Morphett v Arnolds CFD Pty Ltd
[2010] VCC 1457
•13 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WODONGA CIVIL DIVISION DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03266
| DONNA LEE MORPHETT | Plaintiff |
| v | |
| ARNOLDS CFD PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 20, 21 September 2010 |
| DATE OF JUDGMENT: | 13 October 2010 |
| CASE MAY BE CITED AS: | Morphett v Arnolds CFD Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1457 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti and | Nevin Lenne & Gross |
| Mr G Pierazzio | ||
| For the Defendant | Mr W R Middleton SC and | Wisewould Mahony Lawyers |
| Ms J M Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on during the course of her employment with the defendant from February 2006 until 19 December 2008 and in particular, on 16 December 2008 (“the first date”) and on 19 December 2008 (“the second date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) 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;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. 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
6 The plaintiff is aged fifty four, having been born on 25 August 1956. She is single, lives alone and is in receipt of weekly payments of compensation.
7 Having completed Year 10, the plaintiff obtained qualification as a receptionist, attending a four-month TAFE course.
8 The plaintiff worked in food preparation at Rockers Café in Albury between 1993 and 1995. She worked for three months as a receptionist in 1996 and then left the workforce to raise a family.
9 In 2001, the plaintiff did some volunteer work in administration at the Wodonga Hospital. That year she also obtained a job as an administrative assistant at Nexus, through Workways, for three months as part of a return to work program.
10 Between 2004 and 2007, the plaintiff worked as a store assistant at Liquorland, working 15 to 20 hours over four days a week.
11 The plaintiff commenced employment with the defendant in February 2006 as a retail shop assistant, earning about $500 net per week.
12 The plaintiff worked not less than 32 hours per week. She worked up to 37 hours per week in holiday times and during the summer. There were no full time employees working in the plaintiff’s section.
13 A summary of the hours worked by the plaintiff indicated that in 2006, from February to 27 December, she worked on average 33.12 hours per week. In 2007, she worked an average of 33.31 hours per week and in 2008, she worked an average of 33.57 hours per week.
14 In the financial year 2005/2006, the plaintiff worked on average 30.61 hours per week. In 2006/2008, she worked 33.37 hours per week, and in 2007/2008, she worked 34.32 hours per week.
15 In the Worker’s Injury Claim Form signed by the plaintiff on 7 January 2009, she set out her usual pre-tax hourly rate was $15.86 and her usual pre-tax weekly earnings were $615.33. The Employer Injury Claim Form report set out the plaintiff worked 32 standard hours each week before she was injured.
16 The plaintiff’s job required her to fill shelves in the defendant’s store with fresh fruit and vegetables. The job involved heavy, repetitive manual lifting of cartons and bags of fruit and vegetables weighing 10 to 20 kilograms, and also lifting such items to heights.
17 From time to time from 2007 whilst working with the defendant, the plaintiff suffered back pain because of the heavy and repetitive nature of her work. She reported this problem to the manager, Roger Arnold, who sent her for osteopathic and naturopathic treatment. Prior to the second date, the plaintiff did not have any time off work because of back pain. The treatment organised by the defendant was the only treatment undertaken by the plaintiff at that time:
“The boss would ring up the clinic in Albury and we’d go over there and
he’d do our back and then we’d go back and start work again.”
18 Prior to December 2008, the plaintiff’s back pain would settle down. She knew how to look after it when it started to flare up. After work she would firstly have a hot shower and then put a heat pack in the back of her underpants. She “would go slowly” probably for a day and then go back and start again.
19 Having said in cross examination that 2007 was the first time she had experienced back pain, the plaintiff was asked about a number of attendances with her doctors prior to that date. She could not recall seeing Dr Zwar on 11 May 2000 with possible musculoskeletal complaints in her low back. When asked about attendances for rheumatoid arthritis in December 2000, the plaintiff explained that she had pain in her shoulder at that time.
20 The plaintiff could not recall complaining of back and small joint pains and being prescribed Celebrex on 19 March 2001.
21 The plaintiff agreed that she had back pain, which required seeing a doctor, and medication prior to starting work with the defendant but the pain was higher in her back rather than in her lower back.
22 The plaintiff recalled having osteomyelitis at the age of thirty four at the top of her shoulders, behind her neck, but she had no ongoing problems with that condition.
23 As the plaintiff continued to work with the defendant, particularly into December 2008, she developed more severe chronic back pain.
24 On the first date, whilst bending into a huge capsicum bin to retrieve vegetables, the plaintiff felt pain across the bottom part of her lower back like a “pinging”. At the time she thought “Okay, it’s just doing what it normally does. I’d go home and I baby it”.
25 On the second date, the plaintiff experienced more severe back pain lifting cartons of rockmelons weighing between 10 to 15 kilograms from the floor onto a trolley.
26 The pain on this occasion was “ten plus” out of ten and was a grabbing sort of pain. The plaintiff was restricted in her movement and she was laid up until she had osteopathic treatment the following weekend.
27 The plaintiff reported the injury to Roger Arnold.
28 A Register of Injury form dated 23 December 2008 set out an incident on 19 December 2008:
“Pulled muscle in lower back. Recurrent injury suffered 20th June 2006.”
29 It was noted:
“Muscle strain lower back. Required first aid. Visited Albury Osteopathic
Clinic.”
30 The plaintiff begged her osteopath to let her in for treatment over the weekend. When the plaintiff asked the defendant if she could see a doctor, she was told by the defendant that she had to see the work doctor. As she could not get an appointment until January, she went to another doctor.
31 The plaintiff attended Dr Eastman at the Elmwood Clinic in late December 2008. In cross examination, the plaintiff said at that time she had pain radiating into her left foot.
32 The plaintiff had further osteopathic treatment and she also started taking painkilling medication.
33 The plaintiff eventually attended her normal general practitioner, Dr Giddens, on 8 January 2009. She was referred for x-rays and advised that she required an MRI scan.
34 Funding was not approved for that investigation so it was not undertaken at that time. The insurer then arranged for the plaintiff to be examined by Mr Scott, orthopaedic surgeon, in late January 2009, at which time he reported the plaintiff was unfit for work.
35 The plaintiff has not worked since the second date. Since ceasing work, treatment has continued and physiotherapy has been ongoing. Initially the plaintiff received treatment from a physiotherapist “Richard” in Albury. Since late 2009, she has been under the care of Ms Bucher who also performs clinical Pilates as well as physiotherapy treatment.
