Moutsos v Peter MacCallum Cancer Institute

[2020] VCC 424

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION	Revised Not Restricted Suitable for Publication
SERIOUS INJURY LIST

Case No.  CI-19-01076

VOULA MOUTSOS	Plaintiff
v
PETER MACCALLUM CANCER INSTITUTE	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2019
DATE OF JUDGMENT:	18 February 2020
CASE MAY BE CITED AS:	Moutsos v Peter MacCallum Cancer Institute
MEDIUM NEUTRAL CITATION:	[2020] VCC 424

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

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

Legislation Cited:  Accident Compensation Act 1985, s134AB

Cases Cited:         Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Meadows v Lichmore Pty Ltd [2013] VSCA 2014; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 2274; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd& Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

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

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Gorton QC with Ms M Tsikaris	Adviceline Injury Lawyers
For the Defendant	Ms M Cameron	Wisewould Mahoney

HER HONOUR:

Preliminary

1This is an application for leave to bring proceedings pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) in relation to an injury suffered by the plaintiff during the course of her employment with the defendant as a medical records clerk from 1991 to April 2015 (“the period of employment”) .

2       On 10 April 2015 (“the said date’), whilst at home, the plaintiff first experienced a shooting pain in her left leg;[1] however, it was not contended by the defendant that the plaintiff did not suffer injury in the course of her employment.   

[1]Transcript (“T”) 1

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

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

4       The body function said to be impaired is the lumbar spine.

5By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:

“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

6The plaintiff also brings an application pursuant to clause (c):

“permanent severe mental or permanent severe behavioural  disturbance or disorder.”

7       The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”.  Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[4]

[2][1998] 3 VR 833

[3](1995) 21 MVR 314

[4]At 846

8       Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[6]

[5]Mobilio v Balliotis (supra) at 833

[6]See also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.

9       A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c).[7]

[7]See Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227

10      In the alternative to the application under clause (a), the application pursuant to clause (c) related to psychiatric non-organic chronic pain;[8] however, counsel for the plaintiff submitted the plaintiff’s condition is principally organically based.[9]

[8]As diagnosed by Mr Simm and Dr Bloom

[9]T2

11The plaintiff bears an overall burden of proof upon the balance of probabilities.

12I 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.

13Subsection (h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

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

15      Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

16      Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

17      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[10] and Meadows v Lichmore Pty Ltd[11] in reaching my conclusions.

[10](2005) 14 VR 622

[11][2013] VSCA 201

18The plaintiff swore two affidavits and was cross-examined.  Also in evidence were medical reports and other material.  I have read all the tendered material.

19      Counsel for the plaintiff indicated the real dispute was likely to be loss of earning capacity “but, of course, everything was in issue”.[12]

[12]T6

20 In general terms, counsel for the defendant said there were issues as to disentangling between organic and non-organic causes of the plaintiff’s pain,[13] and then, otherwise, the plaintiff’s capacity to work, with Dr Bloom saying there was no physical reason she could not work full time. It was also questioned why the plaintiff, in fact, stopped work in October 2016, when she was working 24 hours a week on light duties.[14]

[13]See Meadows v Lichmore Pty Ltd (supra)

[14]T7

The Plaintiff’s evidence

21      The plaintiff swore her first affidavit in August 2018.  She swore a supplementary affidavit in November 2019.

22      The plaintiff was born in Greece in August 1963 and came to Australia as a baby.  She is presently aged fifty-six.  She is single and lives with her elderly mother. 

23      The plaintiff completed Year 12 at Collingwood Education Centre.[15] She enjoyed school and had a happy childhood.  She was, however, not good at school and failed a number of her Year 12 subjects.  She has not had any formal education since.  She does not have a mobile phone, a car or a computer.[16]

[15]T13

[16]November 2019 affidavit

24      In the 1980s, the plaintiff did a small computer course, but she does not really know how to operate a computer.  She can just send emails and maybe do a Google search “if the computer is open”.[17]

[17]T14

25      After completing high school, the plaintiff commenced work as a receptionist with a wholesale confectionary company in Fitzroy, and remained there for about six years.  This company was a family business.  The plaintiff did not really deal with the public.  She answered and made phone calls as necessary and took small orders.  There was no computer work involved in this job.[18]

[18]T14

26      The plaintiff then worked at Prince Henry’s Hospital in Medical Records for three years in a role similar to her later work with the defendant.[19]

[19]T15

27      On 18 July 1991, the plaintiff commenced work with the defendant, again in Medical Records, initially located in Lonsdale Street, Melbourne and then relocating to East Melbourne.

Medical history

28      The plaintiff underwent surgery for a congenital hip problem when she was three or four.  She was able to participate in sports at school and did not recall having any significant problems thereafter.

29      In 2005, the plaintiff was referred to an orthopaedic surgeon, Mr Michael Armstrong, as she was experiencing some pain in her hips.  She ultimately underwent a left hip replacement in August 2010 performed by Professor Peter Choong, orthopaedic surgeon (“the hip surgery”).           

30      After the hip surgery, the plaintiff was cleared to return to work by Dr Desai, general practitioner, who certified she should avoid pushing heavy trolleys and lifting more than 5 kilograms.  This certificate was rejected by the defendant and the plaintiff was asked to provide a full clearance certificate, otherwise she had no job to return to.   She went back to her doctor and pleaded with him to change the certificate so that she could return to the job she loved.[20]

[20]It was not suggested by the defendant that the plaintiff’s hip was relevant o her present condition T 5

Duties with the Defendant

31      In her role as a patient’s records clerk, the plaintiff’s duties involved retrieving medical files from the filing bays.  There were approximately fifteen bays which were approximately 1.8 metres in height, with five or six shelves at various heights. 

32      The files were voluminous and although some were small, others were five or six volumes.  If the files comprised many volumes, two or three would be bound together with elastic bands.  The plaintiff lifted them together so as not to separate the volumes and to ensure none of the files would be misplaced or lost.  The files were closely packed together and at times it was difficult to retrieve them from the shelving and even more difficult to return them. 

33      The plaintiff had to push with a lot of force with one hand and try and push the files in with the other hand.  In order to reach the top shelf, she had to reach above shoulder height. 

34      The plaintiff was required to retrieve hundreds of files per day for the doctors, for research and for the clinics.  Having retrieved the files, she put them in a trolley and then wheeled the trolley to the desk.  She took the files out and placed them in the outgoing trolley for the relevant clinic.

35      The plaintiff had to manoeuvre the files into and out of the trolley.  At one stage, the defendant had security personnel wheeling the trolleys to the required destinations across multiple floors of the building and she had to retrieve, track and bundle files into the trolleys in preparation for them to be taken to the clinic; however, for some years before 2015, she was required to take the file-laden trolleys to the clinics. 

36      There was some scanning of documents required, as well as typing and filing.  The plaintiff also had to action email requests and look up patient information on the computer.  She had online training at work in how to use that software.[21]

[21]T20

37      Old histories were kept in storage offsite and when they were retrieved, they arrived in boxes and were left by the couriers on the floor.  The plaintiff was required to process the histories and take them to the clinic or to research, wherever they were required.  She had to lift the files out of the boxes, which were placed on the floor, and had to bend down into the boxes to retrieve files.

38      The work the plaintiff performed over the years required constant lifting, bending, reaching and pushing of weights that were between 10 to 20 kilograms. 

