Milner v Northern Metropolitan Health Service
[2013] VCC 1997
•16 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-00119
| KATHLEEN ANN MILNER | Plaintiff |
| v | |
| NORTHERN METROPOLITAN HEALTH SERVICE | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May and 12 and 13 August 2013 | |
DATE OF JUDGMENT: | 16 December 2013 | |
CASE MAY BE CITED AS: | Milner v Northern Metropolitan Health Service | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1997 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – two separate incidents – injury to the lumbar spine – injury to the neck, left shoulder, right shoulder and aggravation to the low back – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring | Ryan Carlisle Thomas |
| For the Defendant | Mr T Ryan | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injuries suffered by her for two separate incidents, on 3 January 2006 when lifting a patient, and 15 March 2007, when opening a fire door, in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity in respect to each of the two separate incidents.
3 The plaintiff brings the application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, serious is defined as meaning:
“(a)permanent serious impairment or loss of body function”.
5 In the incident on 3 January 2006, the loss of body function relied upon is the lumbar spine.
6 In the incident of 15 March 2007, the loss of body functions relied upon are:
(i) the neck;
(ii) the left shoulder;
(iii) the right shoulder; and
(iv) aggravation to the back.
7 In respect to the loss of body functions suffered on 15 March 2007, namely the neck, left shoulder, right shoulder and aggravation to the back, each is to be examined separately and the impairment consequences of each injury must be delineated. The impairment consequences cannot be accumulated because the loss of body functions affect four body parts. Each loss of body function has to satisfy the requirements of a serious injury in its own right rather than in combination with the other injuries.
8 The plaintiff relied upon two affidavits, sworn 11 September 2008 and 17 April 2013. In addition, the plaintiff relied upon an affidavit of her husband, Bernard Milner, sworn 17 April 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s evidence nor her affidavits. In my reasoning I will refer to the relevant evidence of the plaintiff and Mr Milner. In addition, both parties relied on medical reports and other medical material which were tendered in evidence. I have read all the tendered material.
Relevant legal principles
9 The plaintiff is required to prove that she suffered a “serious injury” within the meaning of the definition of that term in s134AB(37) of the Act in respect to each of the two separate incidents. Where a number of medical conditions exist, the plaintiff must disentangle them, as required by Lu v Mediterranean Shoes Pty Ltd & Ors.[1]
[1][2000] VSCA 65
10 This application raises similar issues to those addressed by the Court of Appeal last year in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[2] There, the Court of Appeal said that the task requires:
[2][2012] VSCA 60
(i) identification of the impairment consequences of each injury;
(ii) determination of whether the second injury qualified as a serious injury;
(iii) a before/after comparison between the plaintiff’s condition before the second injury and after the second injury, to assess the additional impairment; and
(iv) judgment of whether each injury satisfied the serious injury test in its own right, as they cannot be combined.[3]
[3](Supra) at [30]-[35]; Petkovski v Galletti [1994] I VR 436
11 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[4]
[4]Section 134AB(19)(a) of the Act
12 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant after 20 October 1999;[5]
[5]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[6]
(c) “the consequences” to the plaintiff of each of her impairments must be considered in relation to “pain and suffering” or “loss of earning capacity” and must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[7]
[6]Barwon Spinners (supra) at paragraph [33]
[7]Section 134AB(38)(b) and (c)
13 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[8]
[8]Section 134AB(19B) and 38(e) of the Act
(a) that at the date of hearing she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[9]
[9]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[10] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[11]
[10]Section 134AB(38)(e)(ii) of the Act
[11]Section 134AB(38)(g) of the Act
14 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[12]
[12]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
15 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
16 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[13]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[14]
[13][2009] VSCA 181
[14](supra) at paragraph [42]
17 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[15]
[15]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
18 The test for “serious”, as set out in paragraph (b), (c) and (d) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
19 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[16]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[17]
[16]Section 134AB(38)(j) of the Act
[17] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
20 Counsel for the defendant submitted that the issues were as follows:
(a) Whether the plaintiff sustained injury to her neck and/or her left shoulder in compensable circumstances in the second incident;
(b) Whether, having regard to the physical consequences of the compensable injury, the plaintiff is presently incapable of earning more than 60 per cent of her pre-injury earnings in suitable employment. The plaintiff has a reduced capacity for work which occurred in non-compensable circumstances.
21 Counsel for the defendant conceded that as a result of the back injury, the plaintiff probably suffered consequences by way of pain and suffering, but not consequences in respect of loss of earnings.
22 Counsel for the defendant submitted that there are other medical conditions that impact on the plaintiff’s pain and suffering consequences and on her earning capacity. I do not accept this submission. The other health issues the plaintiff suffers have no bearing on the injuries the subject of this application or on their consequences. I have not considered any consequences of those health issues in determining this application.
Investigations
23 On 16 January 2006, an x-ray of the thoracic spine showed:
·There is a slight scoliosis to the left.
·Spondylitic lipping and separate ossicles of bone anteriorly are noted in the lower thoracic region from T6−T7 to T9−T10.
·No focal bone pathology is evident.
·No bony injury is evident.
24 On 4 April 2006, a CT scan of the lumbosacral spine showed broad-based central L5−S1 disc bulge.
25 On 2 August 2006, an MRI scan of the whole spine showed mild multi-level cervical, thoracic and lumbar spondylosis, and at L4-5 and L5-S1, mild bilateral subarticular recess canal stenosis without neural compromise. At L5-S1, minor impingement of both exiting L5 nerve roots noted.