36 The plaintiff has seen a specialist spinal surgeon, Mr Timms, on two occasions. She has not seen Mr Thien.
37 Mr Timms arranged for a CT-guided spinal injection in May 2009. About four or five weeks after that procedure, the plaintiff could walk better but the injection did not relive her back pain which has stayed constant.
38 The plaintiff has decided against taking prescription medication, dealing with the pain herself, as she does not want to risk the side effects or addiction. It would be dangerous for her to take medication as she was a heroin addict from the ages of sixteen to thirty one. Eventually she was able to overcome that addiction but she had to go ‘cold turkey’.
39 The plaintiff has not taken medication since late December 2008 as it was not really doing anything, she was just swallowing a tablet for the sake of it.
40 The plaintiff has also undertaken hydrotherapy and chiropractic treatment and has had exercises prescribed, which she continues to perform. The plaintiff wants to have acupuncture treatment but she cannot afford to pay for it herself and then have to wait to be reimbursed by the insurer. The plaintiff has found the WorkCover process at times distressing.
41 Back surgery has been offered as a last resort.
42 The plaintiff continues to suffer from chronic low back pain and left leg pain into the thigh. Occasionally she has pins and needles in the toes of her left foot, although that symptom has improved since the spinal injection.
43 The plaintiff’s left leg is “a hell of a lot weaker” than the right. The left leg is thinner than the right in the calf and ankle.
44 Whilst in the witness box, the plaintiff’s back “was paining”, really throbbing across the left side. She was sitting on the edge of her chair during that time as she could not get her back into the groove of the chair.
45 The plaintiff attempts to manage as best she can herself. She has learnt to live with her pain and within her limitations imposed by it. She knows what she can and cannot do. The plaintiff just has to push herself to keep going. She needs to lie down if she does anything too strenuous.
46 The plaintiff cannot lie on her back with her legs out straight and if she does, it kills her.
47 On an average day, the plaintiff’s level of pain depends on what she is doing. If she is doing nothing it stays at about six out of ten.
48 The plaintiff finds constant sitting, standing or driving causes increasing symptoms. When she is at home, the plaintiff is constantly on the fit ball.
49 Other activities which are difficult for the plaintiff because of her spinal condition include walking up stairs, even slight hills, and putting out full rubbish bins.
50 The plaintiff lives alone. She has difficulty with most household and domestic activities, including, in particular, vacuuming and washing floors. She no longer does the latter as she has problems using a bucket. She bought a smaller vacuum cleaner to enable her to do vacuuming as her old one was too heavy to use.
51 Her housework takes her literally forever. She is very slow and gets upset and frustrated because of the limitations. In particular, tasks such as turning the mattress and making the bed are very difficult. She is no longer able to be very houseproud. She scrubs the shower with her foot on a sponge.
52 Despite being a believer in spring cleaning, the plaintiff has not been able to do so since the injury. The plaintiff can cook “because it is only one of [her]”.
53 When the plaintiff goes shopping she does so with care. She uses a trolley and gets help from other people at the supermarket. She carries the shopping bags in both hands, evening out the weight.
54 Since suffering injury, the plaintiff’s garden has deteriorated and she has not been able to attend to it adequately.
55 The plaintiff recently took responsibility for a lost dog and finds it enjoyable to walk the dog for twenty minutes a day.
56 The plaintiff is restricted in participating in social activities because of her ongoing pain and symptoms. She knows that she would not be able to go to the pictures or out for dinner with friends without experiencing increasing pain.
57 Prior to injury, the plaintiff enjoyed playing tennis socially and going out dancing with friends at various Albury night establishments. She used to enjoy staying out late and enjoying herself socially.
58 The plaintiff also used to enjoy travelling around Victoria visiting friends and walking in the bush at farms owned by friends. She is now much more housebound.
59 The plaintiff continues to suffer from depression, brought about by her back injury and its consequences, and she has been having psychological treatment every three or four weeks for the last year or so. In cross examination, the plaintiff agreed she had suffered anxiety attacks prior to her back injury.
60 The plaintiff’s capacity for employment in respect of any physical activity is now precluded.
61 The plaintiff deposed she is unable to work and would require rehabilitation if she was to return to the workforce.
62 The plaintiff has very basic computer knowledge only, having recently completed a basic computer course through Adult Education. It was one day a week for four hours for a month. The course really concerned just learning how to send emails and where different things were on the computer.
63 The plaintiff is sick of being at home. She has bought a computer to occupy her mind.
64 The plaintiff agreed in theory, but not in practice, with the jobs suggested by the vocational assessor. She agreed retail was the work option that best appealed to her. “Once upon a time” she would have liked to have done the gaming work but she could not do it now because it involved a lot of heavy lifting, such as trays of money and “there was more to it than just sitting in a cage”.
65 When asked about waitressing and other similar jobs, the plaintiff explained that because of her back pain she really had to be aware of what she did. She would have a problem lifting trays.
66 Retail work would often involve lifting boxes, which she could not do. She could only stand for about half an hour or so before she had to sit or stand on one leg.
67 The plaintiff would “go okay” doing administration work but she would have to rest her back. She was okay doing things for a certain amount of time, but her back played up and she would pay for it
68 The plaintiff might be allowed to use her fit ball to try office work. Her ability to work in that field would be limited because after a certain time her back starts to really aggravate and she would then have to lie down for about half an hour to calm her back down.
69 In re-examination, the plaintiff said that she thought she could probably work part time as an administrative assistant for four hours a day, three days a week, working Monday, Wednesday and Friday, having a break on the days in between.
70 The plaintiff did not think she could do real estate work because she had been told by someone in that field that they could be in the car on the road for up to eight hours a day.
71 The plaintiff was advised by the insurer to find a suitable course at TAFE to enable her to seek some type of employment in the retail industry where she hopes she will be able to avoid lifting and repetitive bending. She rang TAFE and they sent her out some information.
72 The plaintiff has looked in the papers for work but she has not applied for a job. She denied she was “hanging out or hanging back” because of her case. She could not remember Dr Giddens suggesting to her that she had a capacity for full time work.