39      Over the years, the plaintiff felt intermittent back pain which required brief periods of time off work and for which she utilised her sick leave.  She suffered an injury to her back in 1997 due to lifting heavy files into the filing bays.  She could not recall whether a claim for compensation was made at that time. 

40      The plaintiff submitted a Claim for Compensation in April 2004 but she did not receive weekly payments as a result thereof and used sick leave when she needed to rest.  She believed that she paid for her own physiotherapy and over-the-counter medication and cream, like Voltaren.  The defendant may have funded some treatment.  The plaintiff also used heat packs and rested.

41      The plaintiff was able to continue undertaking her full duties until April 2015.

42      On the said date, the plaintiff was at home on annual leave when she struggled to get out of bed and she had shooting pain in her left leg.  She had not done anything out of the ordinary.  It was Orthodox Good Friday and she was planning to go to church to prepare the flowers.  She could not walk and had pain down her left leg. 

43      Following the said date, the plaintiff rested for a few days in bed before going to see Dr Desai on 15 April 2015.  He prescribed some pain medication.  The plaintiff did not report the injury at work immediately because she thought the pain would be transient and improve, as it had on previous occasions. 

44      The plaintiff remained off work on sick leave until 29 May 2015.  She then submitted a WorkCover claim as she was not improving.  The claim was accepted.

45      The said date was the first time the plaintiff experienced such severe symptoms.  In the past, she had just niggling back pain from which she would recover with a bit of rest, heat packs and medication.  She had not previously suffered from referred pain into her leg.

Return to work

46      The plaintiff went back to work on normal hours, but modified duties on 1 June 2015.  It was too much for her, so within a few weeks, Dr Desai certified a reduction in her hours.  Initially, he certified that she could work four days a week and he then further reduced her hours to three days a week.

47      The modified or light duties comprised essentially scanning and checking documents at the computer for the bulk of the plaintiff’s shift.  She also sorted the mail, which was basically just opening mail, and answering the telephones.  She could sit and stand at will and was not permitted to lift any weight greater than 2 kilograms.

48      The plaintiff felt under constant pressure with the scanning duties as the amount she had to do was increased whilst she was performing the modified duties.  She was told she could leave if she could not do the work. 

49      The scanning work was not intended to be a permanent arrangement.  That job was arranged by the defendant to enable the plaintiff to participate in her return to work program.  The scanning was normally only a small component of the overall duties of a patient records clerk and when the plaintiff was performing only those duties, the other clerks were not undertaking them as part of their duties.  The plaintiff was well aware she would not be able to continue in the light-duties role indefinitely and it was only supposed to be a transition to her pre-injury duties which she knew she could not possibly return to.[22]

[22]Plaintiff’s second affidavit

50      The scanning job which the plaintiff undertook on her return to work, was the lightest of duties.[23]  She was not lifting anything, including the boxes she normally had to lift when they were full of paperwork.  She was getting help.  She was just sitting and scanning and her hours were gradually reduced as she was not coping.  She was later moved to the mail job and answering the telephone.[24] 

[23]T19

[24]T22

51      Sitting all day when scanning was aggravating the plaintiff’s back and making her tired.  There was a quota, and she had to be fast and sit all day, otherwise she could not do the quota.[25] 

[25]T37

52      In re-examination, the plaintiff confirmed her slowness doing the scanning work.  She was working as quickly as she could, with assistance from other workers to lift the boxes, as they were very heavy.  She could not really have done that job without their help. 

53      The plaintiff denied that she was coping quite well with her work during 2016.  She was in pain and slow at her job.  The defendant asked her why she could not keep up with the stacks.  She was trying to keep her job and that is why she was sitting all day, when she should have been getting up and moving around; however, she was questioned about the amount of work she was doing, so she was not coping.  She was not coping because of the pain, but the stress did not help; “it just added to it”.[26] 

[26]T23

54      It was suggested to the plaintiff that when examined by Dr Slesenger, he did not record her saying she was struggling to cope at work because of pain.  Possibly she did not tell him; she did not remember.[27]  She was telling Dr Desai of her difficulties at work because of pain.  She did not remember whether she told Dr Slesenger.

[27]T24

55      When the plaintiff was told Dr Desai had recorded, on 13 October 2016, that she was quite happy and still enjoying her work despite her relapse in backache, and daily commuting from home to work by walking, tram and bus, the plaintiff said she was happy and enjoyed her work, and wanted to get back to work, but personally, she was not coping, her back was hurting her and that is why she stopped working.  Otherwise, if it did not, she would have still been there.  She loved her job.[28]

[28]T25

56      When told that Dr Slesenger noted, in January 2017, the plaintiff had ceased work because of anxiety, she could not remember telling him that.  She did explain what happened.  The anxiety did not help her situation, but that was a different thing to her back pain.[29] 

[29]T26

57      The plaintiff was taking time off during her period of light duties between June 2015 and October 2016 and was also “questioned” about that as well by the defendant.[30]   

[30]T26

58      The plaintiff explained, she would not have gone to the doctor necessarily when she had to have time off work.  Each year she had three days without a certificate and nine days with a statutory declaration.  If she could not move, and was in bed, she used her certificates with a statutory declaration, and would not go to the doctor.[31]

[31]T27

59      The plaintiff agreed that on 25 July 2016, she attended Summer Hill Medical Centre, complaining of back pain and asking for time off because of it.  She did not dispute the records if that was the only recorded attendance at that clinic when she was on light duties complaining of struggling to cope at work because of back pain.[32]

[32]T27

60      The plaintiff explained it was difficult for her to go to the doctor all the time; she did not have a car.  If she was not well she could not walk, and could not move, and her back was stiff, and it was just best to rest at home.  She must have mentioned to Dr Desai she was struggling to cope on light duties because of back pain.  It was not that she was not happy at work, she was happy, it was the pain that made her stop.[33] 

[33]T28

61      Later on in the return to work program, the defendant retained Nabenet to assist with the rehabilitation process.  Although she was encouraged to get up and have a rest, the plaintiff was being pushed to work longer and that made her worse.  The quality of her work was also questioned. 

62      The plaintiff remained on the three days a week arrangement for a few months.  When the WorkCover co-ordinator left, Rachel Evans took over and she met with the plaintiff to discuss her return to work.  Rachel was trying to get her back on full duties, when her doctor was certifying her fit only for modified hours and duties. 

63      The plaintiff was not able to return to five days and remained on three days. 

64      Whilst the plaintiff was undertaking the light duties, she was in pain and barely coping.  She did not want to lose her job.  She was taking Panadol every day.  The incident with Ms Evans was the last straw.  Ms Evans advised that she was not going to accept the WorkCover certificate from Dr Desai and she implied she knew people in the mafia. 

65      The plaintiff had her back problems and, on top of that, she was threatened.  She made a formal complaint to Human Resources and an investigation was carried out.  She also submitted a Claim for Compensation for psychological upset, which was accepted.  Dr Desai also advised that the plaintiff was not physically well enough to continue working.  She was struggling to cope with the duties and her doctor felt she could not go on.  The threat from Rachel did not help but it was the plaintiff’s back which tipped her over into total incapacity.[34]

[34]T30

66      The incident with Ms Evans was in October 2016, a few months after the defendant had moved to Parkville from East Melbourne.  By that time, the plaintiff was really struggling to cope with the light duties and was only working three shifts a week.  Her back was becoming increasingly sore and the pain was unbearable.

