Mikesic v Woolworths Limited

[2016] VCC 1363

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-06115

MARICA MIKESIC	Plaintiff
v
WOOLWORTHS LIMITED	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 August 2016
DATE OF JUDGMENT:	16 September 2016
CASE MAY BE CITED AS:	Mikesic v Woolworths Limited
MEDIUM NEUTRAL CITATION:	[2016] VCC 1363

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment of the spine – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                 Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram	Shine Lawyers
For the Defendant	Ms B Myers	Hall & Wilcox

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant from 2006 to February 2011.

2       The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

3       The body function relied upon in this application is the spine.

4       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

6 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments, [can be] fairly described, at the date of the hearing, as being “more than significant or marked, and as being at least very considerable”.

7       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

8       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

9       Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

10      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

11      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

12      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd & Anor[2] and Meadows v Lichmore Pty Ltd[3] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

[3][2013] VSCA 201

13      The plaintiff relied upon two affidavits and was cross-examined.  Her husband, Drago, swore an affidavit on 29 July 2016.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

14      The plaintiff is presently aged fifty-six, having been born in Croatia in July 1960.  She migrated to Australia in 1969.

15      In 1977, the plaintiff completed Year 11 and was employed for two years thereafter as a sales assistant in a retail clothing shop in the Melbourne CBD.

16      Between 1981 and 1985, the plaintiff was employed full time at Sims Supermarket in West Footscray initially as a cashier in the fruit department, and then later in other areas of that store.[4]

[4]Transcript (“T”) 13

17      In about 1985, the plaintiff left Sims to go back to clothing retail which she preferred.  She felt more comfortable working in this field in a smaller environment.[5] 

[5]T14

18      The plaintiff obtained a job as a shop assistant at Trendy Girl in Sunshine, a casual ladies clothing store, where she worked until 1999.  She had responsibilities for opening and closing the store.  She was able to order stock over the telephone and she did the stocktake, although her spelling was very, very poor.  There were no computers in the shop and she was required to operate only very basic tills.[6]

[6]T16

19      In 2002, the plaintiff commenced employment with the defendant at the Deer Park Safeway.  At that time, she had been unable to get a job in retail because of her lack of computer skills.[7]

[7]T49

20      The plaintiff’s work at Safeway involved repeated strains on her spine, moving and manually handling fresh and frozen produce, including trays of chicken and other food stuffs, weighing 10 to 15 kilograms.  She was required to move stock from the coolroom to the deli, stock the refrigerator, and also do extensive customer service which involved bending into display cabinets.

21      In 2006, the plaintiff began to develop spinal pain.  Initially, she kept working in the hope her symptoms would settle down, but that did not transpire and she had to attend her general practitioner, Dr Wegrzynowski.  She was treated conservatively with medication and subsequently referred to a physiotherapist, Richard McGlynn, in November 2006.  Dr Wegrzynowski also arranged a CT scan and x‑ray.

22      Physiotherapy treatment involved massage, concentrating on the lower back but, with the passage of time, extended to the plaintiff’s upper back and neck, when she has had pain in those areas. 

23      The plaintiff believed it was about early 2008 when her upper back and neck symptoms began to emerge and cause her significant problems.  Her general practitioner arranged a CT scan of her cervical spine in January 2009.

24      In October 2011, Dr Wegrzynowski referred the plaintiff to Dr Thomas, rehabilitation specialist, with widespread pains affecting her upper and lower back, shoulders and neck.  He recommended referral to Dorset Pain Management (“Dorset”).  Dr Thomas did not discuss the plaintiff’s work capacity with her.[8] 

[8]T30

25      The plaintiff attended Dorset for six months, sometimes for full days, generally for two days a week.  Activities at Dorset included hydrotherapy, psychological counselling, pain management advice and also seeing an occupational therapist.  Dorset helped the plaintiff deal with her symptoms and pace her activities, although it did not result in an improvement in her pain level. 

26      At Dorset, the plaintiff learnt that there was such a thing as chronic pain, when you are in pain all the time.  She was taught she had soft tissue damage, and even if she did something and was in severe pain later, then she was not doing any permanent damage.[9]

[9]T30

27      The plaintiff required various periods of time off work and modified duties until February 2011, when her employment was terminated.

28      The modified duties were not really modified at all.  By and large, the plaintiff had to perform the majority of her usual duties save for some of the particularly heavy tasks, such as the manual handling of larger stock. 

29      The plaintiff carried on as long as she could, but by February 2011, had to give up work altogether.  A compensation claim was filed and she received compensation payments for a period of time.

30      The defendant attempted to terminate the plaintiff’s entitlements, but she went to the Medical Panel, which ordered reinstatement, and she remains in receipt of weekly payments to the present time.

31      Before she left, the plaintiff had suggested to the defendant’s management what work she thought she could do at the supermarket, having “spent a lot of agonising hours working out what she could do with her restrictions”.[10] 

[10]T44

32      When she brought her certificate in before her employment was terminated, the plaintiff was told she could not work in different departments because they had their own payment system.  She was suggesting working fronting up the shelves, adjusting items to make them look neat and tidy.[11]

[11]T46

33      After ceasing work, the plaintiff attended an agency through Safeway at Sunshine.  The agency looked for jobs for her but had not really got back to her.  She had not looked for a job herself.[12]

[12]T44

34      When she swore her first affidavit in February 2015, the plaintiff thought, by reason of her injuries, she would struggle to do any work.  She was then aged fifty-four and suffered pain throughout her spine, in addition to referred pain.  She was certified unfit for all work and did not believe she would be capable of undertaking physical work, or any other forms of employment for which she was qualified by vocational training.

35      The plaintiff had never worked in a sedentary occupation and believed, at her age, she would not be capable of retraining to do so.  Although she had reasonable spoken English, her spelling and written English were poor and she had problems with spelling and grammar.  She was not able to operate a computer and had no skills suitable to a sedentary work environment.

36      The plaintiff then continued to suffer ongoing, but variable levels of pain throughout her spine, and also referred pain, particularly across the shoulder girdle.  On occasion, the pain was so severe she felt as if she was having difficulty breathing.  She had had rehabilitation without achieving any lasting resolution.

37      In addition to her other problems, the plaintiff suffered headaches and migraines, which she related to her spinal injury.

38      The plaintiff then took Panadeine Forte to try and relieve those symptoms, and she required Nurofen Plus to try and relieve lower back pain.

39      The plaintiff was limited in her activities around the house.  She got some help from her husband and sons but, by and large, the majority of household chores fell to her.  She also did most of the cooking.  All those activities continued to place strain on her spine and led to increased levels of pain.

40      The plaintiff found her sleep was disturbed by pain and that led to her feeling tired and lethargic throughout the course of the day.

41      The plaintiff used to enjoy gardening but, again, the pain limited her activities in that regard.

42      There was no aspect of the plaintiff’s lifestyle which had not been dramatically affected by reason of the severity of her spine and related pain.  She found the best way to try and relieve pain was simply to avoid activities which led to an increase in her symptoms.

43      In her most recent affidavit sworn on 4 July 2016, the plaintiff confirmed she suffers variable and constant levels of spinal pain, the worst being in the cervical spine, spreading across her upper back and shoulder blade.  That pain also extends up into the back of her head and causes her severe headaches, which can last two to three days on a fairly regular basis, namely, about once per month.

44      There is also pain in the plaintiff’s lower back, which can vary significantly in its severity.  When most severe, the pain is a significant concern for her but, overall, it is generally less troublesome than her neck and upper back pain.

45      The plaintiff disagreed that she presently has pain all over her body.  She did have pain in her hands and in her feet occasionally, but more in the calves, buttocks and lower back.  She had pain in her thighs and upper arms.[13]

[13]T46

46      The plaintiff agreed that she put many crosses on a diagram of her body when examined by Dr Davison, indicating she had pain in a lot of areas.  She gets pins and needles going down the leg sometimes.  Most of the time she is in pain, but the pain might not be excruciating.[14] 

[14]T47

47      In the witness box, the plaintiff described experiencing constant mid-lower back pain.  The pain radiates into the front area of her right side, but it can do so on either side.  It just depends.  She then also had a “basically cold and like a tingly feeling” in her hand.[15]

[15]T48

48      The plaintiff has undergone an ultrasound for a sore right knee.[16]  Sometimes her knee flares up, but she has not had a problem with it, and it is fine with exercise.[17]

[16]T39

[17]T40

49      Dr Wegrzynowski, whom the plaintiff continues to see monthly, certifies her unfit for all work because of her spinal injury.

50      The plaintiff deposed that Dr Wegrzynowski has prescribed Panadeine Forte, which she uses, particularly with her neck pain and headache, and would use, perhaps, three to four days a month for partial release of such pain.  More usually, she uses Nurofen, or Nurofen Plus as needed, not every day, but most days, particularly for its anti-inflammatory properties, which provide some temporary relief with respect to her levels of spinal pain, although not in relation to her headaches. 