Details of the Plaintiff’s Earnings
Financial Employer Gross Gross Weekly
Year Earnings Earnings
2006 Arnolds CFD Pty Ltd $9,381.00 $180.40 Liquorland (Australia) Pty Ltd $1,943.00 $37.36 Government Allowance $7,666.00 $147.42 2007 Arnold CFD Pty Ltd $25,274.00 $486.03 Government Allowance $1,052.00 $20.23 2008 Arnold CFD Pty Ltd $31,672.00 $609.07 2009 Arnold CFD Pty Ltd $29,316.00 $563.76
The Plaintiff’s Medical Evidence
73 Cassandra White, osteopath, from Albury Osteopathic Clinic, wrote to the defendant’s paymaster, Mr Little, on 5 February 2008. Ms White advised that she had been treating the plaintiff since 21 January 2008. She noted the quality of the plaintiff’s movement in the lumbar spine was improved but she was still concerned about hypertonicity in surrounding musculature. Ms White advised the plaintiff would benefit from a follow up treatment in two weeks to help manage her condition and prevent relapse.
74 The Elmwood clinical notes were tendered relating to an examination on 31 December 2008. On that date it was noted:
“Low back pain for twelve days after lifting heavy things at work. No sensory symptoms or saddle anaesthesia. History of low back pain before. Having osteopath session without much improvement. Had massage therapy. No previous back x-ray. Advised patient to report [to] employer as work-related. Discussed about painkiller use with caution about possible side-effects.”
75 Dr Jenny Giddens from Central Medical Group has provided a number of reports.
76 Although the plaintiff said she had not seen Mr Thien, Dr Giddens wrote a letter of referral to him on 3 March 2009 for an opinion as to the plaintiff’s low back pain and left sciatica since the December incidents. She advised Mr Thien that the plaintiff was having physiotherapy and non-steroidal anti- inflammatories with only limited success.
77 Dr Giddens noted that a CT scan showed a broad based L5-S1 disc prolapse with some S1 nerve root impingement. She noted the plaintiff had been able to return to work since the injury and found it difficult to sleep due to pain in her left leg and difficulty walking, because that leg felt unstable and weak.
78 Dr Giddens last reported on 21 April 2010. She noted the plaintiff first presented at her clinic in relation to her back injury on 8 January 2009 when seen by Dr Eastman.
79 The plaintiff told Dr Giddens of the injury on the first date, after which she had a couple of days off and then she suffered further injury on the second date.
80 In Dr Giddens’ view, there was no doubt that the injury was a direct consequence of the plaintiff’s employment. She considered the plaintiff remained unable to participate in her pre-injury duties, in that she was unable to bend or lift and she was restricted in the length of time she could sit.
81 Dr Giddens considered, as such, the plaintiff was still significantly limited in her ability to work. She noted the plaintiff was currently attempting to undertake a computer training course with a view to obtaining qualifications in a job that would not involve any bending or lifting in the future.
82 Dr Giddens thought the plaintiff would be able to return to work in the future but in all likelihood this would not be for at least six months and would certainly not involve any physical activity other than very light duties. She also noted the plaintiff continued to require regular physiotherapy and would like to explore the possibility of acupuncture as well.
83 Mr Timms wrote to Dr Giddens on 16 October 2009, having reviewed the plaintiff that day.
84 Mr Timms advised that the plaintiff was a little better after the last steroid injection but noted the plaintiff still had pain in the neck and down the leg.
85 Mr Timms noted the recent MRI scan confirmed the persistent bulging disc at L5-S1 on the left which was not at the site of the plaintiff’s problem. In this situation, he thought if things were starting to improve he would certainly not push surgery which would normally be reserved as a last resort.
86 In the plaintiff’s case, Mr Timms advised complete physiotherapy and hydrotherapy courses and also to look at other modalities, such as acupuncture and osteopathy, to see if those could set the plaintiff in the right direction. He noted, once again, it was only if all those treatments were not sufficient that he thought surgical intervention could be considered.
87 As the plaintiff had improved a little bit after the last injection, Mr Timms hoped that, combined with physiotherapy and hydrotherapy treatment, and a little bit more time, her symptoms would be much more comfortable.
88 Marie Bucher, physiotherapist, from Inner Strength Physiotherapy, took over the plaintiff’s care in late 2009 from her previous physiotherapist, Richard Spry. Ms Bucher noted the plaintiff’s rehabilitation was progressing very slowly, with her low back pain and associated left leg pain still being very irritable. She considered, due to this, the plaintiff’s functional level was still inhibitive of her returning to work.
89 When she last reported in June 2010, Ms Bucher noted, clinically the plaintiff’s progress remained very slow and her low back pain and associated left leg pain was still inhibitive in her daily activities. She noted the plaintiff had been able to successfully attend a computer skills course and she had been able to do a lot of sitting using a fit ball instead of a chair, with regular periods of standing up to walk around and stretch. Ms Bucher commented that the plaintiff’s walking distance and quality of gait had also improved. The plaintiff could walk with minimal limp, increased trunk rotation and improved stride length for twenty minutes without significant increase in her pain levels.
90 Ms Bucher noted static sitting time in a chair and static standing time remained the plaintiff’s most aggravating activities and most inhibitive of return to work and past leisure activities. Objectively, spinal movements remained restricted.
91 Ms Bucher considered the plaintiff was not at a level where she could join a group class or independent gymnasium program without the risk of irritating her pain levels further. She noted that very specific exercises such as work on the clinical Pilates reformer, fit ball and some hands-on soft tissue work had enabled the plaintiff to slowly progress and continue with her work retraining.
92 Ms Bucher did not believe physiotherapy alone would resolve the plaintiff’s injury or relieve her pain, and that any surgical intervention would need to be fully embraced by the plaintiff to optimise rehabilitation. Ms Bucher considered that the pain management service at Wodonga Hospital may also be something to investigate in the future.
Medico-Legal Examinations
93 Mr Peter Scott, orthopaedic surgeon, first examined the plaintiff on behalf of Allianz Worker’s Compensation on 29 January 2009.
94 At that stage the plaintiff complained to him of low back pain present all the time and worse with prolonged sitting and standing, repetitive bending, heavy lifting or twisting or turning. There was left sided sciatica with radiation down the plaintiff’s leg to the outside of the calf to the hip.
95 At that stage walking and shopping were no longer possible, because of back and left leg pain. The plaintiff told Mr Scott she had suffered some anxiety a year ago which had resolved.
96 On examination, the plaintiff appeared to be in pain and walked slowly. There was a full range of movement and no abnormality in the upper limbs.
97 Movements of the lumbosacral spine were: flexion – 50 degrees; left and right lateral flexion and rotation – 10 degrees and extension was zero. There was marked pain experienced at the extremes. There was no evidence of any scoliosis. There was tenderness to deep palpation over the lumbosacral spine to the left and right of the midline posteriorly.