67      The plaintiff did not believe she would have been able to continue working because of her back pain beyond October 2016 in any event.  She felt she was pushing herself beyond her limits and could not go on.  Although she was still upset by what Rachel Evans said to her, and she still felt that she was threatened by her, the plaintiff felt that with time she has, to a large extent, moved on from that now.  The problems she had emotionally with concentrating and focussing she believed came from her pain rather than the fact she was threatened.

68      The plaintiff agreed she felt very distressed, unsafe, anxious and teary after the incident with Ms Evans.  She agreed she stopped work immediately thereafter  and had not returned since.  She was then working three days’ light duties.  Dr Desai then started certifying her totally unfit. The plaintiff disagreed that if the incident with Ms Evans had not occurred, she would have continued working three days a week in light duties, scanning and/or doing the mail.  Her back was playing up and she was not coping, and that is what she was telling Ms Evans, who was adamant she get back to work, off WorkCover, and was very pushy about it.[35]

[35]T31

69      By letter dated 10 July 2017, the plaintiff was advised by the defendant that it was no longer able to continue to hold her position open. The medical certificates and information she continued to provide reflected a total incapacity for her to return to her role as an HIS clerk and perform the inherent duties of her role.  Given the long-term nature of the matter and no foreseeable likelihood of her returning to work, the plaintiff was advised the defendant would be withdrawing duties.[36]  Her last payment was on 3 February 2018.

[36]T47

Treatment

70      As at August 2018, Dr Desai prescribed the plaintiff anti-inflammatory medication and referred her for physiotherapy with Peter Rekas.  Dr Desai also organised a CT scan and an x-ray. 

71      In 2017, the plaintiff was referred to Mr Michael Johnson, orthopaedic surgeon, who sent her for an MRI scan in April 2017 and x-rays of the lumbar spine, pelvis and left hip.  Essentially, he advised conservative management and told the plaintiff there was nothing more he could do.

72      The plaintiff continued to see Dr Desai for certificates, review and ongoing medial management.  She saw Mr Rekas monthly but WorkCover had ceased paying for physiotherapy treatment and the plaintiff was treated under Medicare. 

73      The plaintiff tried to exercise at home, which she found helpful, and this had assisted with the pain management but had not made it better.  She underwent a whole body scan in May 2017.

74      The plaintiff had seen psychologist, Katrina Murphy, every three weeks.[37]  This was restricted by the WorkCover insurer, which refused to pay for further sessions after 31 December 2017.

[37]First visit November 2016 - ten visits funded

75      The plaintiff tried hydrotherapy but felt the pain in her leg worsened so she stopped.  It also made her tired.

76      As at August 2018, the plaintiff was taking up to eight Panadol Osteo per day; Brufen, 400 milligrams when required, Avanza, 30 milligrams, one at night/every second day; Endep, 10 milligrams at night, and she was using Voltaren cream/heat packs.

77      The plaintiff had experienced increased abdominal pain, heartburn and reflux more recently which she attributed to the high volume of medication and stress.  She was diagnosed with vertigo as she was experiencing headaches and dizziness, which Dr Desai also attributed to stress.

Consequences

78      As at August 2018, the plaintiff suffered from constant back pain which remained severe.  She also had pain in her left leg of similar moderate to severe pain.

79      At times, the plaintiff could not get out of bed because of the pain.  In the mornings, her back was sore and she struggled to get moving.  Getting dressed, doing her hair and getting motivated to move around sometimes took a few hours.

80      The plaintiff lived with her elderly mother but she thought she was stronger than the plaintiff and she did most of the housework.  The plaintiff tried to do things at her own pace. 

81      The plaintiff liked walking and was able to control her weight by walking twice a week for between one to two hours.  Now she struggled to walk for 15 minutes.  She had put on weight as a result of not walking and had noticed that her cholesterol had gone up. 

82      The plaintiff needed help with the shopping.  Her sister took her shopping and she helped with the shopping bags, which the plaintiff struggled to lift.  Her sister now drove the plaintiff, whereas before her injury, the plaintiff caught the tram and brought the shopping home.  Although she had a driver’s licence, the plaintiff did not drive and did not own a car.  She used to rely on public transport. 

83      Sometimes the plaintiff tried to do something but felt the consequences later and would be in significantly more pain. 

84      The plaintiff wore a back support belt, which helped her with daily living.  When she went shopping, she wore two belts for support in order to cope. 

85      The plaintiff used to go to the movies and also go out for dinner with friends.  Now, she just stayed home and watched television, as it was difficult for her to sit through a movie or sit at the dinner table comfortably for any length of time.  Before the injury, she was socially active and enjoyed going out with friends; however, since then, she felt as if she had become quite socially withdrawn. 

86      The plaintiff previously loved Greek dancing and wearing high heels.  She could do neither now due to her back pain. 

87      The plaintiff loved her job and the people she worked with.  That was why she stayed with the defendant for twenty-five years.  She missed being productive and the interaction she had with colleagues. 

88      The plaintiff also used to love window shopping and going into the city to browse the shops.  She could no longer do this as she could not walk for long distances.

89      The plaintiff was still able to attend church on the days when she was feeling well, as it was not a long service and she could sit and stand as required.  She missed not being able to help with church preparation of services such as floral arrangements, particularly at Easter time – something she used to do every year. 

90      The plaintiff went to Adelaide as her sister paid for the trip to try and get her out of the house.  It was a lovely gesture but the plaintiff did not get a lot of joy out of the trip due to her pain and discomfort. 

91      The plaintiff could not vacuum.  Her elderly mother did the washing and the bulk of the cooking, as well as most of the housework.  Admittedly her mother used to do a lot around the house and for the plaintiff, even before her injury, because she was working full time, but the plaintiff now did even less.  The plaintiff washed dishes and might make a salad.  Her mother was her rock; however, she was getting older and it worried the plaintiff as to how she would cope on her own if her mother was no longer around. 

92      It was not that the plaintiff could not do anything.  She could do some light things and then had to rest.  Afterwards, she became tired and was in pain.  She could not just sit around the house all day and tried to do some household tasks at her own pace and rested in between trying to do things. 

93      The plaintiff used to wear dresses and now had to wear loose clothes so as not to draw attention to the back brace that she wore. 

94      The pain disturbed the plaintiff’s sleep.  She may have slept for two to three hours and then woke.  It might then have taken her an hour to fall asleep again.  She then might sleep for another couple of hours.  She did not feel refreshed when she woke and sometimes she had a nap during the day. 

95      The plaintiff could not return to her pre-injury duties because of the heavy lifting, constant reaching and overhead work and the strains this would place on her neck and back. 

96      As a result of the plaintiff’s restrictions and pain, she had become depressed, angry, irritable and moody.  Her memory had been affected and she had  experienced feelings of nervousness.  She worried a lot and felt agitated.

97      The plaintiff did not think she could do any other work.  Towards the end of her time working with the defendant, she was taking quite a few days off.  Her employer of twenty-five years had reprimanded her for doing so.  Another employer was not going to be sympathetic and the plaintiff felt like she would be unreliable.