51      The plaintiff has to limit her medication because she has significant reflux and intestinal pain and has been prescribed Nexium for relief of those symptoms.

52      In cross-examination, the plaintiff confirmed that she is currently taking Panadeine Forte and Nurofen and has been taking those tablets for a few years.  Her intake depends on whether she has migraine or lower back pain.  If she has a migraine, then Nurofen does not work so she has to take Panadeine Forte. 

53      The plaintiff’s consumption of Panadeine Forte varies.[18]  She takes it at least two or three times a week,[19] two or three tablets a day, at least.  There might be days when she takes nothing, but that was very rarely.  She tries to avoid medication as much as she can.[20] 

[18]T33

[19]T34

[20]T35

54      The plaintiff explained that she got really confused with all the questions in cross-examination about her medication intake.  Dr Wegrzynowski prescribed Panadeine Forte, as often as the plaintiff needed it but the plaintiff was not sure when it was last prescribed.  Her husband usually picks the tablets up for her.[21] 

[21]T36

55      The plaintiff then said sometimes she took her husband’s tablets.  She does not ask Dr Wegrzynowski to prescribe medication because she tries to keep away from tablets and when she needs them she uses her husbands.  Originally, Dr Wegrzynowski had prescribed tablets for her.[22]

[22]T38

56      There was a high probability the plaintiff would be sick if she took Panadeine Forte.  She got cramps and constipation when she took Nurofen.[23] 

[23]T59

57      The plaintiff continues to see Richard McGlynn, physiotherapist, generally once or twice a month.  This treatment is funded by the defendant.  The plaintiff last saw him the week prior to the hearing and before that she saw him about a month and a half ago.  She attends when the pain flares up.[24]

[24]T30

58      The plaintiff was adamant that she has had continuing physiotherapy treatment save for the time at Dorset.  There would not have been a year when she had no physiotherapy.[25]

[25]T28; Mr McGlynn’s notes indicated a gap in treatment from October 2011 to September 2013

59      The chronic nature of the plaintiff’s pain has led her to suffer some symptoms of anxiety and depression.  She has not been prescribed any medication by Dr Wegrzynowski in relation thereto, but has been referred to a counsellor, whom she seeks every six weeks, and receives advice as to how to try and cope with her pain.

60      On occasion, the plaintiff becomes tearful because of the pain or, also, when thinking about the pain and what she has lost in terms of a job she used to enjoy, and other aspects of her lifestyle.

61      The plaintiff believes her continuing pain incapacitates her for employment.  She would no longer be able to undertake strenuous manual handling, which was part and parcel of her job with the defendant.  She is now fifty-six.  She has no vocational or trade qualifications and is not computer literate.  Her English is relatively poor.  The plaintiff believes, when seen in light of her persisting spinal pain, these factors render her incapacitated for all work on a permanent basis.

62      Because of pain at various levels along the spine, with referred symptoms, the plaintiff has difficulty with prolonged postures, sitting or holding her spine in a fixed position.  Such postures put strain on her spine and lead to increased symptoms. 

63      The plaintiff walks every day for about ten to twenty minutes, and sometimes can walk longer.  It would have been a couple of years since she last walked for an hour.[26]  She has always been a brisk walker and she tries to walk briskly, but if the pain is severe, it slows her down.[27] 

[26]T40

[27]T41

64      The plaintiff used to enjoy needle work, such as knitting and crotchet.  She also enjoyed reading.  Since her injury, if she attempts these activities she finds, within a very short time, she begins to suffer an increase in her level of symptoms with neck pain and stiffness and she has to stop.  She used to do a lot of knitting and crochet but has been unable to do it for a few years.[28]

[28]T43

65      The plaintiff now limits herself in the performance of household tasks and relies on her husband to do heavier aspects of cleaning.

66      The plaintiff enjoys getting into the garden, but finds she is most comfortable kneeling when working there.  Even then, she finds that constant bending and flexing causes increased levels of spinal pain.  She has a little patch of flowers and garden.[29] She can bend, but will pay for it later with pain.[30]

[29]T41

[30]T42

67      The plaintiff now does not do much baking, but she does a lot of the cooking.  Her husband helps her out but she does a lot of it.  Either she or her husband go shopping and he has to undertake the heavier aspects thereof.  She and her husband share the clothes washing.[31]

[31]T42

68      The plaintiff sees her friends for coffee as they force her to go out and get out of the house.[32]

[32]T43

69      The plaintiff’s sleep continues to be disrupted by pain and that leaves her feeling tired and lethargic the following day.  She finds the best pain relief is avoiding activities which lead to an increase in her spinal symptoms.

70      The plaintiff was cross-examined extensively about her family situation and the relationship with her two sons; Ivan, thirty and, Tony, now twenty-five.

71      The plaintiff would not say she had had problems with her sons.  They were adult children at home who had different expectations to hers.  In recent years, Tony had a few issues at work.[33]  He was getting bullied and not being paid from 2011 to 2015, and that situation affected the plaintiff greatly.  That was the only issue with him.[34]

[33]T8

[34]T19

72      Ivan was a hopeless romantic.  He kept trying with relationships.  The plaintiff was naturally upset when he got upset.  That was the case for a few months about two or three years ago.[35]  Other than that, there had been no problem with either son.  There were, obviously, everyday issues which came up.  The plaintiff was in pain all the time.  Her boys were living life like everyone else’s children.  During cross-examination, the plaintiff felt like her children were being put on trial.[36]

[35]T20

[36]T21

73      When a number of the matters relating to her sons were put to the plaintiff, she explained her concentration was pretty poor and she could not think of everything.[37]

[37]T22

74      The plaintiff then said that Tony had Attention Deficit Disorder, which took her and her husband a while to understand and it did cause distress “whether you like it or not”.[38]  Her parenting skills might be a bit different to her husbands.[39]

[38]T22

[39]T23

75      The plaintiff agreed she had spent a lot of time discussing these family problems with Ms Roglic and she had also been discussing the pain that she had been suffering.[40]

[40]T23

76      The plaintiff agreed she told Ms Roglic that Ivan was bullying and manipulative and resorted to screaming.  He had been rude and aggressive towards her.[41]  The plaintiff agreed that in 2014, Ivan was bashed by associates of his girlfriend and ended up being hospitalised, undergoing facial surgery.[42]

[41]T24

[42]T25

77      The plaintiff is not seeing Ms Roglic about her sons.  She initially went to see her because of her pain to try to handle it emotionally.  Strategies as to how to handle her sons, and pain management, had been the focus of sessions.[43]

[43]T26

78      The plaintiff did not mention anything about her sons in her affidavits because they did not affect her everyday life.  She started to see Ms Roglic because of pain issues.[44]

[44]T26

Capacity for suggested jobs

79      The plaintiff knew she could not work in an optician shop, because she does not have computer skills and her reading skills are very poor.[45]  The job involves technology and she does not even have a smart phone.[46] 

[45]T48

[46]T49

80      The plaintiff explained that basically, in order to be able to be employed, you have to be able to cope with your pain, be punctual and have “a smile on your face, even when working in the deli in pain.  Otherwise, you would be reprimanded.”

81      The plaintiff did not know if there would be an employer who would be very compassionate and understanding if she was to ring up and said she felt sick and could not come in to work.[47]

[47]T49

82      The plaintiff preferred work in clothing retail but, because she did not have the requisite computer skills, she could not get such work and had to go to work with the defendant.[48] 

[48]T49

83      The plaintiff has not done any up-skilling in terms of computer use.  She was thinking of doing a course but would have had to be punctual and a lot of the time she is in pain and has headaches.  She has problems sleeping during the night, and is really fatigued.  She has not gone to any local libraries to enquire whether they have a computer course.[49]

[49]T50

84      The plaintiff did not think she could work as a picker/packer because of the repetitive work and bending involved which would increase her pain.  She can bend down to pick up something from the ground, but not repeatedly.[50]

[50]T51

85      The plaintiff did not have any training or ability to be a sales demonstrator,[51]  retail supervisor, or data entry officer.[52]  She has a 5-kilogram lifting limit.[53]  She could not repetitively lift and carry objects weighing 4.5 kilograms.[54]

[51]T61

[52]T62

[53]T63

[54]T64

86      The plaintiff would have problems performing various tasks required of a sales assistant, hand packer and product quality examiner detailed in the vocational reports.[55]  She lacks computer literacy.  She would be unable to pack containers and bags or do other tasks repeatedly.  She would be unable to bend, squat, crouch or kneel to inspect machinery.[56]

[55]T64

[56]T65

87      The plaintiff would love to work and she would rather be in the deli at Safeway than in Court.  There had been another lady working with her, Nadia, who had worked there until she was sixty-five.  The plaintiff had hoped to be in that job to a similar age.[57]

[57]T51

Surveillance

88      A number of surveillance DVDs were shown.

89      Exhibit 1 was video surveillance of 19 minutes taken on 6 and 30 December 2010.  The plaintiff was shown walking around doing some shopping.  She put groceries in the boot of her car, bending slightly to do so.