98 Straight leg raising to both sides was to 20 degrees on the horizontal associated with backache and radiation of pain into the left buttock and sides.
99 There was reduced appreciation of pinprick and touch over the lateral aspect of the left calf and some weakness of the left extensor hallucis longus tendon of the big toe.
100 Mr Scott believed that the defendant should accept liability for the plaintiff’s developed acute back strain and intervertebral disc lesion in the lumbosacral spine with left sided sciatica. He thought the plaintiff suffered from these conditions as a result of the work performed by her on the first and second dates. In his view, there was nothing to suggest a non work related factor being apparent. He thought there was no evidence of any psychosomatic disease.
101 Mr Scott considered the plaintiff’s problems at that time represented persistence of a condition which became apparent in December 2008 in relation to which employment was a significant contributing factor. At that stage he thought the plaintiff had no capacity for employment, but was unable to state for how long she would be disabled, as appropriate treatment had yet to be investigated.
102 Mr Scott considered osteopathic treatment was contraindicated in the presence of backache and sciatica. He thought the plaintiff required a CT scan before contemplating further management, which would certainly require the plaintiff to be treated with rest and the use of analgesics and anti- inflammatories and probably antidepressants in the hope that her leg symptoms could improve with the passage of time.
103 Mr Scott diagnosed a work-related discogenic problem in the lumbosacral spine, initiated under compensable circumstances on the two dates and from which there had been no recovery despite treatment given. He thought, in addition to the suggested treatment, the plaintiff may well require an epidural injection. He noted at that time the plaintiff showed features of a lower limb radiculopathy relating to sciatic nerve irritation. He thought her prognosis was uncertain and he recommended a review of her condition in three to four months’ time.
104 Mr Scott re-examined the plaintiff on 30 July 2009.
105 At that stage the plaintiff’s backache continued and it was in its chronic form, aggravated if the plaintiff stood for longer than half an hour or sat for more than five to twenty minutes, or if she performed any heavy housework. The plaintiff also experienced pain in her left groin and numbness in the left thigh and left calf.
106 On examination, movements of the lumbosacral spine were reduced in all directions with flexion 30 degrees, left and right lateral flexion and rotation 20 degrees and extension 10 degrees, and pain experienced at the extremes. The plaintiff complained of tenderness over the lumbosacral spine. Straight leg raising on the left to 25 degrees on the horizontal was associated with backache and sciatic pain.
107 There was reduced appreciation in pinprick and touch over the lateral aspects of the thigh and to a lesser degree over the outer aspect of the left calf, together with the reduced knee reflex, ankle reflex and probable also weakened action of the extensor hallucis longus tendon to the left big toe.
108 At that stage Mr Scott diagnosed a persistent work-related back problem with discogenic disease in the lumbosacral spine and an intermittent lumbosacral nerve root irritation arising out of the course of the plaintiff’s employment.
109 Mr Scott thought the plaintiff’s condition persisted and she had also developed an anxious, nervous or frustrated reaction magnifying her overall presentation. He thought she then had no capacity for work. He thought consideration may be given to a further spinal injection as the plaintiff did experience some relief following the May 2009 injection. He thought the plaintiff also may require some treatment for anxiety and frustration which required interpretation by a psychiatrist. He considered that her condition had not stabilised and her prognosis was uncertain.
110 Mr Scott considered that the plaintiff was unfit for work because of her chronic low back pain, lumbosacral nerve root irritation, anxiety and frustration, and he suggested a review in six months.
111 Mr Scott re-examined the plaintiff on 14 January 2010.
112 At that examination, the plaintiff said her chronic low back pain was no worse than on the previous examination. She complained of a constricting sensation of the left thigh, together with pain extending down the full length of her left leg on occasions, together with pins and needles in the toes of the left foot.
113 On examination, movements of the lumbosacral spine were flexion - 60 degrees; extension - 10 degrees; left and right lateral flexion and rotation - 20 degrees, with pain experienced at the extremes.
114 The plaintiff was tender to deep palpation over the lumbosacral spine musculature, left and right, of the midline posteriorly.
115 Straight leg raising on the left was to 20 degrees from the horizontal, associated with backache with pain radiating to her left thigh. Straight leg raising on the right was to 45 degrees, with associated backache.
116 There was reduced depreciation in pinprick and touch of the lateral aspect of the left thigh. There was a reduced left knee reflex. There was no other left or right lower limb abnormality of motor power, tone, sensation, reflex, activity or circulation.
117 Mr Scott thought the plaintiff’s current treatment appeared appropriate and he suspected she was going to require management for her chronic pain over an indefinite period in the future. He believed the plaintiff would find increasing difficulty in coping with activities of daily living if treatment was discontinued, particularly, the physical therapy and counselling which she was then having.
118 Having seen the rehabilitation report, Mr Scott noted the jobs considered to be suitable, but commented the plaintiff would be unable to stand for any length of time to carry out the duties of retail assistant, gaming work, a bar attendant or real estate agent. However, she would be able to take up some very light work which was clerical in nature, enabling her to sit and stand as she pleased and one in which she was computer literate, which was not the case at this point in time.
119 Mr Scott considered the plaintiff had a minimal capacity for work at present but did require more appropriate retraining, particularly in computer activities, enabling her to take up some significant work as a clerk in a situation where she was able to sit and stand as she pleased and one which did not require her to perform any repetitive bending or heavy lifting.
120 Mr Scott concluded that the plaintiff was genuinely well motivated and keen to return to the workforce but was frustrated because of the lack of recovery from her chronic back problem and associated intermittent lumbosacral nerve root irritation. He continued to believe that she would require retraining, particularly in computer skills, before returning to the workforce performing light clerical duties with restrictions as detailed.
121 Mr Isbister, orthopaedic surgeon, examined the plaintiff for the purposes of an impairment assessment on behalf of Allianz Worker’s Compensation on 3 March 2010.
122 The plaintiff told Mr Isbister she had had back pain prior to 2008 but no specific back injuries.
123 The plaintiff complained of constant low back pain, indicating the left side, radiating to her left thigh, which she described as suffering from a tight band around her thigh.
124 The plaintiff told Mr Isbister of some difficulties with domestic tasks and gardening and having to stop every twenty to thirty minutes to relieve her back symptoms when driving. She also told him she was restricted in walking for exercise and attending barbecues and road trips.