98      The plaintiff could not push herself because she tried in the past and it made her back condition worse.  If she deteriorated further, there would be no one to look after her.  Her mother was then eighty-one and she was not going to live forever.  The plaintiff’s sister had her own family to look after.

99      Had the plaintiff not injured herself, she would still be working and she had planned to work at least until sixty-seven.  Because of her physical incapacities, she was now unable to do any heavy, physical work.

Current situation[38]

[38]Second affidavit sworn on 27 November 2019

100     As at November 2019, the plaintiff’s back and left leg pain had not improved. Her earlier medication regime continues.  She takes Brufen, one per day, if the pain is severe, which could be several times a week.  She has also reduced the Avanza dosage in consultation with Dr Desai. 

101     The plaintiff also regularly uses Voltaren emulsion and heat packs and she continues to wear her back brace.  She finds it hard to concentrate now because of constant back pain.

102     The plaintiff does not intend to have injections into her back or any other sort of treatment because she is afraid it might do more harm than good.  Her first cousin had an injection in her back during childbirth that paralysed her and the plaintiff was afraid the same might happen to her.  Dr Desai has not suggested to the plaintiff she do a pain management program.  Indeed, he told her that he does not think that a pain management program would make any difference to her so she has no plans to do one.  She had not heard of any other treatment.[39]

[39]T44

103     The plaintiff tries to do things but feels the consequences.  If she tries to make a salad to help her mother with meal preparation and she has to stand at the kitchen bench for more than a short time, this makes her back pain worse and she has to rest.   The plaintiff can only do a bit of dusting or sweeping for a short time and if she tries to do too much, then, again, her back pain worsens and she has to rest.

104     The plaintiff generally does not go shopping on her own and if she tries to lift a few too many items then this too will aggravate her back pain.  She can only walk for about fifteen to twenty minutes before the onset of pain.  Once a week, her sister takes her shopping for a couple of hours to encourage her to walk more.  The plaintiff has to sit down on occasions to last this long.  When she gets home, she needs to have a rest and sometimes take medication.

105     The plaintiff tries to walk for probably an hour or so, or a bit longer.  She does get pain, but needs to walk because she has put on weight.[40]  She walks five minutes to get the tram into the city, but she does not go there often.  She catches public transport for very short trips, like going to the bank, because she does not do computer banking.  She also goes to the post office.[41] 

[40]T13

[41]T21

Progress of back pain

106     The plaintiff was cross-examined at length about the progress of her back condition after the said date.

107     Initially, the plaintiff said her back pain was about the same now as when she first had symptoms in 2015, with the pain down her leg being worse.  Every morning, it is now about 7 to 8 out of 10 and it can get to 9 out of 10, and sometimes even more in her back.  She felt she was taking more Panadol Osteo now to control it.[42]

[42]T8

108     The plaintiff largely agreed with Dr Slesenger’s reporting of her progress on his examinations.  When he noted in December 2015, her symptoms had gradually improved, “maybe she was feeling a little bit then”, she did not recall.  She did not remember telling him then her pain was at 5 to 6 out of 10, with residual left leg pain.  She agreed the pain was worse on bending and lifting more than 2 kilograms.  She did not recall telling him initially her sleep was disturbed but it had recently returned to normal, but agreed she said that if that was what he recorded.  She agreed she would have then been taking Panadol on alternative days, but is now taking more to try and control her pain.[43]

[43]T9

109     While Dr Slesenger recorded that the plaintiff could dress herself and did not need help doing so, she did have to have help from her mother then, and had particular difficulty putting on socks.

110     If Dr Slesenger reported on examination in June 2016, there had been little change in the plaintiff’s symptoms, that was what would have been the case, but she did not remember.  She agreed she then was complaining of lower back pain at 5 to 6 out of 10 radiating into the left leg and a standing and sitting tolerance of about thirty to sixty minutes.[44]

[44]T10

111     Dr Slesenger, following examination in January 2017, noted the plaintiff described a deterioration in her lower back, and left leg pain.  She agreed it did worsen after she stopped work in October 2016.  The pain was moderate to severe and it was dull and sharp in character, and that is why she ended up stopping work, because she could no longer cope.  She agreed, as he described, pain was aggravated by activities and could deteriorate spontaneously.  The pain in her leg was fleeting and sometimes felt in the knee, sometimes the ankle and upper leg.  She was then taking Endep, Panadol Osteo and Avanza.[45]

[45]T11

112     The plaintiff agreed she told Professor Bittar in May 2019 that her back pain varied in character between sharp, burning, throbbing, stabbing and aching, both sides being affected, worse in the morning, and more manageable after taking analgesia.[46]  On average, the pain was 9 out of 10.  Her lower back pain was significantly worse now than it was before she ceased work. 

[46]T11

113     The plaintiff is very cautious about what she does during the day to avoid aggravating her pain and, accordingly, she does very little throughout the day, with household chores largely done by her mother and shopping by her sister, who does all the lifting.  If the plaintiff stands for too long at a kitchen bench making a salad or when brushing her teeth, her back gets hunched over and she has to straighten it.[47]   She can sit for about an hour, it depends, standing, twenty to thirty minutes, before the pain starts to deteriorate, probably a bit longer.  The support belt helps a lot with more prolonged postures, supporting her back.[48]

[47]T12

[48]T13

114     The plaintiff swore a further affidavit in November 2019 addressing the issues raised by Michele Lane in her affidavit which was relied on by the defendant.

115     The job description of a patient information clerk in Ms Lane’s affidavit is what was the plaintiff’s old job, although the job was in fact more physical than Ms Lane suggested because it was mainly handling and moving files.  The plaintiff was unable to continue in that job before and would no longer be able to do it, because:

(a)   she could not work five days a week and was not even able to keep on working three days on light duties.  She would not be able to guarantee she would be able to turn up on any particular day, because if she had a bad day, she would have to rest at home on the bed or couch;

(b)   she would not be able to cope with the reaching, squatting, pushing, pulling, lifting and carrying required;

(c)   she would not be able to cope with the prolonged sitting and extended standing and walking;

(d)   she would not be able to think critically and quickly under pressure or deal with emergency situations.  She is no longer a calm person.  She would not be able to cope with any time pressures.  She was criticised for being too slow when doing the scanning on her return to work.  She would not be able to concentrate enough to do any data entry work sufficiently quickly or without making mistakes.

116     While Ms Lane attached a photograph of some files, in reality, the files were generally bundled together and had to be kept together so not to get lost.  They were hard to get on and off the shelves and in and out of the trollies.  The plaintiff exhibited to her affidavit some photographs of ordinary files.  Some files such as the haematology files were larger than these.

117     The plaintiff could not be sure of the precise weight she was required to lift.  The files were often very heavy because they were typically a number of folders all tied together and she had to lift them to and from the ground level and to and from heights above her shoulders.  Sometimes a file would take up an entire box.

118     The job also required the plaintiff to do a lot of bending and twisting while lifting and reading the files.  The trollies were often piled high with files and they were difficult to push and manoeuvre because of the heavy weights.

119     The plaintiff’s back pain would tend to increase through the day and be much worse at the end of the workday than at the beginning, and after work she would often have to take a hot shower and have a rest.  Her back pain also tended to increase through the week and be worse at the end of the week than at the beginning.

