Meyers v Salford Park Community Village and WorkSafe Victoria
[2011] VCC 1064
•12 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04297
| KIM ELLEN MEYERS | Plaintiff |
| v | |
| SALFORD PARK COMMUNITY VILLAGE | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2, 3 and 4 August 2011 |
| DATE OF JUDGMENT: | 12 August 2011 |
| CASE MAY BE CITED AS: | Meyers v Salford Park Community Village & WorkSafe Victoria |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1064 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – low-back injury – pain and suffering – whether the plaintiff had established a loss of earning capacity of more than 40 per cent.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle with | All States Legal Co Pty Ltd |
| Mr J Valiotis | ||
| For the Defendants | Mr P D Elliott QC with | Hall & Wilcox |
| Ms R L Kaye | ||
| HIS HONOUR: |
Preliminary
1 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) in respect of injury suffered by the plaintiff in the course of her employment with the first defendant on 3 November 2003.
2 The body function alleged to be lost or impaired is that of the lumbar spine.
3 The application is thus brought under subsection (a) of the definition of “serious injury” contained in s.93(17) of the Act.
4 Leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must establish that the consequences emanating from the loss or impairment of the identified body function are at least “very considerable” and more than “significant” or “marked”.
6 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
7 Further, in order to be satisfied that the plaintiff has suffered the required loss of earning capacity, she must prove, as prescribed in s.134AB(38)(e) and (f) of the Act that, as a result of the injury, she has suffered a loss of earning capacity of forty per cent or more and that after the date of this hearing, will continue permanently to suffer such loss of earning capacity. I am required to compare the gross income from personal exertion (expressed at an annual rate) which the plaintiff is earning, or is capable of earning, in suitable employment at the present time with the gross income that the plaintiff was earning, or was capable of earning, from personal exertion or would have earned, or would have been capable of earning, from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred.
8 Section 134AB(38)(g) of the Act provides that the plaintiff does not establish the loss of earning capacity required where she has, or would have after rehabilitation or re-training, a capacity for any employment, including alternative employment, which, if exercised, would result in the plaintiff earning more than sixty per cent of gross income from personal exertion as determined in accordance with paragraph (f) of the Act had the injury not occurred. The sub-section requires me to take into account her capacity for suitable employment after the injury and, where applicable, the reasonableness of the plaintiff’s attempts to participate in rehabilitation or re- training.
9 Affidavits sworn by the plaintiff on 2 March 2010 and 19 July 2011 were tendered on her behalf. In addition, she gave evidence at the hearing and was cross-examined.
10 Medical reports were tendered on behalf of the plaintiff from her general practitioner, Dr Grant Connoley; treating orthopaedic surgeon, Mr David de la Harpe; a musculo-skeletal physician, Dr Robert Gassin; a musculo-skeletal physician, Dr Paul Verrills; a consultant physician in rehabilitation medicine, Dr Kirily Adam; a consultant neurosurgeon, Associate Professor Richard Bittar; and an orthopaedic surgeon, Mr Russell Miller.
11 In addition, the plaintiff tendered a number of radiological reports concerning CT and MRI scans of her lumbar spine.
12 On behalf of the defendants, medical reports were tendered from an occupational physician, Dr Malcolm Brown; an orthopaedic surgeon, Mr Michael Dooley; an occupational physician, Dr David Barton; an orthopaedic surgeon, Mr Rodney Simm; a consultant physician, Dr Ron Scholes; a consultant psychiatrist, Dr Gregory White; and an occupational physician, Dr P D Clark.
Background
13 The plaintiff was born on 20 May 1966 and is presently aged forty-five. She attended Swinburne Technical High School and left school part way through her Year 10 in about 1981.
14 In the ensuing years, she worked in a number of different jobs, mainly as a sewing machinist and as a process worker. In about 1998, she returned to study at Swinburne TAFE for approximately three years, obtaining her general Certificate and Division 2 nursing qualification. She performed volunteer work with the first defendant from 2001, and in March 2002, commenced a nursing traineeship with the first defendant which she completed in 2004.
15 Before the incident in which she was injured in November 2003, there is no suggestion that the plaintiff suffered any back injury or back symptoms of any significance.
16 She has, for some years, suffered from a hearing deficiency and commenced using a hearing aid approximately fifteen years ago. This is of some significance and I shall return to it later in these reasons.