26 Prominence of the central canal within the thoracic cord is most likely developmental in nature and is unlikely to be of current clinical significance. No features to suggest an aggressive cord lesion.
27 On 26 June 2007, an ultrasound of both shoulders showed subdeltoid bursitis is seen bilaterally. No other finding of note is seen.
28 On 28 June 2007, a CT scan of the cervical spine reported:
“At C5/6 moderate disc space height loss with disc bulge just contacting the anterior thecal sac with only very minimal central canal narrowing. Uncovertebral osteophyte encroachment upon the neural foramina at this level, slightly more prominent on the left side. At C6/7 and C7/T1 no significant degenerative disc disease or central canal compromise.”
29 On 29 June 2007, a CT scan of the thoracic spine concluded:
“Minor changes only are identified.”
30 On 22 April 2008, an MRI scan of the lumbar spine concluded:
“Previous L5 laminectomy. Minor broad-based disc bulge at L5−S1 causing no neural compression. No abnormal enhancement post contrast.”
31 On 12 January 2010, an MRI scan of the whole spine concluded:
“1Cervical spondylosis. Findings most marked at C6/7 level where left paracentral disc protrusion causes minor flattening of the anterior surface of the cord and causes impingement of the existing left C7 nerve root medial to the foramin.
2There is mild broad-based disc bulge at C5/6 level, uncovertebral osteophytes result in mild bilateral foraminal stenosis, right greater than left.
3Elsewhere there is mild cervical spondylosis and there is mild thoracic spondylosis.
4Previous L4/5 and L5/S1 laminectomy. Lumbar vertebral canal is capacious.
5Mild broad-based disc bulge at L5/S1 without canal stenosis. There is mild bilateral L5/S1 foraminal stenosis medially, facets contact the exiting L5 nerve root bilaterally without compression.”
The Plaintiff’s medical evidence
Dr Ian Sharrock
32 On 5 April 2013, Dr Sharrock, general practitioner, confirmed that the plaintiff had been a patient of the Eltham Clinic for twenty-two years.
33 Dr Sharrock said the plaintiff complained of back pain after transferring a patient on a trolley during her employment with the defendant. She described pain radiating to both legs with muscle spasm in the upper back. She was referred to Dr Lu Ton, an orthopaedic surgeon, who performed a microdiscectomy. The plaintiff was referred to physiotherapy. Her condition fluctuated during 2006.
34 In March 2007, the plaintiff developed a different back pain after pushing heavy doors during her normal employment. She described upper back pain after the March 2007 incident. In August 2007, the plaintiff complained to Dr Sharrock of pain in her neck, shoulder and both arms. In February 2008, she complained to Dr van Bard of back and shoulder pain and resisted abduction of the shoulder caused pain. In March 2008, the plaintiff was due to receive steroid injections in both shoulders. The plaintiff suffered fluctuating pain and was either unable to attend work due to too much pain or being under the influence of pain relief medication.
35 In April 2010, Dr Sharrock said the plaintiff reported pain with her lower back, thoracic back, neck and shoulders, particularly her neck and back, which were work related. He said her physical issues caused her to be unfit for her pre-injury employment, which he believed would be permanent. He said the plaintiff’s mechanical damage to her back would be permanent and unlikely to improve. It was Dr Sharrock’s view that the plaintiff had no likelihood of returning to work in the foreseeable future.
36 In 2012, the plaintiff was referred to Dr Myron Rogers, neurosurgeon, and had surgical intervention to the discs in her cervical spine. Responding to a question about the relationship of the neck injury to the second work incident, Mr Sharrock said the plaintiff was not complaining of severe neck pain prior to 2007 as she does now.
37 In 2013, Dr Sharrock said the plaintiff suffered from depression. The plaintiff’s pain remains pervasive. Dr Sharrock said it was difficult to attribute weighting to the three different pains in her neck, her shoulder and her back. He said the neck pain is better since the surgery and she is less affected by that. The shoulder and lower back remain most troublesome.
Dr Helen Sutcliffe
38 Dr Sutcliffe, occupational physician, confirmed that she treated the plaintiff on two occasions in June and July 2007 in respect to the onset of low back and leg pain after moving a patient in January 2006 and after the plaintiff suffered injury in her upper back, shoulders and aggravation of lower back pain as a result of opening a heavy door in March 2007.
39 She provided an up-to-date report in 2013 after examining the plaintiff at the request of her solicitor. Dr Sutcliffe diagnosed the onset of a disc derangement at L5-S1 level as a result of the 3 January 2006 incident. In relation to the 15 March 2007 incident, Dr Sutcliffe said the plaintiff sustained onset of disc derangement in the cervical spine with C6-C7 disc prolapse and involvement of the left C7 nerve root. In addition, the plaintiff sustained an aggravation of the pre-existing injury with further L5-S1 disc derangement. She also sustained an onset of shoulder injuries to the right and left shoulders with onset of subacromial bursitis.
40 Dr Sutcliffe said, when the back injury is considered alone (excluding consideration of any psychological or psychiatric conditions), it was her opinion the plaintiff had no capacity for pre-injury duties and that she will continue to be precluded from her occupation as a clinical nurse now and into the foreseeable future. She thought she may be able to undertake limited more sedentary roles in the nursing field, but she would require further training. She thought the plaintiff could return to four hours, three days per week if she was able to undertake more sedentary types of duties in the nursing role.