90      The plaintiff never said she could not bend down.  She was in a lot of pain standing in the line at the shops.  She also had pain at work but kept going to work.[58] 

[58]T53

91      Exhibit 2 was surveillance video of 13 minutes of taken on 20 and 23 April 2011.

92      The plaintiff was shown briefly using a broom sweeping outside the front of her house and later picking up some small items from the ground. 

93      The plaintiff would not say she was moving freely because she had to press down on the broom for support.  She could bend down, and never said she could not, but doing so causes her a lot of pain.  She thought she was her worst enemy because she pushed herself.  She was in pain when bending but things needed to be done.  She had been taught at Dorset to do a little bit at a time, and not to let it build up, and not push yourself.[59]

[59]T50

94      Whilst the plaintiff was able to stand to go straight upright again after bending and then bend again, that did not mean she was not in pain later.  She was quite flexible in her movement but it caused pain.[60]

[60]T55

95      Exhibit 3 was 5 minutes of film taken on 7 April 2016. 

96      The plaintiff was shown walking quite briskly along the street and at times moving her arms.

97      The plaintiff denied she was walking and moving freely.  She was stretching her arms because she was in pain.  She does walk quite briskly and if she was in severe pain she would not have gone for a walk.  She did not think she was walking for longer than an hour on that occasion.[61]

[61]T56

98      Exhibit 4 was 2.5 minutes of film taken on 4 May 2016 in which the plaintiff was shown holding a small plant, standing in the street talking to a friend.

99      In re-examination, when asked about the video where she was shown sweeping and bending, the plaintiff explained that it caused her pain to do so.  She was in pain constantly.  Whether she did tasks or not, she was still going to be in pain.  She had pain in the lower back across into her buttock, worse on the right, but it was on both sides.  She was experiencing that pain whilst in the witness box.[62]

[62]T60

Summary of the Plaintiff’s income tax returns

Financial Year Ending	Taxable Income
2007	$30,295
2008	$31,010
2009	$30,860
2010	$31,617
2011	$30,274
2012	$26,808

Lay evidence

100     The plaintiff’s husband, Drago Mikesic, swore an affidavit on 29 July 2016.

101     Mr Mikesic could recall the plaintiff began to complain of spinal pain symptoms in about 2006.  He confirmed her ongoing treatment with her general practitioner and physiotherapist, which continued for many years.  The plaintiff has also taken medication including Nurofen, Nurofen Plus and anti-inflammatories, and she completed a pain management course.

102     Despite all those treatments, the plaintiff continues to complain of persisting spinal pain of variable severity in her lower back but, more particularly, her neck.  That pain radiates into her shoulder blades and she frequently also complains of suffering from headaches and migraines.  When they occur, she takes the tablets and lies down.  On numerous occasions, her symptoms have been so severe that he has had to give her a bucket as she has needed to vomit.

103     By reason of her pain and disability, the plaintiff was eventually forced to cease work in February 2011, but there has not been any significant improvement in the level of her symptoms since then.  She continues to complain of pain in her spine, and referred pains, and also headaches and migraines.

104     Mr Mikesic confirmed the fifty-six year old plaintiff’s problems with English and her lack of computer knowledge.  From his observation of her ongoing physical limitations, he thought she would be unable to perform the physical tasks that he had previously seen her doing at work.  He knows this, because around the house, he has had to undertake many chores the plaintiff previously did such as heavier aspects of cleaning and gardening.  He is now forced to undertake those tasks despite the fact he has a neck injury and was forced to cease work himself, and is in receipt of a Disability Support Pension.

105     The plaintiff is also restricted in numerous activities which she formally enjoyed.  Her needlework and knitting are significantly reduced.

106     The plaintiff enjoyed reading romance novels, but has been limited in her ability to undertake that activity because of the time she takes to read through the English words.  She finds it difficult to get comfortable when seated and is constantly moving around.

107     During the night, he has observed the plaintiff’s sleep is disrupted and he is often woken by her tossing and turning.

The Plaintiff’s medical evidence

Treaters

108     The plaintiff’s general practitioner, Dr Wegrzynowski, most recently reported on 12 August 2016, having first consulted the plaintiff regarding her back injury on 23 October 2006.  That report was in essentially in identical terms to her report of February 2013 with a few paragraphs updating the plaintiff’s condition.

109     In the 2016 report, Dr Wegrzynowski detailed the plaintiff’s attendances to the time she attended Dorset and a subsequent referral for a vocational assessment in November 2012.

110     Dr Wegrzynowski noted that thereafter, the plaintiff continued to attend monthly for a WorkCover certificate.  Her condition remained unchanged.  She was referred to psychologist, Linda Roglic, in 2014 to assist in management of Adjustment Disorder associated with Chronic Pain Syndrome.

111     Dr Wegrzynowski confirmed the plaintiff continues to suffer chronic back and neck pain directly related to her work-related injury at Safeway as a deli assistant.  She had developed a Chronic Pain Syndrome and Adjustment Disorder related to her chronic pain and disability.  Despite physiotherapy, exercise, rehabilitation program, gym program, analgesia, anti-inflammatories, and psychological treatment, her symptoms persisted.

112     Dr Wegrzynowski considered the plaintiff remained unfit to return to her pre-injury duties in the deli section at Safeway indefinitely, and was unfit to return to any duties in the deli or liquor sections offered as light modified duties by her workplace.  She considered the plaintiff remained unfit for any duties.

113     Dr Wegrzynowski provided a short report dated 16 August 2016, confirming she was treating the plaintiff’s husband for a neck injury and regularly prescribing him Panadeine Forte and Nurofen Plus.

114     Mr McGlynn from Physiowest last reported in February 2013.  The plaintiff initially attended his clinic on 14 November 2006 complaining of low back pain from performing her work duties.  This report detailed treatment in November 2011.

115     Mr McGlynn thought the plaintiff had developed chronic low back pain working in the deli.  She had failed to return to pre-injury duties and had a reduced capacity for work.

116     At that stage, Mr McGlynn thought the plaintiff would benefit from a pain management program. 

117     Psychologist, Linda Roglic, reported on 14 July 2016, having first seen the plaintiff in February 2014 on referral from her general practitioner.  Her presentation was one of significant distress, high anxiety and some depression.

118     Ms Roglic noted the focus of the sessions with the plaintiff was to assist her with psychoeducation regarding the presenting features of the dynamics of her sons’ conditions, her role and rights as a parent to adult children continuing to reside at home, the development of strategy in engaging her husband as a support managing their common and individual goals regarding their sons and home life, and facilitating her own self-regulation.  Ms Roglic thought considerable gains had been achieved in that regard.

119     Ms Roglic noted the plaintiff’s situation regarding her sons had been lifelong, thereby preceding her employment with the defendant and therefore her injury.  Ms Roglic considered this was not a contributing or predisposing factor to the plaintiff’s injury, either in terms of her injury occurrence, or recovery, or prognosis.

120     Ms Roglic thought the plaintiff’s domestic circumstances regarding her sons, although not eased by her WorkCover injury situation, were not aggravated significantly by it so as to have contributed further notable injury to her life.

121     Ms Roglic considered the plaintiff’s psychological presentation, insofar as it had been identified as related to her domestic situation, had improved considerably.

122     It was Ms Roglic’s belief that while the plaintiff was likely to have some depression related to her injury, there was also for her an overall sense of sadness connected to the pragmatic acceptance of her physical injury condition, loss of spontaneity and loss of hope for better or more.  Ms Roglic thought it may be that the plaintiff’s acceptance of this sadness of loss, alongside her physical injury or its stabilisation, was the reason she had not raised it in session.

123     In closing, Ms Roglic concluded it should be noted the plaintiff had demonstrated considerable resilience over the years.  She was a person of strong family values and considerable religious faith, supported by good faith practice, which had been both her touchstone and strength, allowing her resilience as she endured some very difficult times and circumstances.

124     Dr Clayton Thomas first saw the plaintiff on 24 October 2011 on referral from Dr Wegrzynowski.

125     The plaintiff then described fairly widespread pain symptoms, with neck pain, shoulder pain, headaches, interscapular pain, right chest-wall pain, and lower back pain.  She indicated there was constant pain but the levels fluctuated, and there was no particular pattern.  She rated her pain at worst 8 out of 10, and at best, 5.

126     On examination, the plaintiff did have some fairly diffuse tender points.  Her spinal movements were in fact reasonably well preserved.  She had a full range of shoulder movement, and neurologically upper and lower limbs presented as being intact, hips and straight leg raising were normal.