The Incident
17 On 9 November 2003, during the course of her employment with the first defendant as a trainee nurse, the plaintiff slipped on a wet floor in the nurses’ locker room. She landed on her buttocks and immediately felt pain in her buttocks and low-back. She rested for some time and reported the incident to another nurse on duty. The plaintiff’s husband was called to pick her up. She was taken to Box Hill Hospital and admitted overnight. She consulted her general practitioner, Dr Connoley, on 14 November 2003 and was certified unfit for work for approximately four weeks from that time.
The Injury and Consequences of It
18 The plaintiff returned to work with the first defendant but continued to suffer from low-back pain, radiating to both legs and buttocks. She was prescribed analgesics by Dr Connoley and referred for a CT scan. Analgesia has included powerful prescription analgesics, including Tramal, Panadeine Forte, slow-release paracetamol and morphine in the form of Norspan patches.
19 Following the plaintiff’s return to work, she was forced to reduce her hours of work with the first defendant. In early 2005, she obtained some part-time casual employment with the Mitcham Private Hospital in order to make up the hours and income lost as a consequence of her reduction in her work with the first defendant. The work at Mitcham Private Hospital was considerably lighter than that with the first defendant. By March 2005, she had developed paresthesia in the right foot and left foot and was experiencing pain down her left leg and numbness down to the left big toe. She was subsequently seen at The Royal Melbourne Hospital regarding her back pain and an MRI scan was performed.
20 In August 2005, the plaintiff’s low-back symptoms were exacerbated in an incident at home when she bent to pick up a bowl. She experienced intense pain and could not straighten. Her husband assisted her initially and an ambulance was called. She was taken to Box Hill Hospital where she remained as an inpatient for two days. She was absent from all work for a period of six months.
21 The defendants do not submit that the incident at home in August 2005 constituted a new injury. It is conceded by the defendants that the plaintiff’s lumbar spine injury and symptoms currently suffered by her were caused by the initial injury at work in November 2003.
22 She again returned to work in early 2006 with the first defendant and was placed on light duties on a part-time basis. Her duties consisted of a combination of administrative work, and, for a time, care of patients’ wounds. She did not return to general nursing duties. She did not return to the Mitcham Private Hospital. She continued to experience significant lower back pain. She continued to experience radiation of pain down the back of both thighs and calves to her feet. Her pain was exacerbated by sitting for extended periods and when rising to walk. She was limited to approximately thirty minutes walking due to a combination of pains. She had difficulty driving a motor vehicle because of pain and found that bicycle riding exacerbated her pain.
23 Her duties involving wound management ceased as a consequence of management acceding to complaints from other staff of the first defendant that such duties ought not be performed by a Division 2 nurse but by more highly qualified Division 1 nurses. It was not argued by the defendants that the plaintiff had a Division 1 qualification or was capable of obtaining one. For most of the period between 2006 and the end of 2009, the plaintiff’s work was restricted to light, sedentary, administrative duties.
24 In April 2008, she was referred to Dr Verrills, where she underwent bilateral L3, L4 and L5 medial branch blocks. These procedures were repeated in May 2008. They appear to have resulted in some short-term improvement in leg pain but no lasting improvement. In August 2008, she underwent lumbar facet joint radio-frequency neurotomy with Dr Verrills. Again, this failed to provide any lasting relief.
25 In early 2007, the plaintiff was referred to Dr Kirily Adam at the Epworth Rehabilitation Centre in Camberwell. This was a rehabilitation clinic which emphasised pain management rather than treatment. Despite several attendances, she did not complete the program at that institution. She gave evidence that at that time the WorkCover claims agent had advised her that it was prepared to fund either rehabilitation at the Epworth Rehabilitation Centre or treatment as proposed by Dr Verrills, but not both. At that time she elected to proceed with the active treatment from Dr Verrills to which I have previously referred.
26 In April 2009, the plaintiff was referred to an orthopaedic surgeon, Mr de la Harpe, who initially treated her by way of epidural injection which improved her pain for about three weeks but no longer. By December 2009, Mr de la Harpe proposed spinal surgery as an option that she should consider. He arranged for an update MRI scan with a view to performing a single level fusion for her.
