Messina v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

SERIOUS INJURY LIST

Revised
Not Restricted
Suitable for Publication

Case No. CI-21-04863

PATRICIA MESSINA	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August and 3 October 2022
DATE OF JUDGMENT:	19 October 2022
CASE MAY BE CITED AS:	Messina v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 1731

REASONS FOR JUDGMENT

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Subject:ACCIDENT COMPENSATION
Catchwords:               Serious injury application – pain and suffering – loss of earning capacity consequences
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment:                   Leave granted to commence a proceeding for pain and suffering and pecuniary loss damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards KC with Ms M Fudim	Zaparas Lawyers
For the Defendant	Mr N J Dunstan	Minter Ellison

HIS HONOUR:

Introduction and background
1The plaintiff, Patricia Messina, was born in Argentina in 1969. At age eleven she migrated to Australia with her family. She completed her schooling at year 11 and then entered the workforce. She has had several different jobs, interspersed with time out of the paid workforce to raise her three (now adult) children. By 2015, she had obtained a Certificate III in Aged Care and commenced work as a personal care attendant.
2In November 2018, the plaintiff commenced work as a personal care attendant at a nursing home operated by Care Staffing Solutions Pty Ltd (“the employer”). In the course of that work, on 16 January 2019, she was showering a resident of the nursing home when she experienced the sudden onset of pain in her low back, right hip and right leg (“the incident”).
3The plaintiff has effectively not returned to any work since the incident, although she did attempt a few shifts with the employer through until January 2019, when she ceased work.
4These background facts are not in dispute and form the basis for the proceeding before the Court, which is a “serious injury” application brought by the plaintiff pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The plaintiff seeks leave of the Court commence a common law proceeding for pain and suffering and loss of earning capacity damages.
5The plaintiff relied upon injury to the spine, injury to the right hip and a psychological reaction as the “serious injury”, bearing in mind that those injuries/conditions cannot be combined.
6The relevant legal principles are not in dispute in this proceeding. They are well known and neither party referred to any relevant case law.
7At the commencement of the proceeding, the defendant, through its counsel, indicated that the main thrust[1] of its defence to the proceeding was in respect to economic loss and the plaintiff’s residual capacity for suitable employment. The defendant placed emphasis on the fact that the plaintiff’s treating general practitioner, Dr Simon Benson, had for some time certified her as fit for suitable employment.
[1]Transcript (“T”) 5, Line (“L”) 27.
8The defendant did not suggest that the plaintiff could return to her pre-injury employment, but it submitted – consistent with the certification from Dr Benson – that she has an “after injury” earning capacity such that she does not meet the test for “serious injury”. It submitted that she had a retained capacity for sedentary work and so the requisite loss was not made out.[2]
[2] T 52, L 1-3.
9Next, by way of a fact not in dispute, the parties agreed that the plaintiff’s “without injury” earning capacity was $986 gross per week,[3] which equates to $51,272 gross per annum. Sixty per cent of $51,272 is $30,763 (or $591.60 gross per week).
[3]This figure was agreed between the parties – T 4, L 17.
10As mentioned, what is in dispute is the plaintiff’s “after injury” earning capacity. The plaintiff contended that realistically she had no “after injury” earning capacity. Alternatively, her senior counsel submitted that any “after injury” earning capacity from a physical point of view because of her low back injury, on a sustained basis, would be for no more than 12 hours per week[4] and so on the evidence she had established the requisite loss.
[4] T 67, L 9.
11Whilst the main thrust of the defence was directed to the issue of the plaintiff’s loss of earning capacity, the defendant did not formally concede “pain and suffering” serious injury and so that is also an issue that I must decide.

Legal principles
12I shall deal briefly and broadly with the relevant legal principles, even though they are not in dispute. Firstly, the plaintiff must establish that she has suffered “compensable injury”.
13Regarding compensable physical injury, in this proceeding there is no dispute that the incident caused the plaintiff to suffer an injury to the lumbar spine, described as aggravation of lumbar spondylosis.   There is also no real dispute that the plaintiff suffered injury to the right hip, described as a right trochanteric bursitis, although the medical evidence raised as an issue whether the plaintiff had an ongoing hip injury.
14The plaintiff also relied on a claimed “severe” psychiatric condition caused by a reaction to one or the other of the claimed physical injuries, but no great emphasis was put on the claim based on psychiatric injury and her senior counsel accepted it was not as strong as the claim based on a physical injury.[5]
[5]         T 61, L 27.
15As I understood the evidence, the main thrust of the plaintiff’s case was directed towards the low back injury and whether that had produced a “very considerable” pain and suffering or economic loss consequence. Accordingly, these reasons will similarly focus on the low back injury. But at this early stage, I indicate that I am not satisfied that the test for “serious injury” is made out in respect to the claimed psychiatric condition.
16To establish “serious injury” in respect to pain and suffering consequences the plaintiff must identify “very considerable” consequences from the identified compensable injury.
17Next, in order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and at least very considerable, as per the narrative test set out in s325(2)(b) and (c) of the Act.
18I will shortly set out in more detail the relevant evidence but in this proceeding, the defendant did not suggest that the plaintiff could return to her pre‑injury employment considering the injury to her spine. Accordingly, accepting that the injury to the spine prevents her from returning to her pre‑injury employment as a personal care attendant, in my view that constitutes a “very considerable” pecuniary loss consequence to her, and the narrative test regarding pecuniary loss is satisfied.
19For reasons that I shall come to, I am not satisfied that either the right hip injury (or the claimed psychiatric condition) would prevent her from returning to her pre‑injury employment and that aspect of the narrative test regarding pecuniary loss is not made out.
20Upon establishing “very considerable” loss of earning capacity consequences (in this proceeding by reference to the injury to the spine), the plaintiff must then satisfy the statutory formula as contained in s325(2)(e) and (f) and (g) of the Act, namely, whether or not she has a loss of earning capacity of 40 per cent of gross earnings measured as set out in s325(2)(f) and will permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more of her gross earnings as required by s325(2)(e)(ii). It is this aspect that is at the nub of the contest in this proceeding.
21To satisfy the statutory formula, staying with the injury to the spine, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a)   the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b)   the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).[6]
[6]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70].
22Finally, by way of preliminary legal issues, and again as already set out, the defendant submitted that the plaintiff had “after injury” a capacity for a range of suitable employments. On the other hand, and notwithstanding the certification from Dr Benson, the plaintiff submitted that whilst she might have some theoretical residual capacity for employment, at a practical level she had no reliable capacity for “suitable employment” or alternatively, any realistic “after injury” capacity for “suitable employment” was for no more than ten to twelve hours per week, in which case the statutory formula was satisfied.