127     Dr Thomas diagnosed a fairly diffuse and widespread Pain Syndrome, not meeting the criteria of fibromyalgia.

128     Dr Thomas noted the plaintiff was quite distressed and teary relating to her condition and her perception of it, and he reassured her there was nothing to suggest the pain was problematic from the point of view of making her condition worse.  He referred the plaintiff to Dorset for a multi­disciplinary rehabilitation program.

129     Dr Thomas felt the plaintiff then had a work capacity but she should not be going back to the liquor or deli section.  Facing up, ticketing and other similar activities were more appropriate and more reasonable.  He suggested a return to work following the rehabilitation program.  Dr Thomas was not convinced that interventional pain management techniques or medication were likely to help the plaintiff.  He asked her to return to see him at the end of rehabilitation.

130     On re-examination on 21 November 2012 after the plaintiff had finished the program at Dorset, Dr Thomas advised Dr Wegrzynowski that there was not much to be done.  Despite her complaints of pain, the plaintiff was on appropriate medication and the employer was not prepared to take her back.

131     Dr Thomas thought that the plaintiff had a work capacity and noted she had a vocational provider.  He suggested to her it was unlikely they would find a job for her, and it would be preferable for her to try and find her own job off her own bat, looking at local places where she could possibly work.

132     Dr Thomas noted the plaintiff had a number of years working in retail, and, although she did have some difficulty with lifting of heavy weights repetitively, he would have thought some form of customer service position in a part-time manner would be a viable option.  In his view, there was certainly nothing else medically that could be done, and he had not scheduled a review.

Investigations

133     The first CT scan of the plaintiff’s lumbar spine was organised by Dr Wegrzynowski in October 2006. 

134     It was reported there was moderately severe L4‑5 lumbar canal stenosis secondary to a central and right L4-5 disc prolapse and right L5 nerve root impingement.  An MRI scan was recommended. 

135     There was mild to moderate L3-4 lumbar canal stenosis secondary to a diffuse L3-4 disc bulge.  There was mild L5-S1 lumbar canal stenosis secondary to a central L5-S1 disc prolapse. 

136     Dr Wegrzynowski organised a CT scan of the plaintiff’s cervical spine in January 2009. 

137     It was reported that there were no CT features of spinal canal or neural foraminal stenosis at the cervical spine.  There were well defined curvilinear defects of sclerotic margins at the spinolaminar junction at C7, with duplicated spinous process of the C7 vertebra – a rare congenital anomaly, the significance of which was uncertain.

138     Dr Wegrzynowski organised a CT scan of the lumbosacral spine in February 2011. 

139     It was reported there was a moderate broad-based disc bulge at the L4-5 level, with narrowing in the region of the subarticular recesses bilaterally and probable impingement of the traversing L5 nerve roots.  At the remaining levels, while there was evidence of minor posterior disc and posterior element hypotropic change, there was no definite evidence of neural impingement. 

140     Dr Le organised an MRI scan of the plaintiff’s cervical spine in April 2011.  It was reported there was mild cervical spondylosis only and no significant canal or foraminal stenosis at any cervical level.

Medico-legal evidence

141     On 29 April 2013, the Medical Panel determined the plaintiff had a 5 per cent impairment of the lumbar spine.

142     On 9 May 2013, the Medical Panel concluded the plaintiff had no current work capacity and that that situation was likely to continue indefinitely.  In the Panel’s opinion, the L4‑5 and L5‑S1 disc disruption with referred symptoms of leg pain without radiculopathy and a Chronic Pain Disorder with psychological features and related to a general medical condition resulted from and/or was materially contributed to by the claimed injury to the back.

143     Mr Brearley, orthopaedic surgeon, examined the plaintiff initially in July 2014 and, more recently, in June 2016.

144     Following the first examination, Mr Brearley diagnosed mechanical lumbar back pain secondary to L4-5 and L5-S1 intradisc rupture with prolapse.  There was no clinical evidence of radiculopathy.  The disc injuries were on a background of degenerative disc disease which was previously asymptomatic.  In addition, the plaintiff had a Chronic Pain Disorder, partly psychogenic in origin.

145     On re-examination, findings remained the same in relation to the back as on initial examination, with there being slight limitation of flexion.  Other movements were normal.  Bilateral straight leg raising was to 90 degrees.  There was some slight limitation with right and left rotation but, otherwise, neck movements were normal.

146     Mr Brearley repeated his earlier diagnosis as to the lumbar injury.  He then considered the plaintiff had a Chronic Pain Disorder which then appeared to be of prime importance in her symptomatology.  He thought she needed conservative treatment with physiotherapy and medication which she was currently having.

147     Mr Brearley considered the plaintiff’s very physical demanding work materially contributed to the exacerbation of her pre-existing disc lesions.  He thought she could not do her pre-injury work, or other physical work.

148     Mr Brearley noted the plaintiff could not stand for long periods, or do any significant lifting, bending or stooping, because of her back pathology.  He thought she could do administrative work, but noted she had no training in office work at all.  In his view, there was no possibility of an employer being prepared to offer the plaintiff paid employment in view of her injuries and ongoing disability.

149     Mr Brearley did not believe the plaintiff would work in the future.  He noted she had difficulty with the normal household duties and gardening was limited, otherwise she would be able to perform normal activities of daily living.

150     Having seen the video surveillance of 7 April 2016, 20 and 23 April 2010 and 16 and 30 December 2010, Mr Brearley thought it certainly did appear the plaintiff would be capable of doing some work, at least part-time.  If she were able to find suitable employment, she would need to start on a graduated return to work program; however, Mr Brearley did not believe there was any realistic probability that the plaintiff would be able to obtain suitable employment when a history of injury, age and work experience were taken into account.

151     Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff on 29 April 2016.

152     The plaintiff told Dr Slesenger her back pain persisted at levels of 6 to 9 out of 10, radiating to her buttocks and the back of her right leg.  Her symptoms of neck and bilateral shoulder pain persisted at a moderate to severe level, 6 to 8 out of 10.

153     The plaintiff told Dr Slesenger she was taking Panadeine Forte, two tablets alternative dates, and Nurofen as required.

154     Dr Slesenger thought the nature of the plaintiff’s injury condition was aggravation of degenerative disease of the lumbar spine, Chronic Pain Disorder, mechanical injury to the cervical spine with radicular symptoms, but no evidence of radiculopathy and psychological impairment, although he noted that was outside his area of expertise.

155     Dr Slesenger was satisfied the occupational exposures were a plausible cause of the plaintiff’s impairment.  He thought she had a theoretical capacity at work, with sedentary duties only, sitting and standing, as required, four hours a day, three days a week, no over shoulder reaching, no repetitive neck or shoulder work and no repetitive twisting or bending.  In his view, she would require ongoing conservative treatment.

156     Dr Slesenger considered the plaintiff could not return to her pre-injury duties as the manual handling and the posture requirements were outside her current capacity limits.  Given the plaintiff’s past education, training and occupation experience, he considered she was unlikely to be able to return to work performing suitable alternate duties.

157     Dr Slesenger noted the plaintiff advised she had reduced some of her domestic tasks, including heavy housework, driving and general cleaning, since she was unable to complete those tasks as they aggravated her symptoms.

158     Mr Mohammed Awad, neurosurgeon and spinal surgeon, examined the plaintiff in July 2016.

159     The plaintiff’s current symptoms were ongoing lower back pain with pain radiating down the left leg.  That pain was of varying degrees and could be anywhere between 4 out of 10 to 8 out of 10, 10 being severe pain.  She also had ongoing cervical spine pain radiating to the shoulder of varying degrees which could be anything from 3 to 4 out of 10 through to 8 to 9 out of 10.  She described the pain as debilitating at times and it stopped it her from doing normal daily duties.

160     The plaintiff told Mr Awad she was taking oral medication in the form of Panadeine Forte and non-steroidal anti-inflammatory drugs (NSAIDs).  She was having regular physiotherapy, home exercise and regular walking.  She was attending psychological sessions every six to eight weeks.

161     On examination, there was no subjective numbness at rest, but some numbness on straight leg raising in the right L5 distribution.  There was reasonable flexion to about 40 degrees and a very tender lumbar spine to palpation.  Extension was reasonable and flexion was more painful than extension.  There was normal power throughout the lower limbs and normal reflexes.

162     Mr Awad thought the plaintiff presented with aggravation and acceleration of lumbar spondylosis and aggravation of cervical spondylosis, to which work was a significant contributing factor.