125 On examination, he noted the plaintiff appeared to be in pain. She had difficulty walking on her heels and toes because of apparent pain and possibly weakness of her left leg. All passive movements of her hips appeared to cause back pain. Posteriorly, the plaintiff had tenderness in her back, more to the left side at L5-S1 level. When lying supine, the plaintiff had her hips and knees flexed.
126 Mr Isbister had available to him the May 2009 CT scan and the January 2009 MRI scan.
127 In Mr Isbister’s opinion, the plaintiff had suffered a musculo ligamentous strain injury of the lumbosacral spine. He thought she had evidence of probable facet joint arthropathy where there was referred pain to her left leg. He thought however, there was no evidence of a frank radiculopathy.
128 Mr Isbister thought the plaintiff’s condition had reached maximum medical improvement and was stable, noting the plaintiff still suffered from an anxiety depressive reaction which appeared to be associated with the condition.
129 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 2 August 2010.
130 On examination, the plaintiff described constant low back pain which was accompanied by a feeling of an elastic band around the entire left upper thigh and groin region. She described back pain rather like a pinging sensation with severity fluctuating between seven and nine out of ten. She advised that over the past twelve months she had been aware of some pins and needles in the left leg and toes but at present that had resolved. Her pain caused significant disturbance of her sleep.
131 On examination, the plaintiff appeared generally well; however, she
demonstrated a left sided antalgic limp and, when standing, described pain
with weight bearing on the left leg.
132 The thoracolumbar spine was straight. Lumbar flexion was to 40 degrees with 10 degrees of extension, both associated with significant pain, particularly extension. Lateral flexion to the right was 15 degrees and the left, 10 degrees, both causing some pain. Tenderness was described at the lumbosacral junction into the left side.
133 When supine, the plaintiff indicated she could not extend both hips. Flexion of the hips was possible to 70 degrees, restricted by the complaint of significant back pain. She also indicated that active straight leg raising, particularly on the left, caused significant back pain. Passive leg raising was approximately 40 degrees bilaterally, limited by back pain. Power, sensation and reflex in both lower limbs were all normal.
134 Mr O’Brien had available the January 2009 CT scan and the October 2009 MRI scan of the lumbar spine.
135 Mr O’Brien concluded the plaintiff now presented with very subjective signs, predominantly demonstrating restriction of lumbar movement without any clinical evidence of nerve root compromise or in fact radiculopathy. He noted investigations appeared to show very mild disc bulging at L5-S1 without nerve root compromise, which in fact would correlate with the clinical findings.
136 Mr O’Brien thought it would appear the plaintiff had sustained a discogenic injury causing significant back pain without nerve root involvement. He thought on the history one would consider that employment was a significant contributing factor to the plaintiff’s current lumbar pathology.
137 Mr O’Brien noted certainly it would appear the plaintiff would require ongoing conservative treatment. Given the clinical course, it seemed likely to him that her prognosis was poor and the likely scenario was that the plaintiff would continue to experience chronic back pain.
138 Mr O’Brien thought the plaintiff certainly presented with moderate disability. He considered she would be incapable of a return to her pre-injury occupation which did involve heavy physical duties. He thought on her presentation that she was now indeed totally incapacitated and would thus consider her not capable of returning to any form of employment, even light duties, as the pain described was aggravated by all positions, including sitting and standing.
139 Mr O’Brien suggested even light duties would be beyond the plaintiff’s physical capacity. He considered it appeared she was totally incapacitated and this was likely to be a permanent situation. Further, he thought the plaintiff was certainly restricted in her general, social, domestic and recreational activities.
140 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff on 2 August 2010.
141 On examination, the plaintiff walked with a slight limp, with a slightly disturbed gait, favouring her left hip.
142 There was limited flexion of the lumbosacral spine to 40 degrees, marked limitation of left and right lateral flexion and rotation at 10 degrees. The plaintiff had only 5 degrees of extension and this caused discomfort in the low back.
143 The plaintiff had great difficulty lying flat on her back and preferred to have her hips and knees flexed. Straight leg raising of both legs was markedly limited and caused back discomfort.
144 Mr Dooley could find no evidence of radiculopathy affecting either the plaintiff’s left or right leg.
145 Examination of the plaintiff’s left hip joint caused discomfort but there was no limitation of movement in any direction in her left hip joint. The plaintiff had no flexion contracture. Forward flexion to 120 degrees caused back discomfort, no limitation of abduction and normal rotation.
146 There was no wasting or weakness in any of the muscle groups in either leg. The knee and ankle reflexes were equal and active. The knee reflexes were slightly diminished but equal and the ankle reflexes were both active. There was no sensory loss.
147 Mr Dooley noted the February 2009 CT scan showed a small left paracentral disc prolapse abutting but not compressing the first sacral nerve root.
148 Mr Dooley considered, as a result of the nature of her work from February 2006 up until the said dates, the plaintiff had suffered injury to her degenerative lumbosacral disc with referred pain to her left leg and resulting from a minor disc prolapse of the degenerate lumbosacral disc at the L5-S1 level.
149 Mr Dooley thought the plaintiff’s employment was a significant contributing factor to her current injury incapacity.
150 In Mr Dooley’s view, the plaintiff’s prognosis was difficult to forecast. He noted the plaintiff had improved a little since the injection on 15 May 2009 but she continued to experience back pain with referred pain to the left groin and hip but she had no signs of radiculopathy affecting her left leg.
151 Mr Dooley thought there was a reasonable chance that in the next six to twelve months the plaintiff’s leg pain would subside largely or completely and her back pain would improve to the point where she could resume sedentary type work.
152 However, Mr Dooley believed the plaintiff was permanently incapacitated to return to her pre-injury duties which involved repetitive bending and lifting.
153 He thought the probabilities were her symptoms would be exacerbated by prolonged sitting, standing, driving or stooping. He considered the plaintiff permanently unfit to return to her pre-injury duties.
154 Mr Dooley thought the plaintiff would benefit greatly from a return to suitable light work, which would improve her both physically and mentally. He thought surgery was contraindicated and unlikely to help. Also, he thought that further recovery would probably be natural and uninfluenced by continuing specific physical treatment or other treatments.
155 Mr Dooley would advise the plaintiff to commence part time employment only, i.e., four to five hours per day, three or four days a week in suitable sedentary type work, and if she reacted well, both physically and mentally to a return to work, then the hours should be increased. In Mr Dooley’s view, probably the maximum number of hours the plaintiff would be able to do in the first year after a return to work would be twenty to twenty five hours a week.