41 When considering the neck alone (excluding consideration of any psychological or psychiatric conditions), Dr Sutcliffe believed the plaintiff had no capacity for her pre-injury occupation or for the occupation of clinical nursing as a result of the injury sustained in the second incident, and that this will continue into the foreseeable future. She said the plaintiff had restricted capacity for any other activities of employment as a result of the neck injury, and that would continue into the foreseeable future. She thought the plaintiff’s neck injury will preclude her from performing full-time administrative or office-based roles.
42 When considering the shoulders alone, she thought the plaintiff had limited capacity for pre-injury duties or for clinical nursing in any role. She said the plaintiff could perform office-based tasks or sedentary roles in nursing, such as administrative nursing, but it would be limited to part-time duties for four hours, three days per week.
43 Dr Sutcliffe said the plaintiff had no capacity to perform her pre-injury duties because of the back condition when considered alone, because of the neck injury when considered alone, or because of the shoulder injuries when considered alone, and this will continue into the foreseeable future.
Mr Lu Ton
44 Mr Lu Ton, orthopaedic surgeon, provided reports dated 22 May 2007, 29 March 2008 and 26 June 2010. In April 2006, Mr Lu Ton saw the plaintiff on referral from her general practitioner specifically for the severe low back and left leg pain. He diagnosed a chronic mechanical back pain with bilateral L5 nerve root impingement from lumbar canal stenosis. The plaintiff denied any past history of back or neck disorder and he accepted that work was the sole contributing factor to her current condition. He confirmed that he performed surgery of the L4-S1 posterior decompression on 27 November 2006. She was discharged and returned to work, initially with light duties after three months. In May 2007, he reported that the plaintiff had recently had a small setback in her recovery when she sustained light injury to her upper back from pushing a heavy fire door. He said she improved with physiotherapy and anti-inflammatory. He expected that she would be able to return to her duties in the near future. He said her current condition, referring to the neck and shoulders, is materially related to a new injury that she sustained as she tried to push a heavy door. In respect to the 2006 injury, he said the plaintiff had limited capacity for heavy manual work. He expected she would progress to pre injury employment in six to twelve months. He said she may have recurrent attacks of back pain over the next two to five years, with less degree of severity and frequency. Each recurrence may vary from a few weeks to a few months in duration. The radiculopathic pain in the legs had resolved, but the low back pain is still intermittently recurring with physical activity.
45 In March 2008, he diagnosed “mechanical neck pain due to muscular strain, right and left shoulder subacromial impingement syndrome; recurrent low back strain”, which he said were work-related. He said the plaintiff reported worsening of the pain in the neck, shoulders and back.
46 In 2010, Mr Lu Ton said the plaintiff was having recurrent pain in the lower back, neck and shoulders and had not been able to return to her original duties in any meaningful way. He said statistically, the plaintiff will not be able to return to her pre-injury duties. He said the physical injuries to the lower back, neck and shoulders will restrict her social, domestic and recreational activities. Overhead movement of the upper limbs, reaching, bending and twisting of the neck and back will aggravate her pain. He said the plaintiff has major symptoms and her prognosis for spinal symptoms is guarded.
Dr Terence C Lim
47 In March 2010, Dr Lim, consultant in rehabilitation and pain medicine, treated the plaintiff at the request of her general practitioner. He recommended the plaintiff attend a pain rehabilitation program, and commenced her on Lyrica.
Mr Trung Nguyen
48 In April 2010, Mr Nguyen, orthopaedic surgeon, reported to the plaintiff’s solicitor that he had treated the plaintiff since January 2009 in respect to her right and left shoulder problems. The plaintiff described the injury as happening in the second incident at work in March 2007. He diagnosed bilateral shoulder impingement with subacromial bursitis. Surgery was performed to the right shoulder in April 2009 and to the left shoulder in July 2009. In April 2010, he said the plaintiff’s right shoulder was back to normal and that there had been significant improvement in the left shoulder. He said there was a strong possibility that she would be able to return to her pre-injury duties. He believed the plaintiff had been back to normal activities apart from some recreational activities involving the left arm.
Mr Thomas Kossman
49 In February 2013, Mr Kossmann, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Kossmann said that, as a result of the 3 January 2006 incident, the plaintiff suffered discogenic back pain on the basis of disc bulges from L1-2 to L4-5 and a broad-based disc bulge at the L5‑S1 which was operated upon.
50 As a result of the 15 March 2007 incident, he said the plaintiff suffered:
· Discogenic pain of the cervical spine on the basis of large left paracentral disc prolapse at the C6-7 level, compressing the origin of the C7 nerve root, and at the C5-6 level on the right, compressing the exiting C6 nerve by a bony foraminal stenosis. The plaintiff was operated upon on 28 May 2012.
· Subacromial bursitis of the left shoulder and subacromial bursitis of the right shoulder, both of which were operated upon.
51 It was Mr Kossmann’s opinion the plaintiff was restricted in relation to employment and related activities, and that her incapacity will continue for the foreseeable future. He thought the plaintiff had no capacity to perform her pre-injury duties. He said the plaintiff had a capacity to perform suitable employment. He thought she could return to the operating suite in a functional role, but would not be able to work physically. He said she was not able to twist and bend her upper body, have constant movement with her head or upper extremities, lift heavy items, walk long distances, walk on uneven ground, walk up and down stairs or climb up and down ladders.