120     There were also times when the plaintiff was on light duties when she could not get out of bed because of pain and stiffness, and she was not able to go to work.  She was absent from work on light duties due to the ongoing pain.  Because of this situation, the plaintiff did not think she could guarantee any employer that she would regularly turn up or turn up on time.  In order to get dressed, she then needed, and still needs, her mother’s help to put on her shoes and socks.

121     The plaintiff maintained that the files were often heavy, and in haematology patients they could be very large.  Although she had not weighed them, they could be very heavy and could have weighed 5 kilograms.  One patient might have only one folder, but one might have five or six, and the folders would be moved all at once so as not to lose them.[49]  When the papers were pressed together, they were quite heavy.[50]  Having collected the files, the plaintiff was required to track them in, entering them onto the computer, barcode, and put them in another trolley, ready to go to the relevant clinic.  At one stage, she was involved in taking the trolleys down.  They had to fill the trolley, because there was a deadline.[51] 

[49]T16

[50]T17

[51]T18

122     The clerical aspects of the plaintiff’s job were very basic, just entering where they wanted to track it, scan it, save it.[52]  Scanning documents was a different job.  There was a rotation every two weeks.  There would be the trolley work and then the scanning for two weeks.  There was handling histories, manual handling.  There was also a job opening the mail.[53] 

[52]T13

[53]T19

123     The plaintiff still has friends working with the defendant and she was told by them nothing has changed from when she worked there.  Every job was full time.  She now could not use a trolley and work with a lifting restriction up to 5 kilograms.  When it was suggested to her she could get up and go to work with the defendant three days a week, the plaintiff said she tried and it did not work.  She would try again and it would not work, so if she got the pain, where was she going to go – “to the toilet, stay there for half an hour and leave the desk unmanned?”[54]

[54]T41

124     The plaintiff definitely could not push or pull a trolley weighing up to 15 kilograms.  Filing loose forms, reports and correspondence in records, required her standing all the time and moving in and out of files.[55]

[55]T43

125     The plaintiff could not go back to doing a full range of duties on a rotating basis.[56]  She would have problems reaching above her head to get files, or squatting down to get them from floor level.  These, or any movement, could aggravate her pain.  The lumbar belt helps, but if she lifts something that is heavy, that definitely aggravates the pain.  It would “lock her back in” and it hurt, and she would get hunched over and need to go to bed and just rest, and could not move.  It is different every day.  She would probably be in bed two or three times a week on bad days.[57] 

[56]T45

[57]T47

126     On the return to work program at the end of scanning, the plaintiff felt very tired at the end of a shift, with pain in her back, which made her tired.  She struggled to get home on public transport if she could not find a seat.[58]

[58]T47

Other jobs

127     The plaintiff has not looked for work since her employment was terminated because she cannot work.  She has not looked into doing any courses because she cannot work.  She is not sleeping well.  When she wakes up, she is not refreshed.  She has pain in the mornings and by the time she gets her medication and that kicks in, half a day is gone.  She is not strong enough; she is not able to work.  She did not feel that she was reliable and well enough to go back to work.  If she was, she would.[59]

[59]T32

128     The plaintiff had tried to go back to work despite not being well.  She tried to work, and was reducing her hours until she stopped.  So she has already tried and that made her worse, so possibly her back is worse than when she was working.[60]

[60]T32

129     The plaintiff confirmed she told Dr Bloom she could not undertake any of the suggested jobs because they were the same as the jobs she was doing and she could not cope when she was at work.[61]  She agreed Dr Bloom correctly recorded the reasons why she could not work.[62]

[61]T32

[62]T33; those reasons being: ‘I am no longer skilled enough’, ‘what happens if I get pain?’, ‘I am not well enough and not able to do the jobs’, ‘I cannot remember things’, ‘I cannot get motivated’ and ‘some days I can’t get out of bed’

130     The plaintiff was asked about the telephonist enquiry clerk job in Epping.  She did not feel very confident navigating public transport there, but could work it out.[63]  When taken to the job description, the plaintiff said they were the same jobs that she was doing.  Her role with the defendant was similar to a telephonist and enquiry clerk.[64]  When taken through the tasks required, the plaintiff said they were different, but very similar, with answering the phone, sitting down at a desk, at the computers, as shown in the photograph - it is a job in a hospital.  She did not think she would be able to cope and remember things, and do this type of work.[65]

[63]T34

[64]T35

[65]T36

131     In terms of the telephonist role and other suggested jobs, the plaintiff explained her problem sleeping and not waking up refreshed, and by the time she takes her medication, half the day is gone.  She would not be reliable.  She might be able to do a sit/stand desk for one day a week, but did not think she could do it for long.[66]

[66]T37

132     While she might be able to cope with the sitting and standing actually at work, her problem is getting ready for work, getting up in the morning, getting ready travelling to work when she is not well, and then trying to cope with the job itself, “getting there is one hurdle, working is another”.[67]

[67]T38

133     The plaintiff would not be able to cope with the lifting required in the mail room in the suggested job, particularly with items in the vicinity of 3 to 5 kilograms.  The employer would complain about her being slow, and she did not believe she was strong enough to do it.[68]  The same considerations would apply to the other suggested jobs.[69]

[68]T39

[69]T40

Certificates

134     On 20 June 2016, Dr Desai reduced the plaintiff’s workdays to three from four days a week.[70]

[70]T51

135     After October 2016, Dr Desai certified the plaintiff totally incapacitated.[71] A certificate of 23 October 2019 set out total incapacity due to a chronic back condition. 

[71]T50

The Plaintiff’s medical evidence – diagnosis

136     In his most recent report of May 2019, Dr Desai diagnosed relapsing lumbago and left sciatica, the main cause of which was the plaintiff’s work with the defendant.  He thought investigations, including x-ray, CT scan and MRI reports, were indicative of disc and facet joint degenerative disease.  He also considered the plaintiff suffers from an Adjustment Disorder.

137     In November 2017, physiotherapist, Peter Rekas, diagnosed discal injury to the lower back.

138     Professor Choong, the orthopaedic surgeon who had earlier operated on the plaintiff’s hip, on examination in February 2019, noted the plaintiff complained of buttock, thigh and lower back leg pain from her back since the injury.  He wondered whether she had a bit of lateral canal stenosis causing her symptoms, in light of the fact she did have some degenerative change, both discal and facet, in the lumbar spine.  He thought it possible that she was slowly developing a bit of lateral canal stenosis, giving nerve root impingement, and hence the symptom of sciatica.

Medico-legal evidence - diagnosis/organic basis

139     The plaintiff saw occupational physician, Dr Middleton, in April 2019.  She then told him that the main pain involved the entire lumbar and paravertebral muscles, with pain levels varying from normally 7 to 8 out of 10, deteriorating to 9 out of10, with the leg pain mainly down the anterior aspect of the left leg.

140     On examination, the main tenderness was at L4-5 with increased muscle tone involving the paravertebral muscles of the lumbar spine. There was also tenderness in both sacroiliac joints.

141     Dr Middleton concluded the plaintiff suffered aggravations to her lumbar spine on a continuous basis and on the said date, suffered an exacerbation of her ongoing back injury, resulting in structural damage to her lumbar spine, in particular, initially mild posterior disc bulging at L4-5, that subsequently developed into disc bulges at all lumbar levels, where an annular tear was developed and with onset of lumbar instability, and subsequent development of neuropathic pain down her left leg, which had never been adequately treated and continued to affect the functioning of her lumbar spine.