156 Mr Dooley thought the practical problem was that no prospective employer was likely to take the plaintiff on as she had been off work for a long period for a work-related injury. He did not think it was likely she would benefit from any further surgical or other treatment.
157 Mr Dooley concluded, although it was difficult to give an accurate prognosis, in the majority of cases, where she had suffered only a minor disc prolapse without neurological involvement which did not require surgery, the prognosis for natural recovery was good and as such he thought the plaintiff would be able to resume sedentary type work in administration. However, he considered she was permanently incapacitated to return to her pre-injury work which involved repetitive lifting and bending.
158 The plaintiff was examined by Dr Castle, occupational physician, on 6 September 2010.
159 The plaintiff told Dr Castle she had constant lower back pain which she described as a “pinging“ in her lower back. She said she could sit for four or five minutes. She could stand for somewhere between seven and ten minutes and could walk for about the same period of time, sometimes for up to twenty minutes. The plaintiff told Dr Castle that she woke every twenty minutes during the night. She could not lie on her back with her legs out straight and she had paresthesia of the left toes at times.
160 The plaintiff described her pain was six or seven out of ten when interviewed, and at worse ten out of ten and at best five out of ten.
161 On examination, the plaintiff sat or stood alternatively for the whole examination. She was tender over the L5-S1 intervertebral segment. Flexion was to 40 degrees, extension 10 degrees, right and left lateral flexion 20 degrees and left and right rotation 10 degrees. Straight leg raising was to 20 degrees on the right and 5 degrees on the left.
162 Ten centimetres below the tibial tuberosity of the plaintiff’s right calf measured 36 centimetres, and on her left, 35 centimetres. The plaintiff’s left ankle jerk was absent. There was decreased muscle power for the plaintiff’s left foot dorsi flexors, plantar flexors and hamstrings. Sensation was decreased in an S1 distribution over her left leg. Sciatic stretch test was negative on the right and on the left.
163 Dr Castle had available the report of the January 2009 lumbar spine CT scan which showed an L5-S1 broadly based paramedian disc protrusion contiguous with a left S1 nerve root.
164 Dr Castle thought the plaintiff injured her back at work on the said dates. There had been no improvement with treatment. The plaintiff had lower back pain and was very restricted in sitting, standing and walking tolerances. Dr Castle concluded examination of the plaintiff’s lumbosacral spine showed restricted movement, a left radiculopathy with loss of her left ankle jerk, decreased power and decreased sensation which were all, in his view, consistent with a disc lesion compressing the L5-S1 nerve roots. Dr Castle thought the plaintiff had no capacity for work at that time because of her restricted sitting and standing and walking tolerances.
165 He concluded the plaintiff was suffering from left S1 nerve root compression due to an L5-S1 intervertebral disc lesion. He thought the plaintiff’s employment was a significant contributing factor because of the frequent and repetitive lifting involved.
166 Dr Castle noted the plaintiff’s social and recreational life had been greatly reduced, as had her domestic activities become restricted. In his view, such incapacity would continue for the foreseeable future and it was unlikely there would be any further improvement.
167 Dr Castle considered that the plaintiff’s physical back injury and impairment caused her to be incapacitated for her pre-injury employment as a sales assistant which required frequent bending, standing and serving customers.
168 Dr Castle noted the plaintiff is aged fifty four and lives in Wodonga. That made it more difficult for her to find employment. She had a basic education to Year 10 and had done an office administration course and also a basic computing course. He noted all her work experience had been in retail sales apart from a brief period of office work.
169 As the plaintiff had an L5-S1 intervertebral disc lesion, Dr Castle thought the chances of her being able to find any form of employment now were low. If she were able however to find work, she would need to do a staged return. She would need to not lift any more than five kilograms, be able to take rest breaks as required and sit or stand if she needed to. Considering all those facts, he did not consider she had a capacity for employment, either full time or part time, and this situation was permanent.
170 Dr Castle commented that future treatment was unclear at present. He considered the plaintiff would benefit from participation in a multi-disciplinary pain program and needed regular monitoring by her general practitioner. She needed to take analgesics. He thought it unlikely she would have surgery, but that could not be ruled out. He thought the plaintiff’s prognosis was guarded and he expected she would remain much the same as she now is.
Investigations
171 Dr Syn of the Elmwood Medical Centre organised a lumbosacral spine x-ray on 5 January 2009.
172 It was noted alignment was normal. There was no fracture or evidence of traumatic injury. Disc space heights were preserved. There was some minor spondylosis seen at L2-3 and L3-4 and no other bony abnormality was seen.
173 A CT scan of the lumbosacral spine taken on 2 February 2009 showed a small left paracentral disc prolapse abutting but not compressing the first sacral nerve root.
174 Dr Eastman organised a CT scan of the plaintiff’s lumbar spine on 30 January 2009.
175 At L2-3, there was a mild disc bulge that was slightly more prominent on the left. There was no overt disc protrusion. The central canal was not generous but appeared adequate. There was no foraminal stenosis or significant facet joint OA change.
176 At L4-5, there was a minor disc bulge but no disc protrusion. There was no central or foraminal stenosis and the facet joints appeared satisfactory. At L5- S1, there appeared to be a small broad-based left paramedian disc protrusion which would be contiguous with a left S1 nerve root although it did not appear to be significantly displaced. There was no bony central or foraminal stenosis and the facet joints appeared satisfactory.
177 There appeared to be a shallow left paramedian disc protrusion at the lumbosacral junction contiguous with the left S1 nerve root. It was noted this could cause nerve root irritation.
178 No further potential disc protrusion was evident. Although the central canal was not particularly generous, there was no significant central or foraminal stenosis.
179 An MRI scan of the lumbosacral spine was carried out at Dr Gidden’s request on 6 April 2009.
180 It was noted there were mild degenerative changes at a number of disc levels described. At the L5-S1, there was a shallow left posterolateral disc herniation which contacted but did not appear to be compromising the left S1 nerve root. It was noted clearly clinical correlation would be of value.
181 An MRI scan of the lumbar spine was carried out on 14 October 2009 at the request of Mr Timms.
182 It was noted there was dehydration of the L4-5 and L5-S1 discs which were of normal height. There was a posterior disc bulge at L5-S1. Overall canal dimensions were normal. The distal spinal cord appeared normal. On parasagittal scans, the exit foramina appeared normal.