Mr Myron Rogers
52 In April 2013, Mr Rogers, neurosurgeon, confirmed that he treated the plaintiff, who had a moderately large disc prolapse on the left at C6-7 and at the C5-6 level. She had significant degenerative change, resulting in foraminal stenosis, which was more pronounced on the right. The plaintiff proceeded to surgery. It was Mr Rogers’ opinion that the incident at work in March 2007 had contributed to deterioration of pre-existing degenerative change in her cervical spine. It was his opinion that her cervical, lumbar and shoulder problems are contributing to her pain problem and are impacting on her ability to return to work, and impact on her day-to-day activities. He said once the symptomatic cervical disc prolapse had been treated, if the referred arm symptoms had resolved, he thought she could return to suitable employment and the majority of her usual social, domestic and recreational activities.
The Defendant’s Medical Evidence
Mr Clive Jones
53 In April 2013, Mr Clive Jones, orthopaedic surgeon, reviewed the plaintiff at the request of the defendant’s solicitors. Mr Jones had seen the plaintiff on a number of occasions, commencing in June 2007.
54 In June 2007, he said the plaintiff had residual low back symptoms from the January 2006 incident and as a result of the March 2007 injury, she had new problems of neck and shoulder pain. He said the March 2007 injury caused a problem in a different part of the spine and not a continuation of the low back problem, which he thought was her main problem.[18]
[18]Defendant’s Court Book (“DCB”) 4
55 In relation to work, he thought the plaintiff would be better out of the operating suite altogether and into an outpatient department or nurse educator role. By March 2008, he thought the plaintiff’s neck and low back symptoms were of equal intensity.
56 In January 2009, he said the problems were chronic neck pain, with a relatively poor response to lumbar laminectomy surgery.
57 In March 2009, he said the plaintiff had a minor degree of bilateral shoulder pain with subacromial bursitis. He thought the plaintiff had a reasonably satisfactory result from a lumbar laminectomy in 2006 and her current problem was painful shoulders and neck pain.
58 In 2013, he diagnosed neck, shoulder and lumbar pain. He said it was difficult to disentangle the underlying causes. He said her neck pain had improved, her right shoulder function seemed reasonably satisfactory, but there was pain in the left shoulder and the low back. He said there did not appear to be a really convincing nexus between the development of the C6-7 prolapse and pushing open the fire door. This view was based on information provided to him that the force required to open the door was 1.25 kilograms. It was his opinion that the plaintiff could perform the following jobs – namely, pathology collector, health promotion officer or triage nurse. He said the plaintiff did have residual impairment of neck function, shoulder function and problems with her lower back, and that some symptoms in all of these areas are likely to continue for the foreseeable future. He thought there was some amplification of her symptoms.
Mr Daryl Nye
59 Mr Daryl Nye, neurosurgeon, said the plaintiff has cervical degenerative disease complicated by a left-sided C6-7 disc prolapse with evidence of sensory radiculopathy. He considered that a single level anterior cervical discectomy and fusion with nerve root decompression would be a reasonable procedure. He had difficulty with the relationship of the identified cervical condition to the injury of 2007, given the time factors and the chronology of symptom development and given the surgical treatment of the identified cervical disc condition was not accepted.
Vocational Assessments
Katrine Green Consulting Pty Ltd
60 In May 2013, Ms Green conducted a vocational assessment at the request of the plaintiff’s solicitor. The purpose of the assessment was to determine the plaintiff’s fitness for employment, taking into consideration her work history, transferable skills, age, education, English language skills and physical and emotional status. Ms Green interviewed the plaintiff and reviewed the medial reports, including the medical reports relied upon by the plaintiff and the defendant in this proceeding.
61 Ms Green further said, in considering the plaintiff’s education, vocational training, work history, transferable skills and occupational knowledge, the main occupations for which she could be considered are nurse, nurse manager, pathology assistant/blood bank aide, community worker, call centre information clerk (nursing related), nursing agency employment consultant and reception/information officer/ward clerk. She analysed each of those positions. She concluded that, based on the medical opinions provided, the analysis of those positions and the physical demands of the core duties, because of the plaintiff’s back, bilateral shoulder and neck injuries and current physical capacity, she was unable to perform the inherent duties of her previous occupation or the inherent duties of other suitable employment within the foreseeable future.
62 Ms Green reviewed three reports of CoWork Pty Ltd (“CoWork”) dated 4 May 2013, 28 June 2010 and 18 December 2008. In respect to the CoWork report of May 2013, Ms Green said that report made no mention of the neck surgery in 2012 and assumed that an improvement in her symptoms made the plaintiff fit for nursing work. Further, CoWork said the plaintiff performed a range of nursing duties. Ms Green said the plaintiff’s experience as a nurse was in specific specialised nursing areas of theatre and midwifery nursing, and given that it was many years since she had worked as a general nurse, her occupational and transferable skills were very limited. She said the plaintiff would not be suitable for a health promotion officer, given the plaintiff’s specific nursing experience and inexperience in publicity and promotional work. Nor would she be suited for clerical work. The plaintiff had never worked as a clerk. Her computer skills and clerical experience would be insufficient to gain a clerical or administrative role in the health system or in private enterprise. Her age was another barrier.
CoWork Pty Ltd
63 CoWork provided three reports dated December 2008, June 2010 and May 2013 in respect to the plaintiff at the request of the defendant’s solicitor.
64 In November 2008, Ms J Bryant, occupational therapist at CoWork, met with the plaintiff to undertake an assessment of occupational capacity in relation to her background, education and transferable skills, having reviewed medical information provided. CoWork identified suitable job options of clinical care co-ordinator (triage nurse), nurse on call service and pathology collector.