163     Mr Awad considered the plaintiff had a physical capacity, in theory, to undertake extremely sedentary work several hours per day, several days a week, if a suitable job was available.  However, in practice, taking into account her age, education and training skills and work experience, as well as the nature and severity of her work related spinal condition, he thought it would be extremely unlikely the plaintiff would be able to procure suitable employment and, if she did, it would be extremely unlikely she would be able to carry out this in a reliably consistent fashion.  He considered her total incapacity for work was likely permanent.

164     In Mr Awad’s opinion, the plaintiff had a very limited capacity to work at present, with restrictions on no more than two hours per day and nor more than two to three days a week.  There would also be limitations on no lifting more than 3 to 5 kilograms, and certainly no rotation or twisting movements, and no bending.  The employment would also require the plaintiff to fluctuate between sitting for no more than ten to fifteen minute periods at a time and, also, standing and mobilising for short periods of time.

165     Mr Awad also thought the effects of the plaintiff’s injury affected her lifestyle in the sense she was not able to perform her normal activities of daily living as she was doing prior to the onset of her symptoms.

166     Mr Awad recommended a full further pain management program and continuing analgesic medication as required.

167     Mr David Brownbill, neurosurgeon, examined the plaintiff initially in October 2014 and re-examined her in June 2016.

168     On initial examination, the plaintiff described constant pain in the back of the neck, with flare ups, and constant pain in the back of the head.  Pain across the top of the shoulders comes and goes and the area was very tender to touch.

169     The plaintiff also complained of pain down the outside of the upper arms which comes and goes.  There were pins and needles in both forearms that come and go.

170     The plaintiff indicated that she had fluctuating pain in the lower thoracic and lumbar regions extending to the sides.  She had constant pain in both legs involving the buttocks and upper thighs, with fluctuations and flare-ups.  She had pain in the upper chest going to the front of her chest, with troubled breathing, which comes and goes.

171     The plaintiff described pain in the front of the abdomen, for example when resting it against a sink.  She felt a pulling feeling in her neck, extending down the arms when carrying things in either hand.  All the bones of the hips and neck ached in cold weather.

172     The plaintiff reported difficulty with sleeping at night because of pain, particularly with weather changes, and she had rotten headaches that come and go and can last several days a week.

173     On examination, Mr Brownbill noted that the plaintiff exhibited a demeanour of fluctuating anxiety, often referring to symptoms in florid terms with intermittent sighing. 

174     Mr Brownbill thought it likely the plaintiff had suffered soft tissue injuries to the structures about the lower back with the lumbar spine degenerative change aggravations giving rise to pain which had acted as the basis for her emotional reaction.  He considered the plaintiff now had features of a Chronic Pain Syndrome. 

175     On re-examination in June 2016, there was restriction of cervical spine movements and essentially full range of lumbosacral spine movements without objective neurological abnormality of the limbs.  There were no signs of radiculopathy or myelopathy.

176     Mr Brownbill thought, on the examination findings, the plaintiff’s condition had stabilised, and was unchanged from that at the previous interview.

177     Mr Brownbill repeated his comments about the plaintiff’s demeanour during the previous interview. 

178     Mr Brownbill considered the plaintiff probably sustained aggravation of lumbar spine degenerative changes, giving rise to local pain and, perhaps, lower nerve root irritation and leg pain.  He, again, considered she had also developed an emotional reaction component to that pain (noting the assessment of which lies outside the neurological province). 

179     On the information provided, Mr Brownbill again considered that the plaintiff’s employment was a materially contributing factor to the aggravation of lumbar spine degenerative changes and the initial onset of pain.

180     As Mr Brownbill opined on the first examination, from a physical neurosurgical point of view, the plaintiff would be capable of attempting a return to work plan that avoids heavy lifting, full spinal mobility, repeated bending, or prolonged sitting or standing.  However, her overall medical condition including, also, the emotional reaction response and the widespread bodily pain, would prevent her from returning to any employment.  No specific treatment was indicated from a neurosurgical point of view and use of analgesics, particularly during flare-ups, was appropriate.

181     Mr Brownbill thought the prognosis was uncertain and it was not possible to state when, or if, the plaintiff would be able to return to her previous employment.  He noted her demeanour and responses throughout the interview indicated there had been a marked impairment of her lifestyle.

182     Mr Brownbill was provided with reports of surveillance dated 28 April 2011, 6 January 2011, 8 October 2014 and 1 June 2016.  The contents of those reports did not cause him to modify his earlier opinions.

183     Dr Peter Blombery, vascular surgeon, examined the plaintiff in August 2014. 

184     On examination, the plaintiff complained of pain at the back of her shoulders with neck stiffness radiating down the arms to the hands, more severe on the right than the left.  She also had lower back pain radiating into the hips, bilaterally, and down the legs.  She had headaches intermittently, which could last up to five days and she occasionally vomited with them.  She also noted numbness and tingling in the fingers of both hands.

185     On examination, there was a full range of movement in the neck and shoulder.  There was tenderness in the upper body and less down the upper aspect of the arm.  The plaintiff was tender over the mid portion and also over the paraspinal muscles bilaterally.  There was also tenderness in the lumbar spine.  There was full straight leg raising and no sensory disturbance in the legs.

186     Dr Blombery thought the heavy work the plaintiff was doing resulted in previously asymptomatic degenerative changes in the lumbar spine becoming symptomatic.  He considered the minor cervical spondylosis, with pain in the neck and shoulders, was caused by a Myofascial Pain Syndrome-type disorder, where there was sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli became interpreted by the cerebral cortex as being painful.

187     Given the symptoms had then persisted for four years or more, Dr Blombery thought the plaintiff’s prognosis for recovery was poor.

188     Dr Blombery noted both the problems in the shoulder girdle and neck, as well as lumbosacral spine, were triggered by the previously asymptomatic degenerative changes and by the development of a Pain Syndrome in the affected areas.

189     Dr Blombery diagnosed previously asymptomatic degenerative disease in the lumbosacral spine and Myofascial Pain Syndrome in the shoulder girdle and upper limbs.

190     Dr Blombery thought the plaintiff had no capacity to work as a consequence of the injuries because of the severity of the ongoing pain and the fact that activity using the arms, or weight bearing, made it worse.  He thought she had no capacity for work, given the ongoing pain that she had in her shoulder girdle, as well as in the lower back.

191     Dr Blombery considered the plaintiff required overall multidisciplinary therapy for chronic pain, best carried out in the setting of pain management.

192     The plaintiff was examined by occupational therapist, Dr Gary Davison, on behalf of the defendant in July 2015.

193     The plaintiff then reported the presence of widespread pain affecting almost all regions of her body.  She experienced frontal headaches and occipital neck pain with radiation down to the mid-back region and extending into the lumbar limbs bilaterally.  In the lumbo­sacral spine, there was generalised pain extending laterally to the hips and distally to the popliteal fossae and the anterior aspect of the knees bilaterally.  The pain was said to be present constantly, but varied in severity.

194     On examination, Waddell signs were positive for light touch and apparent spinal movement.  There was widespread tenderness to light touch.  The active range of cervical movement was globally restricted to two-thirds of the expected normal range, as was the case with the lumbo­sacral spine.  Neurological examination was unremarkable.

195     Dr Davison noted the plaintiff presented with a nine-year history of generalised spinal and bilateral upper and lower limb pain, together with sensory disturbance of non-anatomical distribution affecting the upper and lower limbs symmetrically.  Clinical examination revealed widespread myofascial tenderness.

196     Dr Davison thought the plaintiff’s symptoms could not be attributed to any specific structural pathology and she had a generalised Chronic Pain Syndrome with elements of fibromyalgia.

197     Dr Davison noted the plaintiff’s symptoms did not appear to have an organic basis, but the Medical Panel however determined otherwise, and their decision was binding.

198     Dr Davison considered the plaintiff did not have a capacity to return to pre-injury duties.  He considered she had a capacity for suitable employment subject to the following restrictions: commencing work at the rate of two hours per day on alternate days, three days a week; varying posture regularly and at will; avoiding frequent bending or twisting; avoiding manual handling greater than 4.5 kilograms in force or weight between mid-chest and mid-thigh height, and self-paced duty.

199     Noting the plaintiff had not worked in any capacity since 2011, Dr Davison thought the prospect of a resumption of employment was poor.  He concluded the plaintiff’s current presentation does not have an organic basis, and a Chronic Pain Syndrome has developed.  He annexed a symptom chart completed by the plaintiff on which she indicated pain on most levels of her body.[63]

[63]The plaintiff confirmed the accuracy of that diagram in cross-examination

Surveillance

200     In December 2010, there was 20 hours of surveillance and 19 minutes of film.  In March-April 2011, there was 17 hours of surveillance and 13 minutes of film.

201     In May 2016, there was 15 hours of surveillance and nearly 5 minutes film.  In August 2016, there was 15 hours of surveillance and 1.5 minutes of film.[64]  

[64]T92

The Defendant’s medical evidence

202     Clinical notes from Dr Wegrzynowski at St Albans Medical Service detailing the plaintiff’s treatment from 2013 did not mention any prescription of painkilling medication.