183 There was a left paracentral disc bulge on the axial scans of L5-S1. It just abutted against the left S1 nerve root. The right S1 and both L5 nerve roots appeared normal at that level. At L4-5, there was mild lateral disc bulge without evidence of nerve root compression. At L3-4, there was mild left lateral disc bulge without evidence of nerve root compression. Incidental note was made of a patchy bone marrow signal throughout the lumbar spine which was noted to be a non specific finding. No other abnormality was seen.
Plaintiff’s Compensation Claim
184 The plaintiff is currently in receipt of weekly payments of compensation.
185 By letter dated 10 March 2010, Allianz Worker’s Compensation advised the plaintiff that her claim for compensation pursuant to section 98C of the Act had been accepted in relation to her lower back injury which occurred on the second date.
The Defendant’s Medical Evidence
186 A number of extracts from the plaintiff’s medical files were tendered.
•
On 8 December 2000, Dr Giddens wrote a letter in relation to rheumatoid arthritis.
•
On 19 March 2001, Dr Tillett noted he had seen the plaintiff with back and small joint pains:
“Not thought to be RA by Timms.”
• On 6 June 2008, Dr Giddens noted: “Spent yesterday painting moving head a lot and has since got vertigo++ again. Has appointment in four weeks. Neck stiffness from trying not to move neck.”
• On 8 October 2008, Dr Giddens noted: “Vertigo improving. Gets mid thoracic back pain but does a lot of lifting at work. Past history osteomyelitis spine. Examination: tender at T7, good range of movement.
X-rays of the thoracic spine requested.”
• On 8 January 2009, Dr Eastman noted: “Hurt back at work on 16 December 2008. Was leaning over capsicum bin to empty – sudden onset of back discomfort – ‘twinges’. Then had a couple of days off. On 19 December lifting 10 to 15 kilogram box of rockmelon and felt back go – across lower back. Reports shooting back pain for one week after 19/12. Saw osteopath twice and some improvement with osteopath.
Then saw doctor on 31 December 2008 (Elmwood Medical Centre) because of ongoing pain – referred for an x-ray. Saw doctor at Elmwood again yesterday – had WorkCover certificate completed but only recommendation was that she see an occupational doctor. (No advice re return to work made on certificate).
X-ray on 5 January 2009: Minor degenerative changes. Was sent home from work on 19 January 2008. Hasn’t been able to return to work – reports pressure from work. Noted has had intermittent back pain since starting work at Arnolds. Seen osteopaths in that time. Usually settles within a week.”
187 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, on 8 July 2010.
188 The plaintiff complained to him of band like pain around her left hip, both in the groin and in the buttock, with a sensation of a pulling discomfort across the lower back.
189 On examination, the plaintiff could not sit comfortably throughout the consultation. She explained she found some chairs difficult to sit in. She was able to walk without a limp.
190 The plaintiff’s spinal curvature was normal and only 45 degrees of spinal flexion was possible. She was tender over the lower lumbar spine and left sacroiliac area. Extension was painful. There was some resistance to leg raising but her legs themselves were neurologically normal.
191 Mr Jones examined the May 2009 CT scan when a CT-guided injection was made at the L4-5 level.
192 Mr Jones also noted results of a plain x-ray of the lumbar spine showed no evidence of traumatic injury with some minor spondylosis at L2-3 and L3-4, probably in keeping with the plaintiff’s age.
193 Mr Jones noted a report of the January 2009 CT scan indicated there was no discrete prolapse or nerve root compression as such but there appeared to be degenerative bulging at all levels in the lumbar spine.
194 Mr Jones concluded the plaintiff had persistent and presumably multi level discogenic back pain as the cause of her current work incapacity. He noted a conservative approach to that problem had been made by her treater so far and there did not appear to be any indication for surgery.
195 Mr Jones commented that the plaintiff’s employment with the defendant was an active one, involving lifting and a good deal of repeated bending.
196 In terms of the presence of any functional component, Mr Jones noted there was no doubt the plaintiff was emotionally upset by her vastly altered circumstances, compounded by what was described as WorkCover’s unsympathetic attitude. Whether that could be described as an adverse psychological problem, he was unable to say. He thought there may be an element of depression in the plaintiff’s symptoms which would require psychiatric evaluation.
197 Mr Jones noted quite frequently people may show physical signs consistent with a functional illness, such as severe pain on axial compression of the spine or simulated shoulder rotation. These signs were absent when he saw the plaintiff.
198 Mr Jones believed there had been a genuine loss of industrial capacity in the plaintiff’s back. She could not return to her previous employment with the defendant. He thought a light work capacity probably did exist or could be developed and it appeared from the plaintiff’s affidavit that retraining may be necessary.
199 Mr Jones thought it difficult to be specific as to the four jobs suggested in the vocational report, noting the duties encountered were likely to vary widely from workplace to workplace and from job to job. He thought the plaintiff could probably function as a receptionist and personal assistant but might struggle with general sales and operating a checkout.
200 Having examined the specific job descriptions, particularly the task of receptionist which included general receptionist, admission clerk, hotel/motel receptionist and medical receptionist, Mr Jones thought retraining would be required.
Vocational Evidence
201 The Rehabilitation Company provided an NES Vocational Assessment Report on 18 August 2009. In order of priority, the identified suitable employment options were retail assistant, gaming worker, bar attendant, administration agent and real estate property manager.
202 The salary for a gaming worker was $503.50 per week; administration assistant - $543.00; retail assistant - $606.10 and real estate property manager -$1,081.00.
203 The plaintiff was referred to NES Vocational Re-education Assessment by Allianz Worker’s Compensation for the purpose of supporting retraining as recommended in the initial Assessment Report.
204 It was noted at the time of the vocational assessment that the plaintiff was certified unfit for work. She had since been upgraded and her current capacity for work was certified by a nominated general practitioner, Dr Giddens, for full time hours with the following restrictions:
ƒ sitting up to fifteen to thirty minutes ƒ standing up to twenty minutes ƒ no bending or lifting ƒ minimal stairs ƒ walking up to fifteen minutes ƒ driving up to thirty minutes. 205 It was noted at a case conference on 3 September 2009, the vocational recommendations were discussed with Dr Giddens, who provided support for both the administration assistant and real estate property manager roles.
206 The NES report referred to Mr Peter Scott’s report dated 14 January 2010 where he commented on the plaintiff’s suitability for the four jobs as set out at paragraphs 118-120 of this judgment.
207 Based on that view, it was considered that retraining focus on increasing the plaintiff’s employability as an administration assistant and/or real estate property manager.
208 Three retraining recommendations were made, namely, a property agent’s representative course, Microsoft Word 2007 - intermediate and Microsoft Excel 2007 - beginners.