65 In June 2010, CoWork provided a vocational review and labour market analysis report after considering further material. CoWork said the plaintiff could obtain employment in the following occupations: registered nurse (triage); pathology collector; practice nurse, and health promotion officer.
66 In May 2013, a supplementary report (updated labour market analysis) was prepared by Ms Bryant, which provided updated labour market information for the occupations recommended as suitable for the plaintiff in the report of 3 June 2010. Ms Bryant was aware that the treating general practitioner certified the plaintiff unfit for all work but was aware that independent specialist opinion thought the plaintiff had a work capacity for nurse-related duties which did not involve manual handling and prolonged patient contact. She identified the following occupations as examples of nursing roles that were less physically demanding and therefore potentially suitable – triage nurse (telenursing), practice nurse, pathology collector, health promotion officer.
Credit of the Plaintiff
67 The plaintiff was consistent in reporting the injuries and causes to the doctors whom she saw.
68 The plaintiff answered all questions put to her in a direct manner and made appropriate concessions. The plaintiff’s credit was not subject to attack. Overall, the plaintiff impressed me as a credible witness.
Analysis of the evidence
The first incident – the low back injury
69 Based on the medical evidence, I accept that plaintiff suffered a compensable injury to the lumbar spine arising out of her employment with the defendant in January 2006. This was not in dispute.
70 All of the medical witnesses who expressed a view on the low back injury, accepted the injury was work related. The injury was variously described as chronic mechanical back pain with bilateral L5 nerve root impingement from the lumbar canal stenosis,[19] the onset of a disc derangement at L5-S1,[20] a broad-based disc bulge at the L5‑S1,[21] and a prolapsed disc, with low back pain and sciatica.[22]
[19]Mr Lu Ton, treating orthopaedic surgeon
[20]Dr Sutcliffe
[21]Mr Kossmann
[22]Mr Jones
71 The plaintiff said that she was involved in a motorcar accident in 2003, but received no treatment. The plaintiff’s evidence was that prior to the first injury, she did not have any significant back problems. She remembered having temporary back problems in about 1990, from which she recovered, and was able to work normally. The plaintiff denied any past history of back or neck disorder when examined by Mr Lu Ton as a result of the first incident. I accept the plaintiff’s evidence that, prior to January 2006, she did not have any significant low back problems and that the first incident caused a new injury.
72 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; or
(b) loss of earning capacity.
73 The provisions of s134AB(38) of the Act provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[23] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[24] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[25]
[23]Section 134AB(38)(b), (c) and (d) of the Act
[24]Section 134AB(38)(e), (f) and (g) of the Act
[25]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra) at paragraph [63]
74 Accordingly, it is appropriate for me to look, first, at the test for loss of earning capacity which must be satisfied by the plaintiff.
The narrative test – loss of earning capacity
75 I must make the assessment at the time of hearing the application. In this case, there is a subsequent work injury (an aggravation to the low back injury in a second incident), which is also alleged to have resulted in loss of earning capacity. Accordingly, I must consider the evidence of the plaintiff’s condition and the expected prognosis of her first injury in respect to work at the time of the second incident.
76 The evidence was that after the first incident, the plaintiff was treated with physiotherapy, osteopathic treatment, medication, injections into the spine, and rest. The plaintiff’s medical treatment was being managed by her general practitioner, Dr Sharrock, in conjunction with Mr Lu Ton, orthopaedic surgeon. Following the incident, the plaintiff was attending work on a return to work program, but was having difficulty with the work. Ultimately, surgery was required, and a laminectomy at the L5-S1 level was performed by Mr Lu Ton in November 2006. After the operation, the plaintiff was off work for three months, and underwent physiotherapy. She returned to work, initially with light duties and reduced hours.
77 The plaintiff’s evidence was that in March 2007, she resumed working on a return to work plan, working two shifts per week of four hours’ duration. She said that this was as much as she could cope with. The plaintiff was taking medication at the time of the second incident.
78 At the time of the second incident, and commenting on the plaintiff’s injury as a result of the first incident, Mr Lu Ton expected the plaintiff would be able to return to her duties in the near future. He said she had limited capacity for heavy manual work. He said, with a successful surgical outcome, she could expect slow resolution of back pain. He described the second incident as follows:
“Recently there was a small setback in her recovery. She sustained a light injury of her upper back from pushing a heavy fire door in the operating theatre. Fortunately she improved with physiotherapy and anti-inflammatory.”[26]
[26]Plaintiff’s Court Book (“PCB”) 99.3
79 In May 2007, Dr Sharrock said that the injuries from the first incident were on the improve. He was certifying the plaintiff able to work two shifts per week of four hours each.
80 In June 2007, Mr Jones said the plaintiff’s main problem was the low back pain and the laminectomy surgery.
81 At the time of the second incident, the majority of the medical opinion was that the plaintiff would be able to return to work, and in fact the plaintiff was working two shifts of four hours on a return to work plan. Mr Lu Ton said after the second incident, the plaintiff should be able to return to her duties in the near future and progress to pre-injury employment in six to twelve months. Mr Jones said, due to the plaintiff’s low back discomfort, the plaintiff was capable of limited hours and alternate employment as a nurse educator or working in the outpatient department might be possible.