203     Mr McGlynn’s treatment records did not show any attendances for physiotherapy treatment from October 2011 to September 2013.   

Medico-legal evidence

204     The plaintiff was examined by Dr Baynes, occupational physician, in September 2011, having been earlier seen in February 2011.

205     Dr Baynes diagnosed a Chronic Pain Syndrome associated with generalised pain affecting mainly the lower back and lumbar region, as well as the thoracolumbar and upper thoracic region, with referred pain to both legs and occasionally, the shoulders.  There was no objective evidence of radiculopathy on examination.  There was radiological evidence of degenerative disc and facet-joint disease affecting L3-4 to L5.

206     Dr Baynes did not believe the plaintiff was fit for pre-injury work but was fit for alternate duties, with no lifting of greater than 5 kilograms and no lifting from below knee height or above shoulder height.  He thought she should not be involved in forceful pushing or pulling and should not work with constrained postures.  In his view, continuing deli work would aggravate the condition in the future.  He thought a Return to Work Plan of February 2011 was reasonable. 

207     Dr Baynes believed an assessment by psychiatrists would be appropriate to determine whether there was in fact an Adjustment Disorder impacting upon the plaintiff’s symptoms.

208     Having been shown the DVD surveillance footage of the plaintiff in April 2011, Dr Baynes thought her presentation fitted with his examination as to her capacity for light work.

209     Dr Dush Shan, psychiatrist, examined the plaintiff in February 2013 for the purposes of an AMA assessment. 

210     Dr Shan concluded there was no psychiatric diagnosis applicable at the present time.  As far as he could see, the plaintiff’s perception of her physical symptoms was not explained by a psychiatric disorder diagnosed such as a pain disorder.  Instead, it seemed she had some physical symptoms, which may or may not be degenerative, and she was understandably very concerned and anxious about that and the dispute over relationship to work.

211     Dr David Barton, consultant occupational physician, examined the plaintiff in April 2016. 

212     The plaintiff told him that she did not believe she was any better since ceasing work.  She had fairly constant neck pain and tightness that spread out towards both shoulder blades into the upper thoracic spine, with generalised tenderness into that area, more troublesome on the right.

213     The plaintiff also described low-back pain, worse again on the right.  The symptoms were generally made worse with sitting and standing still.  She described generalised numbness and pins and needles in both arms and legs.  She had trouble sleeping and her pain threshold was really low.

214     Dr Barton thought, on clinical examination, there was not a lot to find.  There was certainly no clear evidence of any significant physical problems that could account for the plaintiff’s long history of persisting symptoms.  In his view, there were several findings that did not fit with a straightforward physical problem and suggested a degree of overlay was playing the part.

215     Dr Barton thought the plaintiff had a fairly strong illness belief and perception of disability.  She believed she had been injured from her repetitive work and that this problem was likely to continue indefinitely.

216     Dr Barton thought the plaintiff may have developed some mild musculoskeletal symptoms in the neck and back area related to work but they had persisted for somewhat longer than would be expected because of a degree of functional overlay and a strong illness belief.

217     There were several noteworthy findings, including increase in symptoms with axial loading, with widespread areas of tenderness and the lack of any clear objective evidence of any ongoing physical problem that pointed towards a degree of functional overlay.

218     Dr Barton certainly believed the plaintiff had a capacity for suitable duties.  He noted she had worked in the retail clothing industry, as well as in a deli at supermarkets, and he could see no reason why she could not do similar work with some minor lifting limits.  He believed she needed simple reassurance and encouragement to become more physically active.

219     Dr Barton considered the plaintiff could complete all jobs suggested by the vocational assessor.

220     Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in July 2016. 

221     The plaintiff told him she noted ongoing low-back pain, neck pain and right shoulder girdle pain.  She took Nurofen Plus for pain and if she had a bad headache, she took Panadeine Forte.  Her pain was constant and interfered with her sleep. 

222     Mr Dooley thought the plaintiff suffered an aggravation of underlying degenerative disease of the lumbar spine and may have sustained a right-sided L4-5 disc prolapse.  He thought it feasible that she sustained a soft tissue injury to her neck during the course of her work

223     Mr Dooley thought there were no objective signs of abnormal illness behaviour on clinical examination.  He considered the constancy and intensity of the plaintiff’s ongoing pain and her reported restrictions were greater than one would expect to see for her organic condition.

224     From an orthopaedic viewpoint only, Mr Dooley believed the plaintiff would have a physical capacity to carry out suitable work.  He considered she would have a physical capacity to carry out light physical work and clerical duties in roles such as sales demonstrator, retail supervisor and data entry operator, which would be within her physical capacity.

225     From an orthopaedic viewpoint only, Mr Dooley would expect the plaintiff to notice some ongoing intermittent back pain and neck pain.  He would not expect her orthopaedic condition to deteriorate in time.

226     Having been provided with the 2016 Recovre report, Mr Dooley thought, from an orthopaedic point of view, the plaintiff would have a physical capacity to carry out the identified positions.

227     In terms of working as a hand packer and product examiner, Mr Dooley thought the plaintiff would have difficulty sitting in the one position for a prolonged period of time and she would need to be able to get up and move around.  In relation to sales work, she would not be able to carry out any heavy lifting and would not be able to engage in regular bending, manoeuvring et cetera.

Vocational evidence

228     A 130-week Vocational Assessment Report was prepared by Ors Group in 2012.

229     Following a consideration of the plaintiff’s transferrable skills, education, employment history and medical restriction, the following options were identified in the course of the vocational assessment:

§  Sales demonstrator

§  Retail supervisor

§  Factory process worker light duties

§  Data entry operator.

230     Janette Ash, injury management consultant from Recovre, provided a Suitable Employment Report in July 2016. 

231     Ms Ash described two actual job roles that had been assessed and considered to be vocationally and physically suitable for the plaintiff.

232     The first role of sales assistant ($800 gross per week) was with an optical products retailer in Werribee.  The second was as a packer ($800 gross per week) with a natural foods distributor.

233     Annexed to the report were photographs of the various tasks required in those jobs and a statement of the physical demands thereof.  The job of product examiner was also suggested as within the plaintiff’s capacity.

Overview

234     The application pursuant to ss(a) was brought in relation to the whole of the spine pursuant ss(a).  The ss(c) application was withdrawn at the start of the hearing when counsel for the plaintiff explained that psychological treatment was for family difficulties, rather than work difficulties, as the plaintiff’s psychologist, Ms Roglic, confirmed.[65]

[65]T3

235     The main issues in this case were whether the plaintiff’s condition has a substantial organic basis or organic consequences that are “serious” and her capacity, if any, for suitable employment.

236     In relation to the second issue, counsel for the plaintiff relied on Dr Wegrzynowski’s view that the plaintiff has no retained work capacity.[66]  It was submitted the bulk of evidence was that the plaintiff had either no work capacity, or a very minimal one, which was unlikely to be productive of employment.  Even Dr Davison, who examined the plaintiff on the defendant’s behalf, considered the prospect of resumption of employment was poor.[67]

[66]T8

[67]T9

237     It was submitted that the case essentially is that the plaintiff has no real computer skills and she has only worked in very basic manual work in recent years.  Years ago she worked in sales, when there was not any requirement for computer skills.  She does not have current work capacity given her 5-kilogram lifting limit.[68]

[68]T9

238     While it was acknowledged the plaintiff had endured a lot of pain over many years, counsel for the plaintiff submitted the heart of the case was really her loss of earning capacity.[69]

[69]T11

239     The primary submission on the defendant’s behalf was that any present spinal impairment lacked a substantial organic basis and that any organically-based consequences were not “serious”, raising the issues in Meadows v Lichmore Pty Ltd.[70] 

[70]Supra

240     A Chronic Pain Syndrome had been diagnosed by even those medical practitioners relied upon by the plaintiff. 

241     Issues of “range” and the plaintiff’s capacity for suitable employment were also in dispute.[71]

[71]T11

Credit

242     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[72]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[72](2010) 31 VR 1 at paragraph [12]

243     Counsel for the defendant submitted there were three credit issues that were significant in this case.

244     Firstly, the plaintiff had “profound difficulties” with her sons and husband about which her affidavits and histories to psychiatrists were silent.[73]  The plaintiff’s evidence in cross-examination that there were no such problems was not credible given her son Tony’s problems with Attention Deficit Disorder and her other son, Ivan, having been assaulted and requiring facial surgery.[74] 

[73]T69

[74]T71

245     It was submitted that the plaintiff was at pains to say she saw Ms Roglic for her spinal pain but, really, Ms Roglic’s report indicated that family issues were the focus of counselling sessions.  In these circumstances, the plaintiff was not candid in relation to these issues which had obviously deeply affected her.[75]

[75]T71

246     A second credit issue was the plaintiff’s confident assertion that she had had ongoing physiotherapy since her injury, when there had been in fact a gap in treatment for over a year.[76] 

[76]T72

247     Finally, it was submitted that the plaintiff lied to the Court in relation to the prescription of Panadeine Forte – a lie she persisted with until she could see she was not going to be able to get away with it.[77]  The recently provided report from her general practitioner was telling, as there was no mention of prescription of Panadeine Forte to the plaintiff.[78]

[77]T74

[78]T75

248     It was submitted these were very significant credit issues against the plaintiff.[79]

[79]T74

249     In response, counsel for the plaintiff submitted the surveillance film was nebulous and did not show anything much at all.[80]

[80]T92

250     Further, it was submitted the plaintiff had made an innocent mistake about the extent of her physiotherapy treatment. 