142     On re-examination in September 2019, the plaintiff’s symptoms and pain remained unchanged, extending into the left leg and the symphysis pubis, which had been occurring more frequently where the pain levels are up to severe which have also been unchanged.  The main tenderness was at L5-S1.

143     Professor Richard Bittar, consultant neurosurgeon, saw the plaintiff in May 2019.  She then complained of lower back pain with an average severity of 9 out of 10.  She also experienced constant pain radiating from her left buttock to her knee.

144     On examination, the plaintiff had mild restriction of lumbar spine flexion and severe restriction of extension which was more painful.  She had paravertebral muscle spasm and tenderness.  There was no abnormal illness behaviour.

145     Professor Bittar considered the plaintiff experienced lower back pain and left leg pain as a result of aggravation of lumbar spondylosis.  In his view, the most likely pain generators were either the facet joints, the L4-5 intervertebral disc and/or left L5 nerve root irritation.  He believed the plaintiff’s employment with the defendant had been the dominant contributing factor, with repetitive and heavy workplace activities having played a significant contributing role to the aggravation of her pre-existing asymptomatic lumbar spondylosis, and had also likely contributed to the development of lumbar spondylosis (degeneration) in the first instance.

The Defendant’s medico legal evidence

146     Dr Philip Sharp, consultant surgeon, who saw the plaintiff in July 2015, noted her presenting symptoms were lower back pain that occasionally radiated down her left leg to her calf.  He diagnosed constitutional degenerative changes involving the plaintiff’s lumbosacral spine, in particular, the facet joints.

147     Dr Sharp was later advised of a history of episodic lower back pain, on and off since 1997 until the incident on the said date.  He considered the plaintiff’s employment was a significant contributing factor to the exacerbation and aggravation of her condition sustained on the said date.

148     Dr Slesenger, occupational physician, saw the plaintiff in December 2015, June 2016, January and July 2017.

149     On the first attendance, the plaintiff advised that her symptoms had gradually improved, although she was left with residual low back pain of 5 to 6 out of 10 and residual left leg pain.  On examination, there was tenderness over the lower lumbar spine and muscles supporting either side of the lumbar spine.,

150     When seen in June 2016, the plaintiff advised there had been little change in her symptoms.  In January 2017, she reported a deterioration in her lower back pain, and described the pain as being moderate to severe and was both dull and sharp in character.  She also told Dr Slesenger of the incident with Ms Evans.

151     On examination in July 2017, the plaintiff described a deterioration, particularly in her left leg symptoms. There was tenderness over the lower lumbar spine.

152     Dr Slesenger diagnosed  mechanical injury to the lumbar spine, an aggravation of degenerative disease of the lumbar spine, with left radicular symptoms, but no evidence of radiculopathy.  He was satisfied the plaintiff’s current incapacity resulted from work.  He thought there were no non-work factors affecting her  presentation, although he noted a psychological comorbidity.  He was satisfied that the occupational exposures were a plausible cause of the plaintiff’s impairment.    

153     Dr Michael Bloom, occupational physician, first examined the plaintiff in December 2018.

154     The plaintiff then told him she had constant backache which varied between an ache and stiffness.  She also described intermittent left leg pain.  Her mood and emotional state fluctuated and she felt intensely upset by the way she had been treated.  She perceived she had suffered a permanent injury to her low back and she had become dependent on wearing a back brace.

155     Examination of the low back revealed no deformity. There was minimal tenderness and no evident muscle spasm.  The plaintiff’s range of motion was reasonable and within the range for a woman of her age.  There was no evidence of muscle wasting. The range of left hip motion was restricted and the hip appeared irritable.

156     Dr Bloom then thought there was no evidence, either in the history, the radiology reports or his clinical findings, of serious or permanent lower back injury or condition, and he thought that it was possible that many of the plaintiff’s symptoms and level of dysfunction related to a dysfunctional left hip.

157     Noting the plaintiff was a well-motivated worker, Dr Bloom thought it likely that, notwithstanding her increasing left hip dysfunction, and not withstanding adverse psychosocial factors,[72] she would have rehabilitated successfully to her normal job as a medical records clerk.  In other words, from the perspective only of the claimed lower back injury or lower back condition, there was no physical contraindication to return to her original work duties.  Thus, the main barriers related to adverse psychosocial factors, as well as probable left hip dysfunction factors.

[72]adverse psychological response

158     Dr Bloom re-examined the plaintiff in April 2019. 

159     The plaintiff then perceived her back pain was actually getting worse.  She had constant soreness in her low back which was “throbbing, aching, stabbing, very uncomfortable and very tender”, the intensity of which varied between 8 to 9 out of 10.  She also experienced intermittent pains into her left leg.

160     On examination, the plaintiff requested help with her shoes and socks.  She appeared quite angry and emotional, expressing a very strong sense of injustice.  Having removed her back brace, her movements were all relatively fluid and brisk.  There was widespread tenderness to light skin touch over the low back but no muscle spasm.  The active range of movement of the low back was again normal for a woman of her age.  There was no muscle wasting and no neurological abnormality.  There was slight restriction of left hip movement but no pain.

161     Based on her history, the clinical examination findings and the radiology reports, Dr Bloom then considered the plaintiff to be suffering from chronic non-specific lower back pain, with referred symptoms, but without clinical radiculopathy.  He thought she had a chronic pain state, secondary to adverse psychosocial factors – an adverse psychological response – that perpetuates and amplifies any physical symptoms and perceived disability.  He thought it likely she had a psychological injury, the nature and degree of which is a matter for specialist occupational psychiatric opinion.

162     Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in May 2019. 

163     The plaintiff then advised her back had not improved since she ceased work. She had constant lumbar pain that varied between 7 to 8 to 9 out of 10.  Pain radiated to the left buttock down to the knee and occasionally the foot.

164     On examination, the plaintiff presented in a pleasant and straightforward manner. There was no elaboration of physical signs. Waddell’s test was negative.  She was mildly tender over the lumbosacral region.  There was pain on lumbar flexion.  Left hip flexion and extension was slightly reduced.

165     Mr Simm noted the plaintiff presented with painful lumbar function due to longstanding multi-level constitutional degenerative pathology.  There were no neurological symptoms and no clinical signs of radiculopathy.  There were features of a chronic adverse pain response, with severe unremitting pain, which rose to 8 to 9 out of 10. 

166     Mr Simm thought the plaintiff’s symptoms were due to common constitutional age-related multi-level degenerative lumbar pathology.  There was not a traumatic or occupational cause to explain her pain.  He thought it unlikely that the paper files she was required to move would weigh more than 5 kilograms.  While repeated lifting of those files, particularly from shelves above head height, could certainly be associated with pain from underlying advanced degenerative pathology, those work activities would not cause, and were unlikely to aggravate, accelerate or otherwise alter the degenerative lumbar pathology.  Therefore, while she was working, she had a WorkCover claim which was an exacerbation of pre-existing degenerative lumbar pathology.

167     Mr Simm noted, when physically examined, there were no overt non-organic or functional clinical signs, but the plaintiff’s clinical course indicated she had developed chronic pain, and this diagnosis implied that there were non-organic and/or psychological factors leading to the generation, perpetuation and amplification of the pain response.   If the defendant had allowed her to continue with four days a week with constraints on lifting, and there had been no pressure or perceived pressure to increase her workload, then it was highly likely she would still be working under these circumstances until the present time.

