the defendant did not take any issue with the lesser figure.[45]
[45]T95
149 The primary submission on the plaintiff’s behalf is that she is now totally incapacitated for work, as Ms Schneider, Dr Woo and Mr Barrett opined. Alternatively, she has lost at least 40 per cent of her earning capacity.[46]
[46]T9
150 Counsel for the defendant submitted the plaintiff has a light work back.[47]
[47]T86
151 The basic submission on the defendant’s behalf was that there was simply no medical evidence upon which it could be determined the plaintiff had suffered a permanent loss of earning capacity of 40 per cent having completed a relevant rehabilitation program in the last fortnight.[48]
[48]T78
152 Counsel for the defendant submitted the plaintiff cannot discharge the onus because there has not been sufficient time post her rehabilitation to really provide any opinion as to her future work capacity. Further, there was no report from Dr Thomas[49] or Dr Woo following the program.[50]
[49]T79
[50]T81
153 However, when he last reported in September 2014, Dr Woo then thought the plaintiff’s condition had stabilised and she was not likely to improve with treatment, including rehabilitation.[51]
[51]T103
154 Counsel for the defendant also relied on Dr Thomas’ view in November 2013. Whilst he acknowledged that the plaintiff could not do physical work, Dr Thomas thought there was some chance of work in a back friendly employment in a limited part-time capacity pending an improvement in her overall functionality and emotional state, noting there was a functional restoration and rehabilitation program she had to undertake.
155 However, Dr Thomas, the supervisor of the program, did not detail any anticipated significant improvement in the plaintiff’s work capacity following completion thereof.
156 Counsel for the defendant also submitted Mr Bittar’s views about the plaintiff’s work capacity were subject to the completion of a pain management program. Whilst he reported that the plaintiff’s current symptoms were likely to persist into the foreseeable future and the prognosis was relatively unfavourable, he expected her condition would improve with appropriate treatment; that being a pain management program.[52]
[52]T80
157 In my view, Mr Bittar’s comments as to the future could not be read as saying the plaintiff was likely to get back to work.[53] Whilst he agreed pain management would be very appropriate at this stage and he expected the plaintiff’s condition will improve, he did not go as far as to say this program would increase the plaintiff’s work capacity
[53]T102
158 Whilst Mr Gale had thought treatment was submaximal in September 2012,[54] he thought the plaintiff’s level of currently assessed impairment was likely to have stabilised and it was unlikely it would alter significantly with or without medical treatment. Although he thought the plaintiff would benefit from a pain management program for physical management of her low back condition, he did not say such a program would result in an increased capacity for work of any significance.
[54]T80
159 In my view, whilst learning to do exercises and continuing them may strengthen the plaintiff’s back,[55] this will not result in a situation where the plaintiff will have an earning capacity where she does not suffer the requisite 40 per cent loss.
[55]T82
160 Although there may be hope for an improvement in functionally which would render the plaintiff capable of undertaking some limited employment, this does not translate into a capacity for employment in the future which would result in the plaintiff earning in excess of 60 per cent of her “without injury” capacity.
161 As counsel for the plaintiff submitted, it was a “wish and a prayer” that twelve weeks of rehabilitation one day a week to convert into getting back to work once again. It was submitted it was speculative and inappropriate to form such a conclusion in these circumstances.[56]
[56]T103
162 I accept the plaintiff was very direct and definite in her evidence. If she was capable, she would find her way into any sort of employment if she could. She has been out of work for a long time. I accept that if she could work she would be working.[57]
[57]T98
163 Whilst it is early days, the plaintiff has only received temporary relief from the pain management program. I accept the whole concept of that course was for her to learn, if she could, to live with the pain and to pace her activities within her tolerances. It was not a program where it was envisaged the plaintiff would be rehabilitated to such an extent she would be a reliable and pain free employee able to attend work on a regular and sustained basis.[58]
[58]T100
164 Learning to live better with pain does not equate to a capacity for work.[59]
[59]T102
165 Clearly, the plaintiff has significant problems with back pain on a daily basis, having difficulty on some days simply getting out of bed.
166 Now aged only twenty-five, the plaintiff has had little work experience, having last worked five-and-a-half years ago. Before that time, her work experience was limited to administrative assistant clerical work or bar work in short-term jobs.
167 As a result of her back condition, the plaintiff has problems with sustained postures and activities involving lifting, bending, pushing or pulling. In my view, at best, the plaintiff has a light work back and would be capable of a couple of hours’ work on alternate days in a sedentary job where she was able to change posture freely. She could not be relied upon to attend work on a regular sustained basis.
168 Further, the plaintiff continues to require high levels of painkilling medication which affect her ability to concentrate.
169 Taking into account all the evidence, I am satisfied that the plaintiff will suffer a 40 per cent loss of earning capacity for the foreseeable future.
170 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
171 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more.
172 The plaintiff is not a suitable candidate for any type of vocational retraining due to her pain levels and resultant restrictions and also her high medication intake which results in poor concentration and a lack of alertness.
173 As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of the Act.
174 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity in relation to her clause (a) application.
175 Having made this finding, I am not required to consider the application pursuant to clause (c) for a psychiatric impairment.
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