82 I conclude that at the time of the second incident, there was an expectation that the plaintiff would be able to return to work. There was an issue as to whether she would return to pre-injury employment, or whether she would require lighter duties, but it was accepted by all the medical practitioners that she would be able to return to work.
83 Accordingly, I am not satisfied that the plaintiff meets the statutory test for loss of earning capacity in relation to the first incident.
Pain and suffering
84 I must consider whether the plaintiff now has pain and suffering consequences attributable to the first incident. In determining whether she currently has pain and suffering consequences, I am assisted by the up-to-date medical evidence of Dr Sharrock, Dr Sutcliffe, Mr Kossmann and Mr Jones, all of whom had seen the plaintiff in 2013. Apart from Mr Kossmann, who saw the plaintiff on one occasion, the other medical witnesses had seen the plaintiff on a number of occasions. I am also assisted by the evidence of the plaintiff and her husband.
85 In determining whether the consequences are attributable to the first incident, I rely upon the medical evidence of what the doctors were saying after the first incident, and the evidence of the plaintiff.
86 In May 2007, Mr Lu Ton said, of the plaintiff’s condition as a result of the first incident, that there may be recurrent attacks of back pain over the next two to five years with less degree of severity and frequency. Each recurrence may vary from a few weeks to a few months in duration. He said, of the injury from the first incident, that the radiculopathic pain in the legs had resolved, but the low-back pain is still intermittently reoccurring with physical activity. Mr Lu Ton said the plaintiff will require medication and physiotherapy.
87 The plaintiff’s evidence is that she continues to suffer low-back pain. She said her low back never returned to normal. Her evidence was that after the surgery in 2006, she did not experience referred pain into her legs, but once she returned to work she continued to have referred pain into the rear of her upper thighs. She said she struggled with the pain and was taking medication of Panadeine, Mersyndol and Mobic. She was receiving physiotherapy treatment and consulting her general practitioner.[27]
[27]Transcript 93
88 In April 2013, the plaintiff reported to Dr Sutcliffe that the pain in the low back is at the level it was prior to her surgery in 2006. She described it as persistent, radiating into the left buttock and the posterior left leg. She reported intermittent pain in the right lateral thigh and a sensation of tingling in the left foot. She described the pain level at an intensity of 2 to 6 on a visual analogue scale of zero to 10. I accept that the level of pain the plaintiff reports is significant.
89 The plaintiff’s evidence was that she currently takes Lyrica, Panadeine Forte and Endone. She takes one Lyrica twice a day, four Panadeine Forte a day and Endone, one to two times a week. I accept the level of medication the plaintiff is taking is significant. I can infer that the back pain contributes to her medication requirements.
90 In 2013, Mr Kossmann imposed restrictions upon the plaintiff of not being able to twist or bend her upper body, lift heavy items, walk long distances, walk on uneven ground or walk up and down stairs. These restrictions are restrictions which would normally relate to a person suffering low-back pain. I accept that these restrictions are imposed as a result of the low-back injury. They are restrictions which affect her social, domestic and recreational activities.
91 The plaintiff’s evidence was that she recently travelled overseas with her husband. She consulted Mr Lim on two occasions this year to obtain advice on coping with the pain.[28] Her evidence was that she was able to cope with the travel because she had a stop over in Singapore for approximately 30 hours so she could rest before continuing her flight. She also had a stop over in Singapore on the return trip, to help her cope with the flight. By the end of the trip she was taking eight Panadeine Forte a day, three to four Lyrica a day and one to two Endone a day. The plaintiff’s evidence was that she increased the medication to cope with the increased pain in her lower back, her neck and her shoulder. I can infer that this consequence is in part due to the low back injury.
[28]Transcript 92
92 The plaintiff said, on occasions while overseas, she could not participate in sightseeing activities because she had difficulty getting out of bed because of her lower back, neck and shoulder pain. I can infer that this consequence is in part due to the low-back injury.
93 I accept that these are consequences that I can take into account in respect to the low-back injury.
94 The plaintiff’s evidence was that her sleep is affected by low-back pain. Her sleep is interrupted, particularly when she has been active during the day. She said she is lucky to get two to three hours of unbroken sleep per night. She has difficulty getting to sleep. She said she had used alcohol to assist with sleep and dull the pain. Her evidence about the effect of her low-back injury on her sleep is supported by her husband’s evidence.
95 The plaintiff said she and her husband had an active social life prior to her injury. She goes out less and does not enjoy activities, largely due to the back pain as she is restricted in sitting for prolonged periods and suffers pain. She has a standing tolerance of 30 minutes and a sitting tolerance of slightly in excess of one hour. Beyond these periods she suffers an increase in low-back pain. The plaintiff’s husband said that they no longer attend social functions, in particular the Comedy Festival. He said prior to her injury, the plaintiff walked the family’s dog on a daily basis. She is now restricted by pain and he walks the dog. The plaintiff’s husband supported her evidence. He was not subject to cross-examination. Accordingly, I can accept his evidence.
96 The plaintiff said squatting or bending, going up stairs or over rough ground increases her low-back pain. This is supported by Mr Kossmann, who imposed restrictions on these activities.
97 I am required to make the assessment at the time the application is heard. The plaintiff’s presentation at the time of the application was of a woman who suffers back pain and restrictions that flow from the back injury. She is required to take medication at significant levels and has an incapacity to bend, stoop and lift. This presentation is consistent with the prognosis given by her treating orthopaedic surgeon, Mr Lu Ton, in relation to the first incident. I accept her current presentation with respect to pain and suffering consequences is largely attributable to the first incident.