The plaintiff’s affidavit evidence
23The plaintiff’s background and employment history are set out in her first affidavit[7] and are not in dispute. She has worked in several different jobs, and she candidly accepted during cross-examination that had she not been injured then she had the skills and intellectual capacity to perform a desk job[8] (sedentary employment). As I discussed with counsel for the defendant, this case boils down[9] to whether I conclude that the evidence establishes that the plaintiff’s back pain and impairment means that, despite a theoretical “after injury” earning capacity (as per the certification from Dr Benson), such capacity is at a level where she satisfies the statutory formula.
[7]Affidavit of plaintiff sworn 18 June 2021, Amended Plaintiff’s Court Book (“APCB”) page 32.
[8]         T 48, L 20.
[9]         T 54, L 27-31; T 55, L 1-21.
24In any event, returning to the affidavit evidence, in her first affidavit the plaintiff described the onset of back, right hip and right leg pain after the incident. She then described her attendances on Dr Benson and then for various conservative treatments with other health practitioners. In March 2019, she underwent a facet joint injection at L5/S1. On 8 April 2019, she underwent an injection into her right hip. In mid-2019 she was referred to Mr Justin Hunt, orthopaedic surgeon. She described attendances for pain management including with Dr Jamie Young and Dr Malcolm Ong.
25In her first affidavit the plaintiff set out a range of pain and suffering consequences to which there was no real challenge. She described pain in her low back which spread into her hips and legs. She described the pain in her lower back as very intense and worsening with movement. She set out a range of limitation for day-to-day activity including driving, sitting/standing, bending/squatting, walking, cleaning, sleeping, looking after grandchildren, socialising, shopping, and the like.
26In a second affidavit sworn 14 July 2022,[10] the plaintiff set out her ongoing treatment, which had been conservative attendances on Dr Ong and on a different pain specialist, Dr Amutha Samuel. She described ongoing attendance on Dr Benson and for physiotherapy with Mr Campbell Hogan. In that affidavit she also said that:
“I smoke daily to relieve my pain. I tried marijuana in about late 2021, and I found that it helped me. Sometimes when I want to do some gardening, I smoke marijuana and that allows me to do some repotting work. I do not take any medication because it makes me sick.”[11]
[10]APCB 40.
[11]APCB 41, paragraph 8.
27Leaving the affidavit evidence for a moment, the issue of the plaintiff’s marijuana consumption was explored with her during cross-examination. She gave evidence that most days she smokes marijuana.[12] She uses marijuana to help her manage the pain.[13] It was suggested to her that her marijuana use affected her motivation and she disagreed. She said the marijuana “relaxes me, it doesn’t take the pain completely, but it gives me a different state of mind. It just relaxes me”.[14] She eventually conceded that she had not told Dr Benson about her marijuana use.[15]
[12]        T 19, L 1.
[13]        T 18, L 17.
[14]        T 48, L 25-27.
[15]        T 44, L 27.
28In her second affidavit the plaintiff set out a range of pain and suffering consequences including ongoing constant pain in the low back, worse on the right side and travelling down her right leg. She described the low back pain as worse if she was to sit, stand, or walk for too long, twist or bend her back. She described ongoing interference with sleep and smoking marijuana before bed to help her to get to sleep. She described ongoing restriction for day-to-day activity.
29As mentioned, there was no real challenge to the pain and suffering consequences from the lumbar spine injury, or for that matter the right hip injury, as set out in her affidavits, other than a broad challenge in cross examination as to the extent of her symptoms and restrictions, particularly by reference to video surveillance, and as to her motivation.
30Pausing here, this proceeding was conducted in the “usual manner”. The plaintiff tendered affidavits and medical reports upon which she relied. The defendant tendered medical reports and medical records upon which it relied. The plaintiff gave oral evidence. In addition, the defendant played in court and tendered video surveillance taken at different times on 16 June 2022.[16] The video surveillance depicted the plaintiff engaging in a range of ordinary daily activity, such as attending for an appointment, travelling in a car, standing, walking, and wandering around a shopping centre with her partner. The defendant submitted that while there was no huge attack on the plaintiff’s credit,[17] there was some exaggeration by the plaintiff during her evidence and as revealed in the video surveillance.
[16]        Exhibit D1.
[17]        T 52, L 4-5.

The plaintiff’s oral evidence
31Much of the cross-examination was directed to the plaintiff’s attendances, or perhaps more accurately her lack of attendances, on Dr Benson and as to what he had said about her residual work capacity in medical certificates. Dr Benson’s medical records were tendered[18] to demonstrate infrequent attendances on him in the last twelve months or so, and that those attendances were by telephone. The plaintiff accepted that the last face-to-face attendance on Dr Benson was in July 2021. She was cross-examined about WorkCover certificates provided by him and the fact that he had certified her as having a capacity for suitable employment with limitations to “[a]void sitting for more than one hour, no bending, no squatting, no kneeling. Alternate sit to stand and no lifting more than 2 kilograms”. It was put to her that Dr Benson was saying that within those limitations she had a capacity for suitable employment and the plaintiff accepted that was what it said.[19] She was asked whether she agreed with Dr Benson’s certification and said that “I do disagree”.[20] She said that the certification had come about “because it wasn’t for work, it was actually for a course. … I don’t know if I could because I have pain, so I don’t know. I was just going to give it a go but I never got the chance to.”[21]
[18] As part of Exhibit D2.
[19]T 11, L 1.
[20]T 11, L 6.
[21]T 11, L 7-11.
32In the face of the certification from Dr Benson, the plaintiff said on several occasions that she did not accept that certification as reflecting a residual capacity for work because she was in pain and is still in pain.[22]
[22]See for example, T 12, L 23-24.
33Returning to deal more fully with the cross-examination about her use of marijuana, she accepted that she no longer uses prescription medication.[23] In respect to her marijuana consumption, she said:
[23]T 18, L 1-2.
Q:“How do you say the smoking of a joint every morning after breakfast affects your motivation?---
A:I don't actually - I'm going to rephrase that, I don't smoke it every morning, I don't smoke marijuana every morning. I have smoked, like - when I'm thinking I've got nothing else to do and I have a pain and I mitigate [sic], I put music. I lie down because at times I have strong pain and that relieves the pain by lying down and having marijuana.
Q:I'm just taking it from your affidavit there, it is paragraph 8, 'I smoke marijuana daily to relieve my pain', that's what you deposed to just a few weeks ago?---
A:Daily, yes, if I've got nothing to do. If I have to drive I will not.

Q: So do you take marijuana daily?---
A: I don't take it daily if I have to drive, I'm a responsible adult.
HIS HONOUR:
A:You weren't asked - just try and focus on Mr Dunstan's question. I'm assuming you haven't had a marijuana joint before coming to court this morning?---
Q:No, so I can't say that - - -
Q:But on a day when you're out and about, does that mean when you get home you might have one?---
A:Yes, definitely.
Q:So is the practical answer to Mr Dunstan's question that most days you smoke marijuana?---
A:Yes, that's right, Your Honour.” [24]
[24]T 18, L 10 – T19, L2.

34The plaintiff was cross-examined about her physical capacity. She said she could walk 3 kilometres in slow pace holding someone’s hand and “Yes, and that’s in influence of marijuana as well.”[25] She said she could stand for about 60 minutes and sit for maybe an hour.
[25]T 20, L 1–2.
35On many occasions during her oral evidence, the plaintiff referred to her ongoing pain. She did not specifically locate the area where she had pain in her oral evidence, although in re-examination she said that, in isolation, each of her low back and right hip would prevent her from holding down a job, even on a part-time basis.[26] Having considered the whole of the evidence, in context, I understood her oral evidence, such as it was, to be of ongoing low back pain that she mostly referred to and, because of that low back pain, an inability to work. Neither party made submissions about the state of the evidence in this regard.
[26] T 49, L 11–22.

Credit
36As has been said many times, the credit of the plaintiff is often of critical importance to the resolution of a “serious injury” application.
37This is not a proceeding in which the defendant sought to put the credit of the plaintiff as a huge issue, but equally the defendant submitted that the plaintiff had exaggerated some of her restrictions, as demonstrated by the video surveillance.
38It is relevant in my view that the defendant relied on video surveillance obtained of the plaintiff on only one day. The video surveillance was not provided to any of the doctors for comment and must be analysed in both time and context.

39The video surveillance on 16 June 2022 was obtained when the plaintiff attended a pre-arranged medical appointment. Notably, her partner collected her from that appointment. He then drove her to a shopping centre where they engaged in mundane activity at a food court and at a Coles supermarket. The plaintiff was seen to move slowly during the video surveillance, albeit without any obvious restriction. At one stage she carried a very small pot plant, but she did not engage in any vigorous activity or heavy lifting.
40In my view the video surveillance neither proved, nor disproved, that she had a bad back (or hip). It demonstrated that she was able to engage in ordinary light daily activity. In the circumstances of this proceeding, it did not assist her claim based on a psychiatric injury, but equally I consider the video surveillance to be relatively benign when it comes to an assessment of the consequences from a claimed physical injury and in particular the back injury. It did not impugn her credit or her claimed consequences from the back injury.
41I am satisfied that the plaintiff is a credible witness. True it is that some of her answers were not responsive to the questions asked of her and at times it took several attempts to get her to a direct response, but perhaps that is not surprising in circumstances where the plaintiff was born overseas and the process of giving evidence is an unfamiliar one to her. Ultimately, I am satisfied that I can rely on her oral evidence and what she has said in her affidavits and to the doctors.