168     Mr Simm noted rheumatologist, Dr Schachna, who saw the plaintiff towards the end of 2015, diagnosed mechanical back pain with radicular symptoms but with no evidence of neural compression.

169     Dr Entwisle, consultant psychiatrist, saw the plaintiff in December 2016.  He thought she appeared to be showing signs of developing a Chronic Pain Syndrome based on Dr Slesenger’s report and, with that, an Adjustment Disorder with Anxious Mood in relation to a perceived threat with the workplace.

170     In a supplementary report of March 2017, Dr Entwisle stated, from a psychiatric perspective only, he did not consider the plaintiff’s mental injury was secondary to her accepted physical back injury.  He thought the plaintiff’s underlying personality traits caused her current incapacity and they superseded any work-related component.  Those traits remained the cause of the current incapacity.  He thought the plaintiff’s current incapacity for work did not result from, or was materially contributed to, by the claimed mental injury sustained on 20 October 2016.

The Plaintiff’s medical evidence as to current work capacity

171     In his most recent report of May 2019, Dr Desai advised he considered the plaintiff incapable of both pre-injury other suitable employment in the future until her condition had stabilised (she is totally pain free – her movements are unrestricted).  He considered her currently incapable of both pre-injury as well as other suitable duties.

172     When Dr Middleton saw the plaintiff in April 2019, he concluded she had no current work capacity and, in his view, her prognosis was poor, and that incapacity was likely to continue for the foreseeable future.

173     In his view, the proposed suitable employment options nominated by the author of the vocational report[73] of medical records clerk, receptionist, mail clerk, customer service officer and data entry officer, should not be relied upon as, in his opinion, the limited skills associated with the employment history of the plaintiff provided virtually no basis on which she could realistically find work.  As such, he concluded the plaintiff had no current work capacity and he was unable to identify any alternative employment which she could safely and reliably perform to a level expected by employers in the open employment market.

[73]who had no documented qualifications

174     However, earlier in his report, somewhat confusingly, Dr Middleton had said he considered the plaintiff was now limited to sedentary non-manual work that needed to be performed in a self-paced manner with provision for work breaks as required and the ability to change posture frequently.  He thought activities involving her lower back and lower limbs needed to occur below mid chest and above mid thigh, preferably at waist height, avoiding repetitive, prolonged or forceful activities.  A maximum effective weight or force to be applied should be limited to 2 kilograms on an occasional basis.

175     Further, Dr Middleton noted, due to the plaintiff’s current activity tolerance limits, and her medication, which included amitriptyline, and the fact her sleep was disturbed by pain, when on bad nights she got very little sleep and consequently was sleep deprived the following day, the plaintiff was limited to part-time work.  He thought it important she did not exceed her current activity tolerance limits, as to do so resulted in a significant increase in her pain level, such that she was no longer able to work and must rest for recovery.

176     Dr Middleton re-examined the plaintiff in September 2019.  He was provided with the suitable employment option report dated April 2019.

177     Dr Middleton carefully assessed the jobs of telephonist, customer service officer, ward clerk and receptionist, and noted the requestor had failed to consider all aspects of the definition of “suitable employment”. It was clear, in his view, the plaintiff did not have the safe and reliable physical capacity for each and every role, and was insufficiently qualified for such roles, noting that, yet again, the WorkCover lawyer had not addressed all the aspects of the definitions defined in the Act and, once again, there were sufficient deficiencies in both the plaintiff’s safe and reliable physical capacity and a lack of adequate transferable skills, such that in both assessments the authors had substantially exaggerated or over-estimated the plaintiff’s transferable skills and under-estimated or minimised the significant impairments, noting the activity tolerance limits, where exceeding such tolerances, resulted in an exacerbation of the plaintiff’s severe resting levels of pain and reduced her functional capacity for the following days.

178     Dr Middleton did not change his view from his May 2019 assessment and concluded the plaintiff had no current work capacity and he was not able to identify any employment opportunity that could be regarded as suitable employment that she could safely and reliably undertake.  He considered none of the suggested jobs were suitable.

179     Professor Bittar, having seen the plaintiff in May 2019, thought, taking into account only the restrictions caused by the plaintiff’s lower back injury and excluding any psychological consequences, her lower back injury placed significant restrictions with respect to her pre-injury employment and residual employment capacity.  She had been rendered totally incapacitated for work by her lower back injury.

The Defendant’s medical evidence – work capacity

180     When he last saw the plaintiff in July 2017, Dr Slesenger thought she could not return to pre-injury duties and hours; however, based on the physical compensable condition alone, he thought she had the capacity to return to work with restrictions, namely no push/pull, carry or lift over 5 kilograms, no repetitive bending or twisting, job rotation, sit and stand as required for six hours a day, five days a week.

181     Dr Slesenger thought the plaintiff could perform the role of medical records clerk and receptionist, customer service officer and data entry officer, but advised against her returning to work in the role of a mail clerk, as the job tasks were likely to be outside her capacity limits. 

182     In December 2018, Dr Bloom opined as to the plaintiff’s work capacity, having found no evidence of left leg injury and no evidence of serious or persisting physical injury to the lower back. 

183     Considering the plaintiff’s back and left leg complaints, and identifying minor degenerative pathology, and notwithstanding any dysfunction of her left hip, Dr Bloom thought that she could function and work within restrictions, including avoiding prolonged static postures, avoiding bending and twisting under heavy load, avoiding climbing ladders or working at heights and repetitive manual handling restricted to loads of about 7 kilograms, with occasional excursion to 10 kilograms.  He also imposed a range of restrictions appropriate for her left hip.

184     Within the list of physical conditions and constraints, Dr Bloom thought there would be no physical contraindication to work full-time hours; however, as the plaintiff had been out of the workforce for about three years, a graduated return to work on a part-time basis would be preferable in order to allow time for adjustments and work conditioning.  He recommended any return to suitable duties commence at three hours, three days a week, with a graduated increase in hours to about twenty hours a week, over eight to ten weeks.  Beyond twenty hours a week, assuming suitable duties, any increase would be dependent upon her level of tolerance rather than her physical capacity; however, from the perspective of any claimed lower back strain injury for which there was no evidence of lasting impact, and also no evidence of serious lower back condition, he thought there would be no contraindication to increasing to full-time suitable duties within about three months.    

185     Because of the plaintiff’s left hip, as well Chronic Pain Syndrome, and also taking into account her age of fifty-five, Dr Bloom thought she would never be considered suitable for physically demanding occupations and was only suited to semi-sedentary or sedentary work.  He noted her experience working as a receptionist and her very considerable experience of working as a medical records clerk.  In his view, the plaintiff’s transferable skills, therefore, should enable her to work in a range of reception positions and also relatively low-skilled clerical administrative positions.

186     Dr Bloom believed the plaintiff had the physical capacity to work as a receptionist in many, but not necessarily all, settings.

187     In terms of a general clerk administration worker, Dr Bloom thought there would be a broad range of general clerical duties the plaintiff would have the safe physical capacity to undertake, provided the skill levels were not too high and onsite training would be within her capacity.  Preferably a sit/stand workstation would be provided.  He noted, however, that because of her left hip dysfunction, the plaintiff would not be suited to most process work, but a worksite assessment would be required if such work was being considered.