27 She has not proceeded to surgery at this time but her treating orthopaedic surgeon, Mr de la Harpe, considers that surgery may well be required in the future.
28 In mid-2010, the plaintiff was referred to Stephen de Graaff, a pain management specialist. At this time the WorkCover claims agent had denied liability for further medical expenses. Accordingly, she did not proceed with the proposed pain management program.
Termination of the Plaintiff’s Employment
29 The plaintiff’s employment with the first defendant was terminated in late November 2009. The plaintiff’s evidence was that she had difficulty performing the administrative and light work duties following her return to work in early 2006.
30 The plaintiff has a hearing problem of some significance which requires her to use a hearing aid. This caused problems for her when attending to telephone and reception duties. She was often unable to hear or understand persons on the telephone, especially when there was other noise in the vicinity. Complaints had been made to the first defendant concerning the plaintiff’s telephone management, and I consider it likely these complaints were based upon a lack of understanding of the plaintiff’s hearing problems.
31 In addition, the plaintiff gave evidence that as a consequence of the analgesic medication she was taking to manage her pain, she had difficulties concentrating and made numerous mistakes in her work. She found she was unable to complete tasks on time and she made attempts to decrease her medication but found that she could not because of increased pain.
32 Until late 2008, she received a good level of support and assistance from her manager, Karen Hennessy, then Director of Nursing. For example, Ms Hennessy spoke on behalf of the plaintiff at various meetings at which the plaintiff was required to attend and at which matters pertaining to the plaintiff’s duties were to be tabled and discussed. However, when Ms Hennessy resigned, she was replaced by another Director of Nursing, Ms Harper, and from that time she was not given the same level of support or sympathy in relation to the performance of her duties.
33 By October 2009, it is clear that the first defendant was not satisfied with the quality of the plaintiff’s administrative work. By letter dated 6 October 2009, it advised the plaintiff that her work performance was unacceptable in the areas of accurate entry of data onto registers and accurate graphing of clinical data to review trends. She was issued with a formal warning, calling attention to what were described as “serious issues”. The plaintiff was reminded that in previous discussions in May and August 2009, she had been given strategies to assist with improving her work but her work had not improved. The first defendant complained that the plaintiff had been unable to follow simple instructions and that the graphs prepared by her were wrong. She was advised that she was required to complete all of her set tasks within stipulated timeframes without errors.
34 In a second letter dated 14 October 2009 from the first defendant to the plaintiff, she was advised of further complaints about the quality of her work. It was alleged that she was not completing tasks in the stipulated timeframe, that she had changed the format of a register so that it was inconsistent with other registers. She had made errors in compiling pharmacy medication data and in compiling previous incident registers. It was said that she had made numerous entry errors involving wrong information and words. She was required to provide a written explanation in relation to these issues.
35 In the third letter from the first defendant to the plaintiff dated 19 October 2009, the plaintiff was advised that a review of her performance had been completed a week before and that a meeting had been arranged for 24 November 2009 to discuss performance issues. It was stated that if the issues were unable to be resolved to the first defendant’s satisfaction at that meeting, disciplinary action would be taken.
36 The plaintiff attended a meeting with representatives of the first defendant on 24 November 2009. Her evidence was that at that meeting she was offered a redundancy package. She was told that her services were no longer required. The plaintiff advised the first defendant that she felt that she had been unfairly treated. She did not accept the redundancy offer because she had hoped to continue in employment with the first defendant notwithstanding the problems that she was having in performing her duties. Shortly afterwards, the first defendant terminated the plaintiff’s employment. She has not worked since late 2009.
37 I found the plaintiff to be a credible witness who provided truthful evidence to the best of her recollection. There were times where she was plainly confused about what documents had been in existence at various times. For instance, she believed that at the meeting on 24 November 2009, she had provided the first defendant with a certificate or a letter from a doctor to the effect that she was unable to perform her duties as a result of her low-back pain. No such certificate or letter was produced. Senior Counsel for the defendants submitted that the plaintiff’s evidence in respect of this point was dishonest. I do not accept that is so. I consider that her memory of the events more than two-and-a-half years ago was somewhat confused and that such was probably at least partially caused by medication that she was taking at the time and up to the present.