The plaintiff’s medical evidence
42I shall now turn to set out in detail the medical evidence, in a rough chronological order and by commencing with the evidence from treating practitioners upon which the plaintiff relied, and then turning to the medico-legal evidence.
43As will hopefully become clear, most of the relevant evidence is directed principally to the low back injury, and then the right hip injury. There is less relevant medical evidence about the psychological response.
44It seems that the plaintiff was quite psychiatrically unwell at one stage after the incident, although the causal connection with the incident might be up for grabs, but ultimately little turns on that as she has now improved to a point where she has no psychiatric/psychological treatment and takes no medication for any such condition. And, as demonstrated by the video surveillance, she is still able to engage in daily activities. She is in a relationship, and still enjoys time with her family. In fact, the video surveillance records the happy event of buying stuffed toys for her grandchildren. She still spends time in her garden. In what might be a spoiler alert, taken as a whole, the psychological/psychiatric consequences are simply not “severe”.
The treating practitioners
45A few weeks after the incident the plaintiff first sought medical attention. She attended Dr Andrey Butrev at the Knox Medical Centre on 18 February 2019 for low back and right hip pain. Dr Butrev arranged an MRI scan of the lumbar spine and a referral to physiotherapy, as well as a certificate of capacity to put the plaintiff off work.
46The plaintiff then was reviewed at Knox Medical Centre by Dr Amita Roy on 26 February 2019. Dr Roy has provided a report dated 16 July 2019[27] detailing the plaintiff’s attendances and treatment to that point in time. At that time Dr Roy said the plaintiff was still in significant pain and that her prognosis could not be determined in part because she required pain management.
[27]APCB 45.
47Next, the plaintiff came under the care of Dr Benson at the Sunshine City Medical Centre. Dr Benson provided two reports, the first of which is dated 10 December 2020.[28] Those reports set out his attendances on the plaintiff and his opinions. In his report dated 10 December 2020, he diagnosed lumbar spondylosis, facet arthropathy and hypertrophy, gluteal tendinopathy, trochanteric bursitis, adjustment disorder with depression and chronic pain syndrome. In respect to capacity for work, Dr Benson then said:
“Ms Messina’s current capacity for work is that she should alternate sit to stand and avoid sitting for periods longer than one hour and standing longer than one hour. Her walking should be limited to 30 minutes. There should be no bending, squatting, kneeling or lifting of over two kilograms and she should pace herself for her duties. She as far as I am aware remains employed by Grand Cedar aged care facility but is unable to complete a shift following the injury in early 2019. I have reviewed Ms Messina for an unrelated Total Permanent Disablement Claim which was supported by pain specialist Dr Jamie Young and we are both of the opinion that she met the criteria for definition of total and permanent impairment. The restrictions stated render it unlikely that she will be able to be employed in any gainful employment. She is unfit for pre-injury employment and unfit for alternate duties at this time for the reasons already stated.”[29]
[28]APCB 49.
[29]APCB 51.
48More recently in a report dated 7 July 2022, Dr Benson repeated his diagnosis of the plaintiff’s condition and a summary of his treatment since his previous report. He said:
“Upon clinical review it was felt that she most likely suffered from a muscular flare up but an MRI was taken that showed advanced facet arthropathy across multiple lumbar levels bilaterally, this was not a new finding. She was referred to a pain specialist to manage her symptoms.
She had a telephone consultation in June 2022 with a flare up of her hip pain. She was given basic advice and advised to attend for a face to face appointment if it did not settle.
Ms. Messina’s present symptoms and treatment requirements;
Ms Messina presents with significant back pain and reduced exercise tolerance, she also reports significant depression and anxiety related to her chronic pain and other diagnosis. She is regularly pacing her activities takes regular breaks and undertakes daily stretches meditation under use of hot packs. When lying or sitting for an extended [sic]. She needs to position pillows to support her posture and her body and she’s generally quite slow in walking.
Her walking is limited to less than 60 minutes, her sitting tolerance is also less than 60 minutes. She is unable to forward bend and unable to lift anything more than two kilos. She reports significant difficulty in undertaking housework and gardening and her driving is limited to 60 minutes. She also reports general anhedonia as well as social withdrawal lability of mood and insomnia. She has become significantly deconditioned since her injury.
She has completed some patient outcome measures, she scored 50% on the Oswestry score which indicates moderate dysfunction. She scored 64% on the Orebro score which indicates poor prognosis.
She completed a total permanent disablement claim through her superannuation since the last report and this was successful after assessment.
Whether you continue to believe Ms Messina’s employment as a Personal Care Assistant, in particular the repetitive, awkward and heavy lifting and bending throughout the course of employment from about November 2018 and including the incident on 16 January 2019, caused and/or aggravated, accelerated or exacerbated her, low back injury/condition, right hip injury/condition and consequential psychological injury/condition;
Ms Messina’s injuries and symptoms are considered to be caused by and aggravated by her work related activities as a personal assistant. This includes her back and hip injury in addition to her consequential psychological symptoms which have arisen subsequently.
Ms Messina’s current work capacity has been considered on numerous occasions throughout the timeline of this injury. In line with her total permanent disablement assessment she remains unfit for pre injury employment and although there are some functional tolerances that would enable some employment if they were to occur in isolation, the reality is that the combination of these restrictions negate her fitness for any alternate suitable duties.”[30]
[30]APCB 145.

49Mr Vincent Chan is a manipulative physiotherapist who treated the plaintiff. In a letter to Dr Butrev dated 19 February 2019,[31] he described a referral for management of the plaintiff’s low back and right sacroiliac joint pain. He reported marked restriction and pain to the plaintiff’s lumbar spine with paraspinal muscle spasm.
[31]APCB 52.
50Dr Michelle Papandony is a rheumatologist who treated the plaintiff. In a letter dated 6 March 2019,[32] she described the plaintiff presenting with severe back pain. She said her general impression was that the plaintiff had pain due to lumbar canal stenosis and subsequent radiculopathy.
[32]ACPB 53.
51Ms Michelle Lam is a physiotherapist who has also treated the plaintiff. In a letter to Dr Roy dated 11 May 2019,[33] she described a referral to physiotherapy for low back and right sided hip pain. She opined that the plaintiff’s recovery would be a slow process. Her report does not add much else to the current discussion.
[33]ACPB 56.
52Mr Justin Hunt is an orthopaedic surgeon to whom the plaintiff was referred for treatment. In a letter to Dr Roy dated 26 June 2019,[34] Mr Hunt described the results of an MRI scan. He stated the plaintiff’s symptoms to be quite significant and that he did not think she had a work capacity at that time. Mr Hunt apparently explained to the plaintiff that she had symptomatic stenosis at L5/S1 and that was causing her leg symptoms. He offered her the possibility of a lumbar laminectomy at L5-S1.
[34]ACPB 58.
53In a further letter dated 5 August 2019,[35] Mr Hunt said that his working diagnosis was that of symptomatic lumbar spondylosis with possible nerve root entrapment at L5-S1 with associated lateral hip pain and trochanteric bursitis. He recorded his advice that a laminectomy could partially help the plaintiff with her symptoms, but she would most likely have residual back pain and pain over the lateral aspect of her hip. He stated that the trochanteric bursitis may settle down over time. He suggested a conservative approach because at that time it was not clear that surgery would make a tangible difference to her situation.
[35]APCB 60.
54Pausing, Mr Hunt considered the plaintiff’s low back condition to be of some consequence as evidenced by his suggestion of surgery. This is a relevant piece of the evidence because it was not suggested – and is not borne out by the evidence – that her condition has improved since Mr Hunt raised the possibility of surgery.
55Returning to a discussion of the treaters, Dr Jamie Young is a pain and rehabilitation specialist who has treated the plaintiff at the Melbourne Pain Group. He provided a report dated 31 October 2019[36] in which he noted that she had right hip and lower back pain. He set out suggestions for treatment. Dr Young wrote to Dr Benson on 3 February 2020[37] also setting out treatment suggestions. He then provided a further comprehensive report to the plaintiff’s solicitors dated 19 March 2021.[38] In that report he described the plaintiff’s explanation to him that pain was having a significant impact on her life. He diagnosed a chronic pain syndrome of the lower back. He said he did not believe the plaintiff was able to return back to her pre‑injury employment and her fitness for alternative duties “may also be limited due to her significant impact on her physical and mental health from the chronic pain.”[39]
[36]APCB 64.
[37]APCB 66.
[38]APCB 67.
[39]APCB 68.
56Mr Dejan Stojanovic is a physiotherapist at Advanced Health Care St Albans who has treated the plaintiff. He provided a report dated 25 September 2020[40] detailing his initial attendance on the plaintiff on 26 November 2019 as part of a multidisciplinary pain management program. He opined that the plaintiff had been diagnosed with chronic secondary musculoskeletal pain associated with spondylosis of the lumbar spine. He said the plaintiff did not then have the capacity to return to her pre‑injury employment but had limited capacity to return to some form of employment duties with the following restrictions:[41]
·        No prolonged sitting or standing greater than 1 hour.
·        No walking greater than 30 minutes.
·        No bending, squatting or kneeling.
·        No lifting greater than 2kg from floor to waist.
·        No lifting greater than 3kg from waist to shoulder.
·        Alternate sit to stand as needed.
[40]APCB 69.
[41]APCB 70.
57Mr Campbell Hogan is another physiotherapist at Advanced Health Care who has treated the plaintiff. He provided a report dated 22 December 2021.[42] In respect to diagnosis, based on the assessment at Advanced Health Care, Mr Hogan said:
[42]APCB 75.
“The diagnosis following the assessment was:
Chronic primary pain (musculoskeletal-lumbar, musculoskeletal-right lower limb) of moderate-marked severity.
Significant contributing factors included:
·     Clinical features indicative of moderate to marked severity nociplastic pain
·     Deconditioning as determined by over 50% reduction in activity for over 3 months
·     Moderately disturbed sleep due to pain and rumination
·     Moderately asymmetrical gait due to pain and weakness
·     Moderate levels of anxiety based on DASS-21 score
·     Moderate return to work barriers that include physical impairments
·     Significant regional strength deficits in the gluteal region
The treatment recommendation was:

Multi-disciplinary pain management was recommended as per the International Association for the Study of Pain guidelines (attached) and included medical, physiotherapy and psychology sessions in individual and group format.”[43]
[43]APCB 76.
…

“In answer to your specific questions:
a)The diagnosis and history of Patricia Messina’s injury and/or condition.
As noted above, the diagnosis following assessment was chronic primary pain (musculoskeletal-lumbar, musculoskeletal-right lower limb) of moderate-marked severity.
b)The relationship of this injury/condition to Patricia Messina’s employment

Based on the clinical history and examination findings, Ms Messina’s injury is directly related to her employment and was sustained whilst completing her work duties on the 16/1/2019. She reported no previous of related injuries prior to this date.
c) Whether Patricia Messina’s is currently able to work and if so, what sort of work is suitable?

Ms Messina has ongoing significant limitations to her work capacity and would not have a capacity to perform her pre-injury duties. Ms Messina reports that she has been unable to find suitable employment since the injury due to ongoing pain and limited function. Based on clinical history and examination findings at both the time of the assessment and subsequent physiotherapy consultations, Ms Messina presents with the following limited work capacity:
· Walking limited to 60 minutes with 1-2 rest breaks
· Sitting limited to 60 minutes with frequent postural shifts and rotation
· Unable to forward bend, bend, kneel or twist
· Unable to lift more than 2kg repetitively, can lift up to 3kg on occasion
· Driving limited to 30-60 minutes requiring rest breaks

Based on her current capacity as noted above, and her reported home activity pattens, it is unlikely that Ms Messina could sustain suitable duties for a duration greater than 3 hours at time. She would likely require a role where she could frequently rotate through postures to avoid provocation of symptoms. The above capacity is consistent with scores noted on objective patient reported outcome measures (noted above) as follows:
· Oswestry Low Back Pain Disability Scale: 40% indicating a moderate level of pain and activity limitation due to pain problems
· Brief Pain Inventory Interference: 7/10, where a higher number indicates increased pain severity
· Pain Disability Questionnaire: 86/150 indicating a moderate level of disability due to pain
d)If Patricia Messina is unable to work, is this likely to continue indefinitely?

Based on Ms Messina’s current physical and work capacity, as detailed in response C, it is likely that Ms Messina would have significant difficulty finding suitable employment due to her injury and physical limitations. Whilst her current capacity is likely to remain limited in the short term, it is anticipated that she will be able to gradually improve her work capacity over the next 3-6 months as she completes her pain management program. It does, however, seem likely that she will experience a degree of pain and functional limitation for the foreseeable future.”[44]
[44]APCB 77.
58Dr Amutha Samuel is a specialist pain management physician also with Advance Health Care. He provided a report to the plaintiff’s solicitors dated 28 July 2022.[45] In that report, he diagnosed low back injury/condition and right hip injury/condition, together with a concurrent diagnosis of chronic primary pain and chronic secondary musculoskeletal pain. The report details treatment at that point in time. He said that there was an organic component to the plaintiff’s low back and hip conditions. In respect to the low back injury, regarding the plaintiff’s ability to return to work, Dr Samuel said:[46]
“7.    Whether as a consequence of Ms Messina’s Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the physical capacity to perform her pre-injury duties;
i)    If yes, please state whether on a part-time or full-time basis, and if parttime [sic], please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii)   If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this capacity to be permanent, i.e., likely to last for the foreseeable future;
No, as a consequence of Ms Messina’s low back injury on its own and excluding any other physical conditions and/or any psychiatric condition, she does not have the physical capacity to perform her pre-injury duties and I consider this incapacity to be likely to last for the foreseeable future.”
[45]APCB 80.
[46]APCB 83.

59Regarding the right hip injury, Dr Samuel said:[47]
“8.    Whether as a consequence of Ms Messina’s Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the physical capacity to perform her pre-injury duties;
i)    If yes, please state whether on a part-time or full-time basis, and if parttime, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii)   If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e., likely to last for the foreseeable future;
No, as a consequence of Ms Messina’s Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she does not have the physical capacity to perform her pre-injury duties and I consider this incapacity to be likely to last for the foreseeable future.”
[47]Ibid.

60Having considered the evidence from the treating practitioners, and taken as a whole, I make the factual finding that this evidence establishes that the plaintiff has had persisting, chronic low back pain and limitations flowing from the incident, including a referred radicular pain down the right leg. There is also a reference to a right hip injury in some of the treating material, but my assessment is that the low back has been the major problem and focus of treatment. Further, I conclude that any right hip symptoms and impairment is not as significant as the back injury.

The plaintiff’s medico-legal material
61Turning next to medico-legal assessments, Mr Raf Asaid is an orthopaedic surgeon who examined the plaintiff on 24 May 2022 at the request of her solicitors and provided a report.[48] He obtained a history of the incident, the plaintiff’s symptoms, and treatment. He recorded that the plaintiff was smoking marijuana daily. He conducted a physical examination and then answered specific questions as follows[49]:
[48]APCB 97.
[49]APCB 100-103.
“1. The diagnosis of Ms Messina’s
i) Low Back injury/condition; and
ii) Right Hip injury/condition

Aggravation of lumbar spondylosis.
Right hip trochanteric bursitis, iliopsoas bursitis, and gluteus minimus tendinopathy.
She has since developed a chronic pain syndrome.
2.Whether our client’s employment as a Personal Care Assistant, in particular the repetitive, awkward and heavy lifting and bending throughout the course of employment form about November 2018 and including the incident on 16 January 2019, caused and/or aggravated, accelerated or exacerbated her:
i) Low Back injury/condition; and
ii) Right Hip injury/condition

Based on the history provided to me by Ms. Messina, in particular the incident at work that occurred on 16 January 2019, I consider that her low back and right hip conditions are work related.
3.Due to the peculiar nature of the Serious Injury test under the Accident Compensation Act, there is a requirement that there be analysis of physiological and psychological factors. Accordingly, in our opinion, is there an organic component to my client’s pain with respect to her:
i) Low Back injury/condition; and
ii) Right Hip injury/condition