98 Accordingly, I am satisfied that as a result of the first incident, it is fair to describe the pain and suffering consequences of the plaintiff’s low back as being “more than significant or marked” and properly regarded as “very considerable” when judged by a comparison with other cases in the range.
99 In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act. Given the time since the injury in 2006, I am satisfied that the low-back injury is permanent. The plaintiff therefore satisfies the narrative test for pain and suffering.
100 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the low back impairment arising out of the first incident is successful.
The second incident
101 The plaintiff claims loss of four body functions as a result of the second incident:
(i) the neck;
(ii) the left shoulder;
(iii) the right shoulder; and
(iv) aggravation to the low back.
102 I turn first to the aggravation to the low back.
The aggravation to the low back
103 In respect of the second incident, the medical witnesses, other than Mr Nye, accepted that the injuries were work related. Mr Jones accepted the plaintiff had a low-back injury, but related the injury to the first incident. The injury to the low back was described as an aggravation of the pre-existing injury with further L5-S1 disc derangement by Dr Sutcliffe and as recurrent low-back pain by Mr Lu Ton.
104 In July 2007, Dr Sutcliffe said the plaintiff suffered an aggravation of the lumbar disc lesions in the second incident and had persisting low-back pain since the incident.
105 In March 2008, the plaintiff reported to Mr Lu Ton worsening of her pain in her back. Mr Lu Ton reported examination of the lumbar spine showed poor range of motion and recurrent nerve root irritation in both legs, with right leg pain worse than the left.
106 In June 2010, Mr Lu Ton said the plaintiff had sustained an injury to the lower back. He said the plaintiff’s current condition “is materially related to a new injury that she sustained recently as she tried to push a heavy door”. I accept that by mid-2010, Mr Lu Ton accepted the second incident was more significant than he thought in May 2007.
107 The evidence was that the plaintiff reported pain in the low back to her general practitioner and to Mr Jones, Mr Lu Ton and Dr Sutcliffe soon after the second incident. On 14 April 2007, she completed a Staff Incident Report in respect to the second incident, recording “pain in the lower back, down legs and in shoulders”.
108 Based on what the plaintiff was reporting at the time of the second injury in respect to the low back, and what the medical witnesses were saying at that time, I accept that there was an aggravation to the low-back area in the second incident.
109 In respect to an aggravation to a pre-existing injury, Southwell and Teague, JJ, in Petkovski v Galletti,[29] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[30]
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
[29]Supra
[30](supra) at 443
110 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment (or loss) of a body function.
111 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the March 2007 incident is serious.
112 The evidence was that the plaintiff had suffered a previous back injury at work in January 2006.
113 In respect of the 2006 injury, Mr Lu Ton, treating orthopaedic surgeon, thought the plaintiff’s prognosis was good and that she would be able to return to pre-injury employment, but had limited capacity for heavy manual work. He expected the plaintiff would continue to have flare ups of back pain for five to eight years. Dr Sharrock, general practitioner, said that the pre-existing injury was improving. Mr Jones thought the plaintiff could return to suitable work.
114 Following the first incident, the plaintiff had returned to work, working two shifts per week of four hours each. She was struggling with the work because of pain, but was continuing to work. She took medication and received physiotherapy treatment.
115 I accept that by March 2007, the plaintiff had suffered a significant injury to her back at work in 2006, for which she had required treatment and had time off work. However, by the time of the second incident, she had returned to work on a return to work program, and her injury was improving. I accept the medical opinion that the plaintiff would be able to return to full-time, suitable employment.
116 The Court must examine the consequences of a physical impairment in the separate context of:
(a)pain and suffering; or
(b)loss of earning capacity.
117 The provisions of s134AB(38) of the Act provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[31] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[32] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[33]
[31]Section 134AB(38)(b), (c) and (d) of the Act
[32]Section 134AB(38)(e), (f) and (g) of the Act
[33]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra) at paragraph [63]
118 Accordingly, it is appropriate for me to look, first, at the test for loss of earning capacity which must be satisfied by the plaintiff.
The narrative test – loss of earning capacity
119 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. Accordingly, I place greater weight on the most up-to-date medical evidence of the general practitioner and Dr Sharrock, Dr Sutcliffe, Mr Kossmann and Mr Jones. All examined the plaintiff in 2013 and, apart from Mr Kossmann, all doctors had seen the plaintiff on a number of occasions over a number of years.
120 All medical witnesses[34] accepted the plaintiff could not return to her pre-injury employment as a theatre nurse because of the low-back injury. Dr Sharrock was the only medical witness who said the plaintiff was not fit for any form of employment.
[34]Dr Sharrock, Dr Sutcliffe, Mr Kossmann and Mr Jones
121 Dr Sutcliffe, occupational physician, was the only medical witness to disentangle the injuries and indicate, as a consequence of the low-back injury, whether or not the plaintiff was precluded or restricted in any way in relation to employment. Dr Sutcliffe said when the back injury is considered alone, the plaintiff had no capacity for pre-injury duties, and that she will continue to be precluded from her occupation as a clinical nurse, now and into the foreseeable future. She said the plaintiff was restricted in her capacity for employment; she cannot return to clinical nursing into the foreseeable future. She may be able to undertake limited sedentary roles in the nursing field, for which she will require further training. She said the plaintiff could work four hours, three days per week, in more sedentary types of duties in a nursing role. Dr Sutcliffe said the plaintiff could return to duties where there are limited tasks of sedentary office space duties.