38 I accept that the plaintiff performed light administrative duties between early 2006 and late 2009 with considerable difficulty. I accept that the quality of her work was likely to have been affected by medication taken by her, her lack of education or a combination of these. She was able to continue with the assistance initially of a sympathetic and supportive manager. I find that the complaints raised by the first defendant in the three letters referred to above accurately summed up the problems experienced by the plaintiff in the performance of her duties and the poor quality of her work. It was not suggested by counsel for the defendants that the contents of those letters was anything other than an opinion honestly held by representatives of the first defendant.
The Medical Evidence
39 Dr Connoley had been the plaintiff’s general practitioner since the early 1990s. The plaintiff had consulted with him on many occasions since her November 2003 injury. The parties were unable to agree as to the precise number. The plaintiff submitted that the records disclosed in excess of eighty consultations in relation to her low-back injury over that period. The defendants submitted that it was only sixty-three occasions. In addition, the parties agreed that there had been other consultations in respect of unrelated matters. On any view, Dr Connoley had seen the plaintiff on numerous occasions since November 2003. I accept that he would have been very familiar with her and her physical condition. In his report of 29 March 2010, he expressed the view that the plaintiff had suffered a mechanical lower back injury in her fall in 2003. He was of the view that she was unable to perform her pre-employment duties because of ongoing pain and was unable to work as a consequence. Although she was able to obtain some relief from analgesia, the side-effects of such prevented her from taking adequate quantities. He believed that she would be unable to continue to work indefinitely, although with the possibility of lumbar laminectomy, he thought that she might improve to the extent where work would be possible. He noted that she was unable to sit for extended periods without exacerbating pain and was unable to walk for more than about half an hour.
40 In a letter dated 9 October 2009, Dr Connoley advised that the taking of analgesia for her back condition had had an adverse affect on her ability to concentrate and had increased the possibility of her making mistakes. As a consequence, the plaintiff at that time was attempting to decrease her medication.
41 In his report of 7 February 2007, Dr Connoley opined that he was quite convinced of the genuineness of her current pain.
42 I take into account the length of time over which Dr Connoley has treated the plaintiff generally as her general practitioner and more particularly in relation to the injury the subject of this claim. I consider that, in assessing the extent of her pain and discomfort and her capacity for work, he is at an advantage over doctors who examined the plaintiff only once or twice.
43 Mr de la Harpe, in his report of 16 November 2010, was of the view that the plaintiff had mechanical and discogenic back pain without radiculopathy. He considered that her MRI examinations were consistent with a single level disc degeneration with annular tear causing discogenic back pain. His view was that this had been confirmed by a single level epidural injection which modified and reduced her pain greatly in the short term. He considered she was not fit for unrestricted employment as a nurse as a consequence of the lumbar disc condition and this was likely to persist into the foreseeable future. For reasons which are not clear, when Mr de la Harpe last saw the plaintiff in June 2010, he was of the understanding that she was still working and performing sedentary duties in an office. This is plainly not the case, she having not worked since November 2009. In any event, Mr de la Harpe considered that she should not lift weights beyond five to ten kilograms and there should no repetitive bending or twisting and she should not sit or stand in the one position beyond thirty minutes without a change of posture. His prognosis for the plaintiff was “extremely guarded”. He was of the view that she may well require a lumbar sacral fusion operation.
44 Dr Gassin was of the view that the plaintiff’s pain most likely arose from a lower lumbar disc and for that reason he arranged a radiofrequency denervation through Dr Verrills.
45 Associate Professor Bittar examined the plaintiff on a medico-legal basis in November 2010. In his report dated 17 November 2010, he expressed the view that the plaintiff’s main problem was lower back pain which was constant and which varied in character. It was exacerbated by sitting for more than thirty minutes and standing for more than thirty minutes, bending, twisting and heavy lifting. He also noted intermittent bilateral sciatica. He considered that the MRI scan of 7 December 2009 showed L5-S1 disc desiccation and that the MRI scan of 8 February 2008 had demonstrated an annular tear. He considered that the plaintiff was suffering from discogenic lower back pain with somatic referral into her lower limbs. He thought the L5-S1 disc was the cause of that pain, that she was permanently incapacitated for her pre-injury duties as a nurse and that she had minimal capacity for suitable duties as a consequence of pain, sitting intolerance and medication related concentration impairment. He considered that, in view of the severity of her symptoms, her age, education, training and skills, it was extremely unlikely that she would be able to procure and maintain a suitable position in the long-term. He stated that the plaintiff had negligible capacity for suitable employment. He thought that she would continue to suffer from significant pain and disability into the foreseeable future. He described her injury as a “very significant lumbar spine injury in the form of an L5-S1 intervertebral disc injury”.