I believe there is an organic component to Ms Messina’s pain and this has been demonstrated on the imaging that has been performed on her lower back and right hip.
…
6.Whether as a consequence of Ms Messina’s Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she is likely to be precluded or restricted in relation to employment or activities involving:
a) bending, lifting, twisting or stooping;
b) kneeling, squatting, or crouching;
c) prolonged sitting, walking, or standing;
d) walking up inclines or down declines;
e) walking over uneven ground
f) using stairs, steps or ladders;
g) any other physical functions and motions.
and if so:
· The extent of the incapacity; and,
· Whether the incapacity will continue for the foreseeable future

It is difficult to separate the consequence of Ms Messina’s lower back injury and right hip injury as similar activities aggravate both the pain in her lower back and right hip. There is also likely a great deal of overlap between the symptoms in her right hip and the radiation of pain from her lower back condition. Her current condition restricts her ability to perform all the above mentioned activities.
7.Whether as a consequence of Ms Messina’s Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the physical capacity to perform her pre-injury duties;
i) If yes, please state whether on a part-time or full-time basis, and if part-time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii) If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
Ms Messina was previously employed in a full-time role as a Personal Care Assistant. She reports that her role was quite physical and labour-intensive. There were two personal care assistants and one nurse per shift, and they were required to attend to up to 74 residents. She was involved in all the personal care duties for the residents, including showering, dressing, feeding, and patient transfers. She was often required to perform tasks that involved repetitive bending, lifting, and twisting. Given the nature of her pre-injury employment, I do not believe that she has the capacity to perform her pre-injury duties as a result of her low back injury.
Given the chronicity of her condition, I consider that this incapacity will continue for the foreseeable future.
…
9.Whether as a consequence of Ms Messina’s Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the capacity to perform suitable employment:
i) If yes, please state whether on a part-time or full-time basis, and if part-time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii) If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
I do not realistically believe that Ms Messina has the capacity to perform suitable employment. She has developed a chronic pain condition, and he current described levels of pain and disability would restrict her ability to perform even sedentary type roles.”

62Next, Dr Richard Sullivan is a pain specialist who examined the plaintiff for medico-legal purposes on 31 May 2022 and provided a report to her solicitors.[50] Dr Sullivan also obtained a relevant history, conducted a clinical examination, and reviewed available radiology. He was then asked specific questions which he answered as follows:
“1.    The diagnosis of Ms Messina’s
[50]APCB 105.
i)    Low Back injury/condition; and
The diagnosis is aggravation of lumbar spondylosis and posttraumatic chronic pain condition as noted above.
ii)   Right Hip injury/condition
The diagnosis is aggravation of trochanteric bursitis and/or iliopsoas tendinosis and chronic pain condition as noted above.
2. Whether our client’s employment as a Personal Care Assistant, in particular the repetitive, awkward and heavy lifting and bending throughout the course of employment form about November 2018 and including the incident on 16 January 2019, caused and/or aggravated or exacerbated her;
i)    Low Back injury/condition; and
ii)   Right Hip injury/condition
Your client’s employment has been a significant contributing factor to her lower back injury and to her right hip injury.
…
5. Whether as a consequence for Ms Messina’s Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she is likely to be precluded or restricted in relation to employment or activities involving:
a)   pushing, pulling or lifting
b) repetitive pushing, pulling or lifting
c)   bending, reaching, twisting or stooping
d) prolonged sitting, standing or walking
e)   any other physical functions or motions
and if so:
·   The extent of the incapacity; and,
·   Whether the incapacity will continue for the foreseeable future;
Your client has functional limitations brought out by her lower back injury resulting in a push, pull and lift capacity of around 3-5 kg and repetitive push, pull and lift capacity of approximately 2-3 kg, an inability to significantly bend, reach, twist or stoop nor repetitively bend, reach, twist or stoop without aggravation of her pain and limitations pertaining to standing and walking of approximately 15-20 minutes. Further functional limitations brought about by her lower back pain have been considered in the report above.
6. Whether as a consequence of Ms Messina’s Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she is likely to be precluded or restricted in relation to employment or activities involving:
a)   bending, lifting, twisting or stooping;
b) kneeling, squatting, or crouching;
c)   prolonged sitting, walking, or standing
d) walking up inclines or down declines;
e)   walking over uneven ground
f)   using stairs, steps or ladders;
g) any other physical functions and motions.
and if so:
·   The extent of the incapacity; and,
·   Whether the incapacity will continue for the foreseeable future;
Consequent to the chronic pain condition following injury to the region of her right hip your client has impaired capacity for kneeling, squatting and crouching, an inability to maintain sitting and standing for longer than 15-20 minutes at a time, aggravation of right hip pain when walking over uneven grounds and up and down inclines for longer than approximately 5-10 minutes, aggravation of pain when ascending stairs and ladders and other functional limitations that have been considered in the report above.
7. Whether as a consequence of Ms Messina’s Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the physical capacity to perform her pre-injury duties;
i.   If yes, please state whether on a part-time or full-time basis, and if part-time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii. If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
Regarding the lower back injury in isolation and excluding other physical conditions and psychiatric conditions your client cannot reasonably return to her preinjury employment as a patient care assistant in a full and functional fashion neither in a part-time or full-time capacity now or into the foreseeable future.
8. Whether as a consequence of Ms Messina’s Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the physical capacity to perform her pre-injury duties;
i.   If yes, please state whether on a part-time or full-time basis, and if part-time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii. If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
As a consequence of your client’s right hip injury in isolation and excluding any other physical conditions or psychiatric conditions your client cannot reasonably return to her preinjury employment as a patient care assistant in a full and functional fashion be that on a part-time basis or full-time basis now and into the foreseeable future.
9. Whether as a consequence of Ms Messina’s Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the capacity to perform suitable employment;
i.   If yes, please state whether on a part-time or full-time basis, and if part-time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii. If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
Consequent to your client’s lower back injury in isolation, she has theoretical capacity to perform entirely sedentary duties on a part-time basis reasonably to a maximum of approximately 10-12 hours per week with restrictions pertaining to sitting, standing, walking, driving, lifting, bending, squatting, and stooping as noted in the answer to question 5 above. Such work capacity and associated restrictions would be considered permanent.
10. Whether as a consequence of Ms Messina’s Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the capacity to perform suitable employment;
i.   If yes, please state whether on a part-time or full-time basis, and if part-time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii. If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
Your client has capacity to engage in only sedentary work of a part-time basis to a maximum of around 10-12 hours per week consequent to her right hip injury in isolation with such employment she would be restricted with regard to her capacity for bending, twisting, stooping kneeling, squatting, crouching, sitting, walking, standing and ambulating up or down declines or on uneven ground as per the answer to question 6 above and such limitations would be considered permanent.”