251     In relation to the issue of medication, it was submitted that from early on in her evidence, the plaintiff mentioned she was taking her husband’s prescription medication.  That medication had side effects, which clearly limited the plaintiff’s intake.[81] It was open to the defendant to cross-examine Dr Wegrzynowski and the plaintiff’s husband as to this medication issue and it chose not to do so.[82]

[81]T93

[82]T96

252     In my view, the plaintiff was not a very reliable witness, particularly in relation to her evidence about her medication intake and the extent of the problems she has experienced with her sons which she discusses with Ms Roglic.  Further, I believe at times, the plaintiff overstated the extent and level of her pain and restrictions.

253     I accept however, the plaintiff was mistaken as to the extent of previous physiotherapy treatment.  Further, in my view, the level of activity shown on the various surveillance films was not inconsistent with the plaintiff’s evidence as to her spinal pain and resultant restrictions.

An organic basis for the claimed consequences?

254     In Meadows v Lichmore Pty Ltd,[83] Maxwell P set out the two-step manner in which I ought to approach my task in this case:

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[83](supra) at paragraphs [21]-[22].  This test as also applied in Fokas v Staff Australia Pty Ltd (2013) VSCA 230 at paragraph [5] (per Nettle JA)

255     Counsel for the plaintiff submitted there was an “overwhelming” substantial organic basis for the plaintiff’s present spinal condition.  Further, whilst there was almost without doubt a resultant psychological reaction, the substantial basis was organic, with medical practitioners of the view that the plaintiff suffers an organically-based Pain Syndrome.[84]

[84]T95

256     It was submitted, closely looked at, the Pain Syndromes referred to by medical practitioners were organically based.[85]

[85]T95

257     As I indicated during the hearing, it was a very “brave” submission on the part of counsel for the plaintiff that the plaintiff’s present spinal impairment is substantially organically-based.[86]

[86]T95, T102

258     Mr Awad is the only practitioner whose diagnosis was solely physically based, finding the plaintiff was suffering from aggravation and acceleration of lumbar and cervical spondylosis. 

259     All other medical practitioners considered there to be elements of a Chronic Pain Syndrome present, whether physical or psychiatric, with Dr Davison alone in his view that the plaintiff’s symptoms did not appear to have an organic basis.

260     In those circumstances, I must then undertake the second limb of the test in Meadows v Lichmore[87] and consider whether there is an organic injury which can be identified that results in consequences that are “serious”.

[87]Supra

261     Counsel for the defendant submitted that it was clear the plaintiff was suffering from functional overlay or a Chronic Pain Syndrome.[88]  In those circumstances, the plaintiff was required to disentangle the organic from non-organic and the consequences thereof.  It was submitted the plaintiff’s material fell woefully short of that exercise.[89]

[88]T75

[89]T79

262     The following medical opinion was relied upon in support of this submission.

263     Dr Baynes, psychiatrist, found generalised spinal pain and diagnosed a chronic pain syndrome in 2011.[90]

[90]T87

264     In 2011 and 2012, Dr Thomas described the plaintiff’s complaints as fairly diffuse and widespread and did not think she was suffering from fibromyalgia.[91]

[91]T87

265     Dr Shan thought there was a strong illness belief when he saw the plaintiff in February 2013.[92]

[92]T88

266     The 2013 Medical Panel determination that the plaintiff had no current work capacity related to both the lumbar spine and a psychological disorder.[93] 

[93]T75

267     Mr Brearley in 2014 diagnosed a Chronic Pain Disorder, partly psychogenic in origin.  On re-examination in 2016, he also noted a Chronic Pain Disorder appeared to be of prime importance in the plaintiff’s symptomatology.[94]

[94]T78

268     Dr Slesenger, who saw the plaintiff in May last year, whilst diagnosing a Chronic Pain Disorder and mechanical back pain, did not articulate the contribution of each of these conditions to the plaintiff’s incapacity for work.[95]

[95]T81

269     Mr Brownbill took a history from the plaintiff of pain all over her body with inconsistencies on presentation, diagnosing aggravation of degenerative change and features of a Chronic Pain Syndrome.  It was submitted the plaintiff’s presentation to Mr Brownbill was very inconsistent.[96]

[96]T83

270     Dr Blombery was not of much assistance in relation to the issue, as he had only seen the plaintiff once in 2014 and cannot really shed much light on her current position.[97]

[97]T85

271     Dr Wegrzynowski s 2016 report was criticised, in that there was no disentanglement undertaken of the physical and psychological basis for the plaintiff condition.  Further, that report was a replication of her earlier report, with a few new paragraphs tacked on at the end.  It was submitted that fell far short of a proper general practitioner’s report.  This was a significant issue in the present case where there is no specialist treater and the application has been run on medico legal opinion.[98]

[98]T86

272     Dr Weissman thought the main diagnosis was a Chronic Pain Disorder associated with psychological factors and a general medical condition.[99]

[99]T87

273     Dr Davison’s found Waddell’s signs on examination and considered there was no organic basis for the plaintiff’s symptoms.[100]

[100]T87

274     Mr Dooley thought the plaintiff’s symptoms were greater than would be expected for the pathology.[101]

[101]T89

275     Mr Awad was on his own, not finding the presence of any Chronic Pain Syndrome in the plaintiff’s current presentation.[102]

[102]T80

276     In response, counsel for the plaintiff made the following submissions.

277     Correctly viewed, there was a substantial organic basis to the plaintiff’s ongoing spinal complaints.  If that was not established, there was a disentanglement with the predominance of organic injury present from the first, when the two disc prolapses were identified.  The plaintiff’s spine had been injured and had never fully recovered and it was submitted that she had a serious injury under both heads.[103]

[103]T110

278     There has been an organic injury treated by the plaintiff’s general practitioner, extensive physiotherapy from Mr McGlynn, gym, exercises, Dorset and ongoing medication.[104]

[104]T99

279     The only other treatment received by the plaintiff has been counselling from Ms Roglic, at the “coal face”, who has described intra-family issues as the focus of her treatment.  It was submitted the whole thrust of her treatment of the plaintiff had not been about psychologically mediated pain from a WorkCover injury but rather related to family issues.[105]

[105]T90

280     It was submitted that the principal diagnosis made by the Medical Panel was organic in nature, namely L4-5 and L5-S1 disc disruption.[106]

[106]T102

281     Mr Brearley, following his most recent examination in 2016, again diagnosed mechanical lumbar back pain secondary to L4-5 and L5-S1 intradisc rupture with disc prolapse.  Whilst on earlier examination he thought there was a Chronic Pain Disorder partly psychogenic in origin, on re-examination, he made no mention of any psychogenic factors in his second diagnosis of a Chronic Pain Disorder.  Accordingly, the Chronic Pain Disorder did not have a psychogenic basis.[107]

[107]T104

282     Mr Awad does not point to any non-organic factors at all.[108]

[108]T104

283     It was submitted Dr Slesenger’s second diagnosis of a Chronic Pain Disorder was organically based.  His first diagnosis of aggravation of degenerative disease of the lumbar spine and third diagnosis of mechanical injury to the cervical spine were obviously organically based.

284     It was submitted that had the chronic pain diagnosis been non-organic, Dr Slesenger would have included it later in his list of conditions from which he believed the plaintiff was suffering under psychological impairment, which he noted was outside his area of expertise.[109]

[109]T105

285     Mr Brownbill thought the plaintiff, on probability, sustained aggravation of lumbar spine degenerative changes and now had features of a Chronic Pain Syndrome.  He specifically excluded from his opinion, matters outside his expertise, so his finding of a Pain Syndrome must be organic.[110]

[110]T105

286     Mr Blombery’s diagnosis of a myofascial syndrome was clearly organic.[111]

[111]T106

287     It was submitted Dr Barton made the wrong diagnosis.  Further, whilst he found Waddell’s signs on examination, he had been asked to look for them.[112]

[112]T107

288     Mr Dooley accepted there was an organic injury and found no objective signs of abnormal illness behaviour on clinical examination.[113]

[113]T108

289     I am satisfied that counsel for the plaintiff in his analysis of the medical evidence from treaters and medico legal examiners has successfully disentangled the physical from psychological factors in the plaintiff’s current presentation and that there is an organic basis for the plaintiff’s present complaints.