46 Mr Russell Millar, orthopaedic surgeon, examined the plaintiff in December 2010. He was of the view that the plaintiff had suffered a disc injury at the L5- S1 level and had had a poor response to conservative treatment. Her prognosis was said to be fair to poor. He was of the view that it was possible that she could require and would benefit from surgical intervention in the form of a spinal fusion. He stated that she had not been able to return to pre-injury duties, would not be able to perform work that involved repetitive bending, repetitive lifting, lifting of weights of more than five kilograms and that she would have the requirement to shift her posture on a regular basis. He noted that she had difficulty with prolonged sitting. He considered that a return to work would be problematic in her case and envisaged that a return to part- time work would also be difficult. He believed that it was unlikely that the plaintiff would be able to increase her working hours to more than sixteen hours per week. He stated that she would have difficulty sitting or standing in the one position for a prolonged period of time.
47 The defendants had arranged for the plaintiff to be examined by a number of medical practitioners.
48 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in September 2005, September 2006 and in June 2011. In his report dated 14 September 2005, he stated that the plaintiff almost certainly suffered lumbar disc disruption in a degenerate lumbar intervertebral disc as a result of the fall on 9 November 2003. In his report of 17 June 2011, he stated that one could explain the majority of the plaintiff’s ongoing symptoms in her lower back on the basis of organic pathology. He was of the view that lumbar spine fusion surgery would be unpredictable in terms of the outcome in relation to pain and function. He thought that there was a risk of surgery worsening her symptoms. He considered that she was unfit to carry out regular heavy physical work or work that involved a lot of bending and lifting. He stated that from an orthopaedic point of view, the plaintiff was capable of carrying out some light physical work and clerical duties and would have the capability of working as a data entry clerk or customer service officer. He did not express any view as to whether she would be able to do this on a full-time or part-time basis.
49 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in August 2010 and June 2011. He considered that in the fall of November 2003, the plaintiff had aggravated underlying degenerative disc disease at the lumbosacral level and that the aggravation would account for her ongoing back pain. He did not consider there was nerve root compression. He thought the majority of her ongoing symptoms were explicable on the basis of organic pathology. She was unfit for regular heavy physical work but he considered she was fit for work as a data entry clerk or a customer service officer.
50 Dr Barton, an occupational physician, saw the plaintiff on one occasion in February 2007. He found a number of features on examination that pointed towards what he described as a significant functional component to her complaints. He considered these consisted of a discrepancy between her limited straight leg raising and postures noted at other times, dramatically described symptoms, an increase in symptoms with axial loading, and non- anatomical sensory changes and muscle weakness in the left leg. He thought it possible that she might have suffered a soft-tissue injury in the fall described but was unable to identify a basis for persisting symptoms. He thought that she had a far greater capacity for work than she or her doctor appeared to acknowledge and that a full recovery would “normally” be expected, allowing her to return to “more normal work”.
51 Dr P D Clark, an occupation physician, examined the plaintiff in February 2010. In his report of 4 February 2010, he expressed the view that the plaintiff had chronic mechanical back pain. He considered that her pain was caused by spinal degeneration at the L5-S1 disc. He did not consider that her condition at that time was the result of the claimed 2003 injury. For reasons expressed below, I do not accept that view.
52 In relation to her capacity for employment, Dr Clark’s report is confusing. He states that with a history of chronic back pain, the plaintiff is not suited to work as a personal carer. By this I understand he is referring to her pre-injury employment as a nurse. He states that the plaintiff is capable of “suitable duties”.
53 In the same report, Dr Clark states that the plaintiff is physically capable of resuming her “normal duties” now. This statement was made in response to a question as to when he expected the plaintiff to be able to return to her “pre- injury duties”. Later in his report he states that he considers that she has a current work capacity for “suitable duties”. I find these references to be inconsistent and confusing. Exactly what he means by “suitable duties” is not explained. He does not appear to have been provided with any particular job descriptions of “suitable” jobs nor other reports. I do not find his reports helpful in my analysis of the plaintiff’s earning capacity.