63Dr Sullivan then provided a further report dated 21 July 2022,[51] but that report does not add much to the discussion and essentially repeats his earlier opinions.
[51]APCB 147.
64Next, moving from the physical injuries back to the psychological/psychiatric injury, the plaintiff was examined by Dr Leon Turnbull, consultant psychiatrist, on 16 June 2022 and he provided a report to the plaintiff’s solicitors dated 20 June 2022.[52] He diagnosed the plaintiff as suffering a Major Depressive Disorder and said that the low back condition was the main driver of her psychiatric state. He said that psychiatrically the plaintiff was incapacitated for her pre‑injury duties. In respect to clerical duties, he said that he doubted the plaintiff could do that although perhaps “she could do it here and there in sort of a patchwork fashion, but in terms of sustaining a clerical role, I am not sure how she could do that with the tearfulness and the anxiety and the moodiness and the lack of mental organization”.[53]
[52]APCB 113.
[53]APCB 116.
65Dr Turnbull’s report is clear and considered in the opinion and conclusions expressed by him, which I take it in to account. But, despite his opinion and conclusions, I do not consider that the plaintiff’s psychiatric injury meets the test of “severe”. I have already set out what she retains from a psychiatric perspective and in my view, what she retains outweighs what she has lost, such that any psychiatric condition is not “severe” and is not productive of a “very considerable” consequence either in respect to pain and suffering or pecuniary loss.
66Returning to physical injury and to complete the review of the plaintiff’s medico-legal evidence, she was seen by Dr Kilner Brasier, occupational and environmental specialist physician, on 30 June 2022 and he then provided a report to the plaintiff’s solicitors dated 27 July 2022.[54] In that report, Dr Brasier set out the history obtained by him, the information considered by him and examination findings. Lumbar spine movement was globally restricted, and the plaintiff was tender over the paravertebral muscles in the lumbar spine, which I interpret to be a genuine organic examination finding related to injury to the lumbar spine.[55] In respect to current work capacity, Dr Brasier said the plaintiff had no capacity for her pre-injury duties as a personal care attendant. He diagnosed aggravation of lumbar spondylosis, with some sciatic pain on the right. He said there was a possibility of some chronic right-sided L5 nerve root irritation. In addition, he said the plaintiff suffered from chronic intractable trochanteric bursitis of the right hip.[56]
[54]APCB 118.
[55]APCB 121.
[56]APCB 123.
67In respect to capacity for employment, Dr Brasier was asked several specific questions, which he answered as follows:
“…
5. Whether as a consequence of [the plaintiff’s] Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she is likely to be precluded or restricted in relation to employment or activities involving:
a) pushing, pulling or lifting
b) repetitive pushing, pulling or lifting
c) bending, reaching, twisting or stooping
d) prolonged sitting, standing or walking
e) any other physical functions or motions
and if so:
• The extent of the incapacity; and,
• Whether the incapacity will continue for the foreseeable future;

In my opinion as a consequence of [the plaintiff’s] lumbar spine injury/condition on its own, and excluding any other physical conditions and/or psychiatric condition, she is restricted in relation to employment or activities involving the following:
- pushing, pulling or lifting;
- repetitive bending or twisting;
- repetitive pushing, pulling or lifting;
- bending, reaching, twisting or stooping; and
- prolonged sitting, standing or walking.

6. Whether as a consequence of [the plaintiff’s] Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she is likely to be precluded or restricted in relation to employment or activities involving:
a) bending, lifting, twisting or stooping;
b) kneeling, squatting, or crouching;
c) prolonged sitting, walking, or standing;
d) walking up inclines or down declines;
e) walking over uneven ground
f) using stairs, steps or ladders;
g) any other physical functions and motions.
and if so:
• The extent of the incapacity; and,
• Whether the incapacity will continue for the foreseeable future;

In my opinion as a consequence of [the plaintiff’s] right hip injury/condition on its own, and excluding any other physical conditions and/or any psychiatric condition, she is likely to be restricted in relation to employment or activities involving the following:
- kneeling, squatting or crouching;
- prolonged sitting, walking or standing;
- walking up inclines or down declines;
- walking over uneven ground;
- repetitive use of stairs or steps; and
- any use of step ladders or ladders.
7. Whether as a consequence of [the plaintiff’s] Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the physical capacity to perform her pre-injury duties;
i) If yes, please state whether on a part-time or full-time basis, and if part time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii) If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
In my opinion as a consequence of [the plaintiff’s] lower back injury/condition on its own, and excluding any other physical conditions and/or any psychiatric condition, she has no physical work capacity to perform her preinjury duties. The inherent requirements of her preinjury duties require her to undertake a number of body positions which she is unable to undertake because of her low back injury/condition, specifically heavy pushing and pulling, repetitive bending, twisting, constant use of stairs and steps. In my opinion these incapacities are permanent and likely to last for the foreseeable future.
8. Whether as a consequence of [the plaintiff’s] Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the physical capacity to perform her pre-injury duties;
i) If yes, please state whether on a part-time or full-time basis, and if part time, please state the maximum number of hours she could work, as well as the specific physical limitations on her working more hours;
ii) If no, please outline the specific physical limitations that would prevent her performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future;
In my opinion as a consequence of [the plaintiff’s] right hip injury/condition on its own, and excluding any other physical conditions and/or any psychiatric condition, she has no physical work capacity to perform her preinjury duties. The end inherent requirements of her preinjury duties include squatting, kneeling and crouching which she has no capacity for. In my opinion this incapacity is permanent and likely to last for the foreseeable future.

9. Whether as a consequence of [the plaintiff’s] Low Back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the capacity to perform suitable employment:
i) If yes, please state whether on a part-time or full-time basis, and if part time, please state the maximum number of hours she could work as well as the specific limitations on her working more hours;
ii) If no, please outline the specific limitations that would prevent her from performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future.
In my opinion [the plaintiff] as a consequence of her low back injury/condition on its own she has no work capacity to perform suitable employment. Please refer to my comments in response to Question 5. In my opinion this incapacity is permanent and likely to last for the foreseeable future.
10. Whether as a consequence of [the plaintiff’s] Right Hip injury on its own, and excluding any other physical conditions and/or any psychiatric condition, she has the capacity to perform suitable employment:
i) If yes, please state whether on a part-time or full-time basis, and if part time, please state the maximum number of hours she could work as well as the specific limitations on her working more hours;
ii)If no, please outline the specific limitations that would prevent her from performing these duties, as well as whether you consider this incapacity to be permanent, i.e. likely to last for the foreseeable future.
In my opinion as a consequence of [the plaintiff’s] right hip injury on its own he has no work capacity to perform suitable employment. Please refer to my comments in response to Question 6. In my opinion this incapacity is permanent and likely to last for the foreseeable future.”[57]
[57]APCB 124-126.

The defendant’s medico-legal evidence
68Dealing with the defendant’s medico-legal evidence in sequential order by reference to the Defendant’s Amended Court Book index, the plaintiff was seen by Dr Timothy Entwisle, consultant psychiatrist, at the request of the defendant’s solicitors on 24 November 2020. In a report dated 1 December 2020,[58] Dr Entwisle concluded that the plaintiff presented with an adjustment disorder with depressed and anxious mood. He opined that the plaintiff could not return to work from a psychiatric perspective, but he thought she would develop a work capacity within six months with appropriate treatment. He also noted other factors contributing to the plaintiff’s psychosocial situation.[59]
[58]Defendant’s Amended Court Book (“DACB”) 48.
[59]DACB 51-52.
69In a further report dated 4 January 2021, Dr Entwisle was asked to comment on a report from Dr Clayton Thomas dated 8 December 2020, and a Certificate of Capacity from Dr Benson. Having done so, Dr Entwisle opined that the plaintiff had a current work capacity.[60] His report supports my conclusion that the plaintiff’s psychiatric condition is not “serious”.
[60]DACB 53.
70Dr Clayton Thomas is a consultant in rehabilitation and pain medicine, who examined the plaintiff at the request of the defendant’s solicitors. In a report dated 8 December 2020,[61] he recorded his findings on clinical examination, the history obtained from the plaintiff, and his review of relevant documents. He concluded that, overall, she was suffering from symptomatic spondylosis.[62] He noted persistent right-sided lower back pain radiating into the buttock, which he was not convinced implicated the right hip muscles. As he said, “[r]eferred pain into the buttock is common from the back”,[63] which supports my conclusion that the back injury (and referred leg pain) is the plaintiff’s main physical injury.
[61]DACB 55.
[62]DACB 57.
[63]DACB 58.
71Dr Thomas was then asked specific questions which he answered in his report and in which he confirmed his diagnosis of symptomatic spondylosis of the lower back, predominantly right sided, with referred pain into the right buttock, without any evidence of radiculopathy. He said the plaintiff could not return to her pre-injury work duties and hours. He also said that she could not return to modified duties or hours. However, seemingly in conflict with that opinion, he then went on to say:
“The [plaintiff] does have a current work capacity. She has lower backache on the right-hand side. She is limited in her ability to perform work through various levels. She has limited ability to work in a semisedentary or sedentary position. She has previously worked in such a position working at a pawn brokers for a number of years. The location of residence is not preventing her from gaining work options. She is able to drive a vehicle. She is able to access an office. She has access and availability of occupational and rehabilitation services. The type of semisedentary work that she would be able to perform is available generally in the marketplace.
Based on these criteria she does have capacity for suitable employment.”[64]
[64]Ibid.