Overview
209 I accept the plaintiff suffered a compensable injury to her lower back in the course of her employment on both the first and second dates.
210 I accept that the plaintiff has suffered a discogenic injury in relation to which some medical examiners have found nerve root involvement.
211 Prior to 2008, the plaintiff had had some problems with her back due to her work duties, in relation to which she required osteopathic and naturopathic treatment organised by the defendant.
212 However, prior to December 2008, the plaintiff was able to work a minimum of thirty two hours a week in a job involving heavy lifting and bending. She did not require ongoing medication, nor did she miss any time from work as a result of her back condition.
213 The plaintiff’s situation changed after the second date and she has not worked since that time.
214 The plaintiff is presently in receipt of weekly payments of compensation. Further, her Section 98C claim was accepted in March 2010 in relation to a back injury suffered on the second date.
215 The issue for determination in this application is whether the plaintiff’s back injury is serious and permanent.
216 I accept the plaintiff is a genuine, credible witness who is genuinely motivated and keen to return to work but is frustrated by her lack of recovery from her chronic back condition.
217 Although there was video surveillance as set out in the index to the defendant’s Court Book, no film was shown.
218 Whilst Mr O’Brien noted the plaintiff presented with very subjective signs and he thought that there was perhaps an element of emotional upset in her presentation, I accept that the plaintiff’s back complaint is organically based.
219 I accept that the plaintiff continues to suffer from constant lower back pain, particularly on the left side, radiating into the left leg.
220 The plaintiff has problems stretching out her legs, as demonstrated on medical examination. This problem has resulted in ongoing difficulties with being able to get comfortable to sleep for extended periods – a very considerable diminution in the plaintiff’s enjoyment of life as Maxwell P commented in Haden Engineering Pty Ltd v McKinnon [2010] VSCA at paragraph 45.
221 I accept that the plaintiff does not take medication, albeit she continues to suffer pain, because of her previous heroin addiction, and also problems associated with that addiction, about which she has told various doctors.
222 The plaintiff continues to require physiotherapy, together with clinical Pilates.
223 I accept that as a result of her lower back injury, the plaintiff is no longer able to do unrestricted manual work – a view supported by all medical practitioners.
224 This in itself is a serious consequence for a woman with limited education and a work history of mainly manual work in supermarkets. Further, the plaintiff’s back condition poses a problem for her engaging in administrative work for which she has limited qualifications and basic computer skills.
225 Whilst the plaintiff can still do some housework, she requires assistance with heavy cleaning. She has bought a smaller vacuum cleaner because her old one was too heavy to carry. She is unable to mop because she cannot move the bucket. She is able to shop alone but has changed her way of carrying shopping bags, evening out the load so as not to put so much pressure on her back.
226 The plaintiff’s affidavit evidence that her back injury significantly interferes with her social life, social tennis and also her ability to go dancing, social activities which she previously enjoyed, was unchallenged in cross examination.
227 I accept that the plaintiff’s back condition is likely to continue to affect her into the foreseeable future. Whilst Mr Dooley was somewhat more optimistic in this regard, Mr O’Brien considered the plaintiff’s prognosis to be poor and Dr Castle thought it was guarded. Mr Scott suspected that the plaintiff was going to require management for her chronic pain over an indefinite period in the future.
228 Taking into account all the evidence, I am satisfied that the plaintiff has a serious and permanent injury to her lower back.
229 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
Loss of Earning Capacity
230 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 forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 231 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. 232 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
233 “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.
234 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.
235 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.
236 I am therefore required to determine a “without injury” earnings figure.
237 The parties agreed that the plaintiff’s gross earnings in the 2007/8 financial year of $31,672 or $609 per week was the appropriate “without injury” figure.
238 The plaintiff’s present income from personal exertion is nil.
239 To succeed in this application, the plaintiff must establish that she has a permanent loss of earning capacity of forty per cent. Thus, she must establish that she does not have the capacity to earn in excess of $360 per week.
240 Counsel for the plaintiff’s primary submission was that the plaintiff had no capacity for suitable employment.
241 In the alternative, he submitted that at best the plaintiff had the capacity to work very limited part time hours of twelve hours per week working four hours per day on Monday, Wednesday and Friday, as the plaintiff herself indicated she was prepared to try if she had the ability to sit and stand as she wished.
242 Counsel for the deferent submitted the plaintiff had a capacity for full time work in jobs identified in the vocational report, namely; gaming worker ($503 per week) administration assistant ($543 per week) retail assistant ($606 per week) and as a real estate property manager ($1,081 per week).
243 Although all medical practitioners agreed that the plaintiff no longer has the capacity for unrestricted manual work, their views varied as to her capacity for lighter employment.
244 Mr O’Brien considered the plaintiff to be totally incapacitated, as did Dr Castle, who thought that if she was able to obtain work it would have to be on the basis of a staged return with a five kilogram lifting limit, rest breaks and the ability to sit and stand as she wished.
245 A middle ground was taken by Dr Giddens, who reported in April 2010 that she thought the plaintiff will be able to return to work in the future but in all likelihood this would not be for at least six months and then on very light duties.
246 Mr Dooley’s view was not dissimilar. He thought the plaintiff could start work for four or five hours per day, three or four days a week at suitable sedentary type work. Then if she reacted well, the maximum hours she could work in the first year would be twenty to twenty five hours a week.
247 Mr Scott and Mr Jones did not place restricted hours on a return to work with retraining in a clerical or administrative role.
248 In my view, because of her back condition, the plaintiff is clearly not suited for waitressing or gaming work which would involve lifting duties, but she does have a capacity for part time clerical work.
249 Her capacity to perform such duties is limited however by her difficulty sitting for extended periods, as evidenced by her problems with the TAFE course where her back played up in the four hour weekly sessions.
250 I accept as medical examiners and the plaintiff’s treating physiotherapist have described, that static sitting remains the plaintiff’s most aggravating activity and most inhibitive of a return to even part time work.
251 I accept that the plaintiff could work four or five hours, three days a week in a clerical role, having a rest on the days in between. On the figures before me, working twenty hours per week, the plaintiff would earn $270 as an administration assistant.
252 I am satisfied that for the foreseeable future the plaintiff would not have a capacity to work in excess of half time hours and she therefore has suffered the requisite loss of forty per cent, not being able to earn more that $360 per week.
253 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g) of the Act.
254 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied that 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 forty per cent or more.
255 As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
256 Accordingly I also grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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