54 Dr Malcolm Brown, occupational physician, examined the plaintiff in July 2010 and March 2011. In his report dated 19 July 2010, he considered that the plaintiff had “uncomplicated” lower back pain with no radiological or clinical evidence of a significant spinal condition. He did not think she was a candidate for surgery and that conservative treatment was indicated. He considered she was incapacitated for work involving constant bending or heavy lifting but did have a capacity for “suitable duties” on full hours. In his report dated 29 March 2011, he again came to the view that she had “uncomplicated” lower back pain and that her prognosis depended on her compliance with an appropriate exercise program. He did not believe that she had any incapacity for employment as a result of compensable injury on the basis that there was no radiological or clinical evidence of a serious spinal injury. He thought she did have the capacity to perform jobs as outlined in the vocational assessment report from NabEnet, dated 23 July 2010, namely as a customer services officer and a data entry clerk.
55 Neither party submitted that the reports of Dr Scholes or the psychiatrist, Dr White, would assist me.
56 No doctor was required by either party to attend court for cross-examination. Accordingly, in of analysing the medical evidence, I am limited to the reports that I have referred to.
Discussion
57 I accept that the plaintiff has suffered low-back pain radiating to her legs for almost eight years. She has been treated with strong analgesic medication and has undergone invasive treatment by way of epidural injections, medial branch blocks and radio frequency neurotomy. Spinal surgery by way of fusion at L5-S1 remains a genuine possibility in the future.
58 I have noted the evidence of the orthopaedic surgeons, Mr de la Harpe, Mr Millar, Mr Simm and Mr Dooley, all of whom opined that the plaintiff’s ongoing symptoms were physically or mechanically caused. Insofar as Dr Barton considered there to be no physical organic or physical explanation for her symptoms, I reject that evidence.
59 I accept that, as a consequence of her workplace accident of 3 November 2003, the plaintiff suffers from mechanical low-back pain of a discogenic nature with resultant radiation to both legs and buttocks.
60 I accept that her symptoms are genuine and significant. It is likely that they will continue permanently, in the sense of in the foreseeable future.
61 I was told at the commencement of the proceeding that Senior Counsel for the defendants advised me that “the pain and suffering is not conceded, but the main issue is economic loss”. In his closing submissions, Senior Counsel for the defendants did not seek to address me on the issue as to whether the plaintiff’s injury was “serious” with respect to pain and suffering. His submissions were limited to whether the injury was “serious” with respect to loss of earning capacity.
62 I am satisfied that the plaintiff’s low-back injury is “serious” within the meaning of s.134AB(37) of the Act, in that the pain and suffering consequences to her of the injury, when judged by comparison with other cases in the range of possible impairments or loss of body function, may be fairly described as being more than significant or marked and being at least very considerable.
63 The remaining issue between the parties is as to whether the plaintiff’s injury is “serious” with respect to loss of earning capacity.
64 Immediately before the injury of November 2003, the plaintiff was working approximately eighteen hours per week on a permanent part-time basis with the first defendant. At that time, her children were aged eight years and ten years respectively. It suited her to work on a part-time basis. I accept her evidence that it was her intention to work full-time hours from a time shortly after completing her traineeship some time in 2004 or shortly thereafter and that she had the capacity to do so, but for her injury.
65 I accept that prior to her injury, the plaintiff had the capacity to work a 38-hour week performing general nursing duties. It is true that the plaintiff had had a variety of relatively minor medical issues before her injury but it is not suggested by the defendants that those issues would in any way have impaired her earning capacity.
66 Section 134AB(38)(f) of the Act requires me to look at the gross income that the plaintiff was capable of earning from personal exertion had the injury not occurred. The assessment is not to be based merely on what the plaintiff was actually earning at that time. Likewise, the sub-section requires me to compare those earnings with what the plaintiff is currently earning from personal exertion or is capable of earning in suitable employment, whichever is the greater.
67 I accept that the plaintiff has no capacity to return to her pre-injury duties as a nurse. That view is accepted by each of the medical practitioners concerned, with the exception of Dr Barton, whose evidence on that issue I reject.