72Dr Thomas was asked to consider a vocational assessment report of 5 October 2020. That report is not in evidence in this proceeding. Nevertheless, he commented on various employment options apparently set out in the report. He opined the plaintiff could do aspects of work as a sales assistant with gifts and crafts. He said the plaintiff could do sales assistant work involving jewellery and pharmacy, and as a general clerk or administration officer. With an appropriate workstation, he said the plaintiff could undertake work as an information officer or customer services officer. He opined the plaintiff could physically cope with work as a medical receptionist, but without previous experience, would be unlikely to gain such work.
73From my own experience, Dr Thomas is a well-regarded consultant in rehabilitation and pain medicine, and I respect his opinion. However, as already mentioned, there is seemingly a conflict between his opinions that the plaintiff cannot return to her pre-injury work duties or hours, or modified duties or hours, and his opinion that the plaintiff does have a residual work capacity. There is no path of reasoning in his report to adequately explain that apparent conflict.
74As mentioned, the Vocational Assessment Report that Dr Thomas commented on is not in evidence, and without specific evidence of the jobs discussed by him, in my view, the level of physical activity required in the jobs discussed by him would be similar to the level of physical activity required for modified duties with the employer which, or course, he excluded. Accordingly, I do not accept his opinion about the various jobs he identified as “suitable employment”. Of course, I can accept other opinions expressed n his report. I accept his diagnosis and comments regarding the plaintiff’s compensable back injury, and leg pain, which otherwise support her claim for “serious injury” from the back injury.
75Next, Dr Joseph Slesenger is an occupational physician who examined the plaintiff at the request of the solicitors for the defendant, and provided a report dated 28 June 2022.[65] He also reviewed considerable documentation, obtained a history from the plaintiff, and conducted a physical examination. He described the plaintiff as interacting well and appearing to have good insight into her impairment.[66] In his report, he noted a restriction of range of movement in the lumbosacral spine. He summarised the situation as the plaintiff presenting with a history of lower back pain and right gluteal pain, together with radiating symptoms into the right leg, subsequent to an injury sustained during the course of her employment. He recorded the plaintiff describing residual pain in the lower back that was moderate to severe, radiating into the right gluteal region over the lateral aspect of the right leg below the knee. The pain was described as dull and stabbing in nature and aggravated by activity.[67]
[65]DACB 61.
[66]DACB 66.
[67]DACB 72.
76Dr Slesenger said he was satisfied that the plaintiff had suffered a lumbar spine issue, described by him as a soft-tissue injury, aggravation of degenerative disease with right-leg radiating features and evidence of sacroiliac joint dysfunction. About the right hip, he said that was more difficult to assess, but was satisfied there may have been an initial soft-tissue injury to the right hip, now resolved.[68]
[68]Ibid.
77Dr Slesenger described a functional element to the plaintiff’s presentation, but, equally, he did not describe such functional presentation as being so florid as to prevent an assessment within his area of expertise.
78Dr Slesenger was asked about the plaintiff’s capacity for work and he said:
“I am of the opinion that [the plaintiff] does not have the capacity for preinjury duties as the job demands lie outside her capacity limits. Nevertheless, I am of the opinion that she retains capacity for work with restrictions, namely:
● No push, pull, carry or lift over 5 kg.
● No repetitive bending or twisting.
● No prolonged static postures.
● No exposure to whole body vibration.

I am of the opinion that she could return to work, performing alternative duties with the restrictions outlined above.
…
With regard to proposed duties, I note the following:
●    Aged or Disabled Carer: I advise against [the plaintiff] returning to work in this role as the job demands are likely to lie outside her capacity limits.
●    Sales Assistant - Gifts and/or Crafts and/or Flowers: I advise against her returning to work in this role as the job demands are likely to lie outside her capacity limits.
●    Sales Assistant - Jewellery and/or Watches and/or Clocks: I advise against her returning to work in this role as the job demands are likely to lie outside her capacity limits.
●    Sales Assistant - Pharmacy and Health Remedies: I advise against her returning to work in this role as the job demands are likely to lie outside her capacity limits.
●    Information Officer/Customer Service Officer: I am of the opinion that she could return to work in this role with the restrictions outlined above.
●    General Clerk/Administration Officer: I am of the opinion that she could return to work in this role with the restrictions outlined above.
●    Medical Receptionist: I am of the opinion that she could return to work in this role with the restrictions outlined above although, in my experience, there are tasks underneath this job title that could lie outside her capacity limits. I recommend a job specific worksite assessment.”[69]
[69]DACB 74-75.

79Dr Slesenger was then asked to comment on a vocational assessment and labour market analysis report by CoWork Pty Ltd (“CoWork”) dated 20 June 2022.[70] In a supplementary report dated 6 July 2022[71] Dr Slesenger repeated much of his earlier report. Then, regarding the proposed duties as set out in the CoWork report, he said:
[70]        The CoWork report was tendered by the defendant.
[71]DACB 77.
“1.   Do you consider the [plaintiff] has the capacity to undertake the duties identified?
I have been provided with a vocational assessment report, noting recommendations for [the plaintiff] to return to work in the following roles:
●   Administrative Officer (Healthcare Setting): I am of the opinion that she could return to work in this role with the restrictions outlined above.
● Medical Receptionist: as noted in my previous report, there are tasks underneath this job title that could lie outside her capacity limits. I recommend a job specific worksite assessment.
●   Call Centre Operator: I am of the opinion that she could return to work in this role with the restrictions outlined above.
●   Retail Sales (Clothing): I advise against her returning to work in this role as the job demands lie outside her capacity limits.
● Nursery Hand/Retail Nursery: I advise against her returning to work in this role as the job demands lie outside her capacity limits.
● Spanish/English Interpreter: I am of the opinion that she could return to work in this role with the restrictions outlined above although she would require retraining.
2. If the [plaintiff] can undertake the above tasks, for how many hours do you consider she will be able to undertake those tasks?
I recommend that she returns to work 4 hours a day, 4 days a week, increasing to pre-injury hours over 6-8 weeks.
3.Do you consider that she will be able to undertake these tasks on a full-time or close to full-time basis within the next 6, 12 or 18 months (if so, please identify the likely time frame, noting that you do not need to say with certainty but rather whether it is more likely than not?).
This is addressed above.”[72]
[72]DACB 82.

80Finally, returning to the psychiatric condition, Associate Professor Peter Doherty is a consultant psychiatrist who examined the plaintiff and provided a report to the defendant solicitors, dated 30 June 2022.[73] He formed the view that the appropriate psychiatric diagnosis, at the most, was of an adjustment disorder with depressed and anxious mood. But he said that the psychiatric condition, as diagnosed, did not incapacitate the plaintiff for work. He said there were no restrictions from a psychiatric point of view that should be recommended or imposed, and that she did not need psychiatric treatment.[74]
[73]DACB 83.
[74]DACB 92.
81In short, Associate Professor Doherty report supports the conclusion already expressed, that the plaintiff has failed to establish a “serious injury” by reference to any claimed psychiatric condition.
Marijuana use
82The defendant submitted that the plaintiff’s daily cannabis use was significant because it was not prescribed, and because her general practitioner did not know about it.[75] The defendant submitted that it affected her motivation to do anything else.[76] It was put that she was effectively self-medicating, and no doctor knows about it.
[75]T 52, L 12-15.
[76]T 52, L 22-23.
83Dealing with the last point first, several of the medico-legal examiners were aware of the plaintiff’s use of marijuana.[77] None of them implicate it as compromising the plaintiff’s motivation. Leaving to one side whether smoking marijuana is a sensible way of managing pain, there seems to be a general acceptance that the use of marijuana is the way in which the plaintiff is seeking to manage her pain. Next, the plaintiff gave evidence of her use of marijuana and how, when she needs to do something, such as drive or attend a medical appointment, she limits her use of marijuana. The impression I gained from her evidence was that it is mostly used by her on days when she has nothing planned, or else of an evening, to enable her to get to sleep. I reject the submission that the plaintiff’s use of marijuana is either unrelated to her pain or is impacting her motivation to the extent where she has not made an effort to rehabilitate herself or to retrain.
[77]APCB 99, 106, 114; DACB 66, 209.