122 It was unclear whether Mr Kossman believed the plaintiff had no capacity to perform her pre-injury duties due to the impairment to her neck, back or shoulders alone or together. Mr Jones did not disentangle the injuries. He expressed the view that the plaintiff could perform jobs of pathology collector, health promotion officer or triage nurse, but did not give reasons. Accordingly, Mr Kossmann and Mr Jones’ views were of limited assistance in the task that I am required to undertake. In 2013, Dr Sharrock said that the low back and the neck remained the most troublesome to the plaintiff.
123 Based on the medical opinions, I accept that, as a result of the second incident, the plaintiff suffered an aggravation injury to the low back in compensable circumstances. Based on all the medical opinions, I accept the plaintiff cannot return to her pre-injury employment as a nurse in an operating theatre. Based on the opinion expressed by Dr Sutcliffe, I accept that the plaintiff can perform suitable employment of 12 hours per week provided she is given training.
124 It is necessary for me to consider what the vocational experts say as to suitable work for this particular plaintiff.
125 There are two vocational expert reports available. CoWork provided three reports but only interviewed the plaintiff on one occasion before preparing the first report in November 2008. Further, the reports are limited by the fact that Ms Bryant of CoWork only had limited medical material available to her in preparing the reports.
126 In contrast, Ms Green conducted an interview with the plaintiff in May 2013. She reviewed the three reports of CoWork. In respect to CoWork’s report of May 2013, Ms Green said that report made no mention of any neck surgery in 2012 and assumed that an improvement in the plaintiff’s neck symptoms made the plaintiff fit for nursing work. Further, Ms Green said the CoWork report stated that the plaintiff performed a range of nursing duties, when in fact the plaintiff was involved in theatre and midwifery nursing, which are specific specialised areas of nursing, not general nursing. Given it had been many years since the plaintiff worked as a general nurse, Ms Green’s opinion was that her occupational and transferable skills were very limited.
127 Ms Green analysed each of the positions suggested by CoWork and concluded that, based on the medical opinions, an analysis of those positions and the physical demands of the core duties, the plaintiff was unable to perform the inherent duties of those positions. In respect to the position of health promotion officer,[35] Ms Green said the plaintiff would not be suitable because of the plaintiff’s specific nursing experience and inexperience in publicity and promotional work. In respect to clerical work, she said the plaintiff had never worked as a clerk and her computer skills and clerical experience would be insufficient to gain a clerical/administration role in the health system or in private enterprise. Her age was another barrier. Ms Green’s opinion was that the plaintiff is unable to perform the inherent duties of her previous occupation or of other suitable employment within the foreseeable future.
[35]A position identified as suitable work by CoWork
128 The plaintiff’s evidence was that she was no longer registered as a nurse; her registration lapsed after five years of not working. To become re-registered she would require retraining, which would take three months full time or six months part time. The plaintiff’s evidence was that she would not be able to do the necessary nursing duties of lifting, bending, twisting and carrying that would be required to obtain re-registration. Dr Sutcliffe and Mr Kossmann supported the plaintiff’s evidence. Mr Kossmann said the plaintiff could not work physically; she is not able to twist and bend her upper body; have constant movement of her head or her upper extremities; lift heavy items; walk long distances; walk on uneven ground; walk up and down stairs or climb up and down ladders. I accept that those restrictions, in large part, relate to the low back. Accordingly, I accept that there are restrictions on the plaintiff obtaining re-registration as a nurse.
129 Taking the evidence of Dr Sutcliffe and Ms Green, I am satisfied that as a result of her low-back injury, the plaintiff cannot perform the inherent duties of her previous occupation, nor can she perform the inherent duties of other suitable employment. I accept that this represents a significant loss to the plaintiff.
130 The evidence was that the plaintiff had trained and worked as a registered nurse for many years. The plaintiff’s evidence was that once her children were independent, she would have increased her hours of work from 25.5 hours per week to full-time work. The plaintiff has been deprived of her occupation as a nurse, a career she had worked in for many years. Ms Green said she had few transferrable skills. This represents a significant loss to the plaintiff both with respect to her enjoyment of life and self esteem.
131 I am satisfied that the plaintiff’s impairment is permanent, given the medical evidence, and that it has continued since 2007.
132 I am satisfied that it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases on the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
133 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
134 Given the medical evidence and that the plaintiff’s injury has continued since 2007, I find that the plaintiff is effectively excluded from any suitable employment as a result of the impairment to the neck and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates, as I do not accept that she has any residual capacity when the medical restrictions placed on her by the medical witnesses are looked at, together with the vocational report of Ms Green, in the context of the real commercial world.
135 I accept that the plaintiff would not be able to complete the retraining necessary for her to be re-registered as a nurse. There was no evidence that rehabilitation would assist the plaintiff. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per or more.
136 In view of the matters I have described, the plaintiff has discharged the onus with respect to her impairment of the neck regarding her loss of earning capacity. I grant leave to the plaintiff to bring proceedings for pecuniary loss damages. In accordance with Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[36] it follows I also grant leave to bring proceedings for pain and suffering damages.
[36](supra) at [63]
137 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for economic loss consequences as a result of her employment with the defendant in March 2007.
138 Accordingly, I will make an order that the plaintiff be granted leave to issue proceedings at common law for:
(a) pain and suffering damages arising out of the incident in January 2006; and
(b) economic loss and pain and suffering damages arising out of the incident in March 2007.
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