68 The more controversial issue is whether the plaintiff is capable of working in a position such as a customer services officer or data entry clerk on either a full- time or part-time basis. The parties agreed that had the plaintiff not suffered the back injury in question by 2006 and within the three-year post injury period nominated in s.134AB(38)(f), she had a capacity to earn $760 per week ($39,520 per annum) based on a 38-hour week at $20 per hour. Accordingly, the parties agree that the plaintiff, in order to succeed in this application with respect to the loss of earnings consequences of her injury, would have to establish that she was unable by reason of her injuries to earn the sum of $23,712 per annum (being 60 per cent of $39,520). Assuming an hourly rate of $20, the plaintiff would need to work 23 hours per week in order to earn that sum.
69 I accept that, without injury, the plaintiff would have taken up full-time employment within a short time of completing her traineeship. This was likely to have been made up of work with the first defendant and with other hospitals or institutions, making up a 38-hour week in total. I accept that the plaintiff has done her best to remain in the workforce and has always been genuinely motivated to do so.
70 The overwhelming weight of the evidence is that the plaintiff is not fit to return to her pre-injury duties.
71 The defendants submit that the plaintiff has a capacity to return to light work, sedentary duties and rely on the evidence of Mr Dooley and Dr Brown, together with a vocational assessment report dated 23 July 2010 from NabEnet prepared by Marion Chua, a registered psychologist. I note that Ms Chua was provided with only two medical reports, namely those of Dr Connoley dated 14 September 2005 and 11 October 2005. She was not provided with Dr Connoley’s report of 29 March 2010. Nor was a further report from Ms Chua sought upon receipt of the reports of Associate Professor Bittar or Mr Miller. Those reports and the comments in them regarding work capacity may or may not have altered Ms Chua’s views as to the plaintiff’s suitability for the jobs proposed by her.
72 The plaintiff gave a history of symptoms to Mr Dooley consistent with that provided by her in her affidavits and in her oral evidence to the Court. Mr Dooley opined that, whilst symptoms relating to a degenerate disc can vary, the majority of patients with such a condition can self-manage their problem with regular exercise, a fitness program and some modification of activities. I am, however, required to consider the consequences of injury for the plaintiff. References to how “the majority of cases” might be affected by a particular injury are of no assistance to me in this regard. As stated above, I found the plaintiff to be a truthful witness. I do not consider she was exaggerating her symptoms. I find that she was well motivated with respect to remaining at work and would have returned to some form of work had she been able to do so.
73 In any event, I find that the three letters written by the first defendant to the plaintiff in October 2009 contain genuinely held views of those in a position of management at the first defendant that the plaintiff was not capable of performing her administrative duties in an efficient and timely way. Whether this is in part due to the plaintiff’s lack of formal education, the effect of the medication she was taking and which she continues to take, or a combination of both, it is, in my view, unrealistic to suggest that the plaintiff is suited to such administrative work where such work involves a requirement that it be performed accurately and within specified timeframes. It is plain from the first defendant’s own correspondence that she was capable of neither.
74 In addition, there is a real issue in my view as to whether the plaintiff’s inability to sit for prolonged periods would prevent her efficiently carrying out the proposed duties. Such sedentary work will undoubtedly involve working at a computer for much, if not all, of the working day. I consider it unlikely that she would be able to do so. I consider it unlikely that she would be permitted to leave her workstation whenever it suited her or that in doing so, she would be able to comply with requirements concerning timeframes.
75 Mr Miller considered that the plaintiff would need a requirement that she shift her posture on a regular basis and that she had a difficulty with prolonged sitting. He stated that a return to work would be problematic. He thought she would be unlikely to increase her working hours more than sixteen hours per week, although he did not identify any particular jobs in which she could work those hours.
76 For the reasons referred to above, I am satisfied that the plaintiff does not have a capacity to perform the jobs referred to in Ms Chua’s report on a full- time or part-time basis. I am satisfied that the plaintiff does not have a current capacity to earn $23,712 per annum and I am satisfied that that incapacity is likely to be permanent, in the sense that it is likely to continue for the foreseeable future.
77 Accordingly, I am satisfied that the plaintiff has established that she has suffered a loss of earning capacity of more than 40 per cent and that she will after this date continue permanently to have such a loss.
Conclusion
78 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.16(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of in the course of her employment with the first defendant.
79 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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