Disentangling
84Neither party made specific submissions directed to the issue of disentangling,[78] but it appears incumbent upon me to deal with the issue, given some of the evidence.
[78]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [18]-[24].
85As mentioned, during her oral evidence the plaintiff did not specifically isolate what injury she was referring to when describing pain. However, in my view, when the whole of the evidence is considered, no disentangling arises because:
(i)first, the emphasis in the plaintiff’s affidavits is of back pain with referred pain into her leg;
(ii)second, that emphasis continues through the medical material, particularly the treating material from Mr Hunt and, more recently, Dr Slesenger;
(iii)third, and importantly, this is not a situation in which the medical practitioners have been unable to isolate the consequences from the claimed lower back injury, from the consequences from the claimed right hip injury. In fact, the situation is the reverse. Medical practitioners have been asked to consider those conditions separately and opinions expressed on that basis; and
(iv)fourth, Dr Thomas and Dr Slesenger both considered the low back injury to be productive of referred pain and for that to be the explanation for ongoing hip/leg symptoms and not any discrete hip injury. Those opinions, which I accept on this point, fit with the focus of the treating material and Mr Hunt’s opinion regarding possible back surgery.

Therefore, I am satisfied that I have sufficient evidence in respect to the lower back, and the right hip, to enable the required analysis of impairment consequences separately from each of those physical conditions.

Conclusions regarding pain and suffering
86Earlier, I set out the plaintiff’s description of her lower back pain and her restrictions. I conclude that she has ongoing, chronic and fluctuating lower back pain, together with referred pain through the right buttock and down the right leg, severe enough so that surgery was mooted. This, in combination with her inability to engage in a range of day-to-day activity and employment, produces impairment consequences that can fairly be described as a “very considerable” pain and suffering consequence.
87Having so concluded, to some extent, it is unnecessary to move to consider the right hip, but, in isolation, I am satisfied that the plaintiff has ongoing right hip symptoms, but I am not convinced that those symptoms are related to a discrete injury by way of trochanteric bursitis. Regardless, even if I accept there is a discrete right hip injury, at best I consider that it might be fairly described as producing impairment consequences that are “marked” or even “significant”, but I am not satisfied that it can fairly be described as “very considerable”. Therefore, the claim for the right hip is not made out.
88For completeness, I have already indicated the claim based on a psychiatric injury fails.

Conclusions regarding pecuniary loss
89Turning, then, to the real issue in the case, namely, whether the plaintiff has established the requisite loss to demonstrate a “very considerable” pecuniary loss consequence from the back injury. Based on the evidence and as I shall now summarise, I am satisfied that she has.
90I accept the medical evidence, in consideration of the plaintiff’s own evidence, from Mr Asaid, Dr Sullivan and Dr Brasier to the effect that the plaintiff is now unemployable. I accept that Dr Benson certified the plaintiff as having an “after injury” capacity with restrictions, but as explained by him in his recent report, that is a theoretical capacity and not a real-world assessment. I have already set out why I do not accept the opinion from Dr Thomas about “after injury” work capacity.
91That leaves the opinions from Dr Slesenger regarding work capacity. Critically, Dr Slesenger placed physical restrictions on the plaintiff’s “after injury” employment capacity, by reason of the claimed lower back injury. He is obviously optimistic, where he opined that the plaintiff could return to some part-time work and, thereafter, build up her hours to undertake the jobs on a full-time basis that he deemed suitable by reference to the CoWork report.
92But, in my view, Dr Slesenger has taken an overly optimistic view of the plaintiff’s residual capacity for work. I accept that the plaintiff’s evidence of ongoing fluctuating pain which is unpredictable and would make her attendance at work unpredictable. In my analysis of the evidence, when her ongoing back pain and impairment is considered, consistent with her restrictions for daily activity, she has no capacity “after injury” for “suitable employment”.

93But, alternatively if I was to conclude that the plaintiff had a residual capacity for employment, in my view, such capacity would, at best, be for no more than four hours per day, four days per week, as suggested by Dr Slesenger, with the caveat that I do not accept the evidence supports his opinion that she would successfully transition to full-time employment.
94That brings me to the jobs set out in the CoWork report. At Section 4 of the report, there are set out several jobs said to be “suitable employment”, including administrative officer, medical receptionist, call centre operator, retail sales assistant, nursery hand and Spanish/English interpreter. The highest hourly rate for any of those jobs is $38.97 for an administrative officer/healthcare setting/hospital admission,[79] and $39.02 as a Spanish/English interpreter (paraprofessional).[80] If the plaintiff was capable “after injury” of undertaking either of those jobs for sixteen hours per week then, as she conceded, she does not have the requisite loss for the purpose of the statutory formula. On the other hand, if she was allowed the lower hourly rates in the CoWork report for either a medical receptionist, call centre operator, retail sales assistant or nursery hand, then at sixteen hours a week and based on the rates in the CoWork report, she would have the requisite loss of forty per centum or more.
[79]DACB 228.
[80]DACB 234.
95In undertaking an assessment as to the plaintiff’s “after injury” capacity for employment, it is relevant that I am conducting an assessment for the purposes of a gateway provision and not an assessment for damages. To that extent, an holistic approach can be taken to the evidence, particularly when it comes to selecting the number of hours or the hourly rate for such work.
96Dealing firstly, then, with the job of an administrative officer (healthcare setting/hospital admissions), in my view, the hourly rate identified in the CoWork report does not fairly reflect the plaintiff’s “after injury” earning capacity. It is described as requiring a medium level of digital literacy and knowledge of various software, of which there is no evidence that the plaintiff has such specific skills. Further, the CoWork report records the average earnings of all full-time workers in that role, which, in my view, is an inappropriate approach to determine an hourly rate for the plaintiff, where she has no experience and no specific skills for that job and so is likely to obtain employment at a rate below average earnings, even if she could obtain it. I also consider that she is likely to achieve less than average earnings, in circumstances where Dr Slesenger was prepared to endorse that job, but with physical restrictions[81] and that may well impact the level of earnings and range of positions open to her. Of course, broadly in respect to medical receptionist, Dr Slesenger noted that there might be tasks outside her capacity limits which, equally, may translate across to administrative work in a healthcare setting. Accordingly, I reject the hourly rate in the CoWork report as an appropriate “after injury” rate.
[81]DACB 81.
97Next, dealing with the identified role as a Spanish/English interpreter, having observed the plaintiff in the witness box, I doubt very much that she has the education and aptitude for such a job. The job identified by CoWork required an Advanced Diploma or a higher level of education, in circumstances where the plaintiff does not have those qualifications, and it was not put to her that she could now achieve them. It also requires a level of digital literacy and, again, the hourly rate is expressed as an average figure, in circumstances where it seems to me the plaintiff would be unlikely to achieve average earnings because of her physical restrictions, age and lack of experience in that role, even if she could obtain the necessary tertiary qualification. Accordingly, I also reject that hourly rate as an appropriate “after injury” rate.
98If I was called upon to do so, I consider that light retail work, where the plaintiff had some freedom to vary her posture and was not required to perform lifting beyond the restrictions set out in Dr Slesenger’s report, would be “suitable employment” for the plaintiff. I note the gross hourly rate of $25.31 provided in the CoWork report for retail sales assistant (clothing, cosmetics, jewellery). In my view, that figure would most fairly reflect the plaintiff’s “after injury” earning capacity. If she could undertake sixteen hours of work as a retail sales assistant at that hourly rate of $25.31, she would satisfy the statutory formula.
99I conclude that the plaintiff realistically has no “after injury” earning capacity, but at best, it would be for no more than sixteen hours per week in the retail sales role at $25.31 gross per hour.
100Therefore, she has demonstrated the requisite 40 per cent loss so as to satisfy the statutory formula regarding pecuniary loss.

Conclusion
101For the reasons given, leave is granted to the plaintiff to commence a proceeding for both pain and suffering and pecuniary loss damages.
102I shall hear from the parties as to the question of costs and ancillary orders.
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[2022] VCC 1731

19 October 2022