290     The plaintiff’s spinal condition has been treated as an organically-based injury.  Psychologist, Ms Roglic, is not dealing with pain focus but family issues, and there has been no psychiatric referral.

291     I note that the two medico-legal psychiatrists who have provided reports differ in their diagnosis. 

292     In 2013, Dr Shan thought the plaintiff’s perception of physical symptoms was not explained by a psychiatric diagnosis such as a Pain Disorder.  Instead, it seemed that she had some physical symptoms that may or may not be degenerative.

293     More recently, in 2016, Dr Weissman diagnosed a Chronic Pain Disorder associated with psychological factors, and a general medical condition.

294     Taking into account all the evidence, I am satisfied that even though there are clearly non-organic factors in the plaintiff’s current presentation, there is an organic injury at the time of hearing in relation to which there are continuing consequences.

Are these organically based consequences “serious”?

Pain

295     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[114]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors) … .”

[114](supra) at paragraph [11]

296     Whilst the plaintiff now complains of widespread pain, since 2006 she has experienced constant lumbar pain as a consequences of her work duties and later difficulties have arisen with upper back and neck pain.

297     The plaintiff’s worst pain at present is in her cervical spine and spreads across her upper back and shoulders and causes her to suffer severe headaches on a regular basis.

298     The plaintiff continues under the care of her general practitioner.  A number of treatment modalities have been undertaken but have not provided any lasting benefit.

299     Whilst the plaintiff does not obtain prescription medication from her own doctor and she has given varying accounts of the level of her medication intake,[115] I accept that she continues to regularly take her husband’s prescribed medication for pain relief.

[115]T77 – history to Mr Brearley in 2016: occasional Panadeine Forte for headaches

300     Whilst counsel for the defendant submitted there was only mild pathology and a suggested MRI scan had not taken place,[116] Mr Dooley thought the plaintiff may have sustained a right sided L4-5 disc prolapse due to her heavy work duties.

[116]T75

301     As a result of her spinal pain, the plaintiff has difficulty with repeated bending, lifting other than very light weights and maintaining sustained postures.  Her evidence as to these difficulties was confirmed by her husband, whose evidence was unchallenged.[117] 

[117]T98

302     There have not however been findings on clinical examination of significant restricted spinal movement or very limited straight leg raising.[118]

[118]See the 2011 examinations with Dr Baynes, the 2014 and 2016 examinations with Mr Brearley and the 2011 and 2012 examinations with Dr Thomas

303     The plaintiff persevered at work with the defendant for nearly five years after her initial injury until her employment was terminated in February 2011.  During that time, she sometimes required time off work as a result of her injuries and she was never able to return to her full pre-injury duties which were quite physical.

304     There is no real dispute amongst medical practitioners that as a result of her work-related spinal pain, the plaintiff, now aged fifty-six, is no longer able to undertake the strenuous manual handling activities which were part and parcel of her job with the defendant.

305     I accept that but for her injury, the plaintiff would have continued working to sixty-five, as did her friend, Nadia, who worked with her in the Safeway deli.

306     Taking into account all the evidence, I am satisfied that as a result of her spinal pain and resultant limitations, the plaintiff does not have a capacity for pre-injury duties or unrestricted manual work.

307     This is a serious consequence for a fifty-six year old plaintiff whose recent work history has been only in supermarket work.  She has not worked in clothing retail for many years, having started work with the defendant in 2002 after she was unable to get work in retail.

308     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

309     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings. 

310     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

311     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

312     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

313     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. 

314     Counsel agreed that the appropriate “without injury” earnings figure was around $30,000 – 60 per cent of which is about $24,000[119] – with the plaintiff having worked 29 to 31 hours per week with the defendant.[120]

[119]T10

[120]T5

315     Counsel for the plaintiff submitted the plaintiff has no capacity, or a very limited capacity, for suitable employment.

316     Counsel for the defendant submitted the thrust of all the evidence was the plaintiff had such capacity and those who had considered this issue from a physical point of view thought she had a capacity for lighter duties.  The plaintiff could work in retail where she had worked before.  Also, she could work in light packing or in an optician’s shop.

317     Counsel for the defendant submitted that the plaintiff only had to work two-and-a-half to three days a week to earn in excess of $24,000 in the jobs suggested and therefore she had not suffered the requisite loss.[121]

[121]T90

The Plaintiff’s evidence

318     The plaintiff believes that she would not have the capacity to do any of the jobs suggested as being suitable.  She does not consider she would be a reliable, punctual employee because of her pain and fatigue caused by her inability to sleep.

319     The plaintiff does not have any computer skills and she encountered problems in 2002 when trying to get a job in clothing retail because of this.  She would therefore have difficulty working in an optician’s shop.  Her poor literacy skills would also be a barrier to such work.

320     The plaintiff does not have any training or experience to work as a sales demonstrator, retail supervisor or data entry officer.

321     Because of her physical restrictions, the plaintiff could not work in more manual roles such as a hand packer with her lifting restriction of 5 kilograms.  She would be unable to perform any manual task on a repetitive basis. 

322     But for her spinal pain, the plaintiff would love to still be working.

Medical evidence of physically-based work capacity

323     Whilst of the view the plaintiff does not have current work capacity, and she accordingly continues to receive weekly payments, the Medical Panel based this opinion on both physical and psychiatric grounds.

324     Dr Wegrzynowski considers the plaintiff is unfit for any duties.  Whilst she thought the plaintiff had developed a Chronic Pain Syndrome, she confirmed the plaintiff continues to suffer chronic neck and back pain directly related to her work with the defendant.

325     Mr Brearley, in 2016, thought, because of her back pathology, the plaintiff could not do any manual work and that whilst she could do administrative work, she had no training in that area.  He considered there was no possibility of the plaintiff being offered paid employment in view of her injuries and ongoing disability.

326     In Dr Slesenger’s view, the plaintiff had a theoretical capacity for sedentary duties four hours per day three days a week but considered, because of her past education, training and occupation experience, she was unlikely to return to performing suitable employment.

327     Mr Awad thought it would be extremely unlikely the plaintiff would be able to procure suitable employment and, if she did, it would be extremely unlikely she could be able to carry it out in a reliably consistent manner.  Her present work capacity was for significantly restricted work to not more than two hours per day and not more than two to three days a week.

328     From a physical neurosurgical point of view, Mr Brownbill thought the plaintiff would be capable of attempting a return to work plan that avoided heavy lifting, full spinal mobility, repeated bending or standing or prolonged sitting or standing.

329     Dr Blombery thought the plaintiff had no capacity to work as a consequence of her injuries.

330     Although he thought there was no organic basis for the plaintiff’s symptoms, Dr Davison thought she had a capacity for suitable employment with significant restrictions commencing work at two hours per day three days a week.

331     Dr Barton was in the minority with his more optimistic view of the plaintiff’s work capacity and thought she could do the jobs suggested by the vocational assessor.  He also thought she could do her pre-injury work with some minor lifting limits.

332     Mr Dooley considered the plaintiff had a capacity for light physical work but that she would have difficulty with the suggested roles of hand packer, product examiner and sales work.

333 Taking into account the plaintiff’s evidence, the medical evidence and the factors set out in s5 of the Act, I am satisfied that the plaintiff, on a physical basis alone, does not have the capacity to earn in excess of $24,000 per annum.

334     The plaintiff has never worked in a sedentary occupation.  She has poor English literacy skills.[122] 

[122]T97

335 Essentially, the factors set out in the definition of “suitable employment” in s5 of the Act were unchallenged. The plaintiff is now aged fifty-six. Her work experience is limited and her experience in retail is outdated. As a result of her back condition, she is only able to do very light work and she has no experience in office or administrative tasks. Further, the plaintiff has now been out of the workforce for over five years.[123]

[123]T98

336     In my view, the plaintiff would not be a punctual or reliable employee given the fluctuating nature of her symptoms which are at times severe.

Subsection (g)

337     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

338     Counsel for the defendant submitted that the onus under ss(g) is heavy and the plaintiff has “just done nothing”.[124]

[124]T91

339     In response, counsel for the plaintiff pointed out that the plaintiff worked for four years with the defendant post injury so it could not be said she did not try to rehabilitate herself.  She did all that was possible to continue working in that job until her employment was terminated in 2011.[125]

[125]T97

340     In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

341 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[126] and Advanced Wire & Cable Pty Ltd v Abdulle.[127]

[126][2009] VSC 454 at paragraph [147]

[127][2009] VSCA 170

342     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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