188     Dr Bloom thought it likely the plaintiff would have remained and rehabilitated back to working in her usual medical records role had she not perceived workplace harassment.  Thus, excluding the adverse psychosocial factors and also the non-work-related left hip condition, he believed, from the perspective only of her lower back condition, the plaintiff should, and would, have the safe capacity to undertake the duties of a medical records clerk.

189     Dr Bloom re-examined the plaintiff in August 2019.  He was then provided with Mr Simm’s report and the April 2019 Recovre report.

190     Having perused the worksite assessment reports of all three suggested jobs telephonist, receptionist and enquiry clerk, Dr Bloom noted that the physical demands were sedentary, semi-sedentary and very light, and also that they were well within the conditions and constraints that the plaintiff should, and could, function and work.  He noted he had been unable to identify a physical reason why the plaintiff should not safely sustain any of the three identified job options and, therefore, considered that, from purely a physical perspective, the three roles were safe and suitable.

191     Due to a psychiatric perspective alone and due to her current psychiatric symptoms, in December 2016, Dr Entwisle did not believe the plaintiff had a capacity to perform pre-injury duties and pre-injury hours.  What was stopping her returning to work was her belief she had had a death threat made to her at work which prevented her from returning to work.  He considered she did not have the capacity to undertake pre-injury duties and hours at her current workplace.

Vocational evidence

192     Recovre carried out a suitable employment report in April 2019.  The purpose of the report was to determine the physical demands and labour market factors associated with identified employment options within reasonable travel from the plaintiff’s residence in Reservoir.  She was not personally interviewed for the purpose of completing that report.  All details and opinions were based upon the documents provided.  The only medical report was that from Dr Michael Bloom of 17 December 2018.

193     Three worksite assessments of actual job roles that exist within the open labour market were detailed to outline the physical demands typical to those roles.

194     The first role was a telephonist-CSO with a health service located in Epping, the second role was a ward clerk with the same employer and the third role was a receptionist at a community centre in Sunshine West.

195     The assessment of the first role was on 12 March 2019.  The salary was $1,023.90 per week gross.  Three workers were typically on duty during office type daytime hours, reducing to two in the evening and overnight.  All were employed part time, with actual hours worked being negotiable up to a year full time.

196     The tasks involved were telephone manning, back-office tasks, reception tasks and mailroom.

197     The mailroom job involved lifting in the vicinity of five kilograms from bench to bench height when moving small parcels from the workbench to storage.  Bending may be required if something is placed on the floor – this is a worker’s choice as benches are available.  Lifting height range was typically at around bench height with a maximum five-kilogram load.  Work is rotated on a two-hourly basis between back-office telephone duties, front desk enquiry duties and mailroom duties.

198     Workstations for telephonist duties were currently set up for seated work; however, the option existed to install a sit/stand desk.

199     In summary, the primary physical demands of the role were sedentary and allowed for a regular change in posture.  There were opportunities to vary posture with the addition of a sit/stand desk.  Lifting was required within the mail room; however, that is typically limited to one to two lifts per shift as tasks were shared between the workers.

200     The second job of ward clerk had a salary of $1,023.90 per week.

201     That role was also within a large ward facility.  Clerks were employed to ensure smooth administrative operation of the ward, including patients within the facility, as well as upon admission and following discharge.  There were administrative tasks associated with medical records, referrals to other services, general administration, filing and faxing tasks.  Work is frequently alternated and there is a change of tasks across the day, leading to postural variety between sitting and standing or walking.

202     The job involved manual paperwork and administrative tasks, computer-based tasks (including iPM patient management system and CPF clinical notes system) and also general administration, sundry tasks and customer service.

203     In summary, the primary physical demands of the role were sedentary, but varied in nature and require workers to regularly change posture between sitting, standing and walking.  There is no inherent manual handling demands beyond a few kilograms and the bulk of tasks are completed at or around bench height.

204     The third job of receptionist in Sunshine West had an entry-level wage of $25.11 an hour.  The job was at a community facility that operated rooms for hire to community groups and agencies, as well as training providers and groups.  The receptionist within the business offered customer service to visitors and callers, changed group and room bookings, maintained statistical records for funding purposes and assisted with tidying of the common kitchen areas.

205     The job involved customer service, telephone duties, computer-based tasks with a full range of Microsoft applications, filing and general administration tasks, tidying of common kitchen area, and supplies and deliveries.

206     In summary, the primary physical demands of the role were sedentary and largely desk based.  The option existed to install a sit/stand desk which would allow the worker freedom to alternate between sitting and standing at will.

The Defendant’s lay evidence

207     Michelle Lane, the defendant’s manager of health and safety, swore an affidavit on 22 November 2019.

208     Ms Lane exhibited to her affidavit a copy of a job task analysis clerk role which described the physical requirements of the work the plaintiff would be required to perform were she still employed by the defendant.  There was no lifting over five kilograms and a trolley was available to transport files.  Ms Lane also exhibited a photograph of the files and the trolley to her affidavit.

Findings

Credit

209     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[74]

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

[74](2010) 31 VR 1 at paragraph [12]

210     There was no attack on the plaintiff’s credit by counsel for the defendant.

211     As counsel for the plaintiff submitted, the plaintiff is an honest witness, not someone who exaggerates her condition. Significantly, as Mr Simm acknowledged, she has a very strong work history, having worked for twenty-five years for the defendant.

212     The plaintiff had a very strong work history.  She had worked for twenty-five years for the same employer, lifting files around, and as her counsel submitted, the plaintiff did her very best to retain work and continue on, but just could not cope when her back pain became too much.[75] 

[75]T63

213     In my view, the plaintiff is also somewhat of a stoic.  As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[76] he suspected:

“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

[76][2008] VSCA 260 at paragraph [4]

Causation

214     Causation was in issue based on Mr Simm’s view the work duties would not have produced an aggravation to the lumbar pathology, not because the plaintiff’s pain came on while she was not at work.[77] 

[77]T52

215     Counsel for the defendant submitted the plaintiff misled Mr Simm, telling him that she was lifting 15 to 20 kilograms, when during the hearing she could not really say the weight she was lifting, other than that the files were heavy.  Mr Simm had looked at the photographs of the job and, in his view, the tasks would not result in aggravation of the pathology of the lumbar spine.  He thought what the plaintiff is experiencing now is, in fact, a constitutional condition.[78]

[78]T56

216     In response, counsel for the plaintiff submitted the Court should accept the plaintiff’s description of what she was doing at work and, on that basis, save for Mr Simm, no other medical practitioner has said there is an issue with that work causing an aggravation.  The claim was accepted and the plaintiff received weekly payments.[79]

[79]T64

217     Mr Simm, alone, cast doubt on the issue of causation, and was of the view that work would not aggravate underlying degenerative change, it would only cause an exacerbation; however, every other practitioner said it aggravated underlying degenerative change.[80]

[80]T4

218     It was submitted it was not surprising that the duties the plaintiff did over many years could wear out her back.[81]

[81]T69

219     Taking into account all the evidence, I am satisfied that the plaintiff injured her back as a result of her work duties with the defendant.

220     Mr Simm is the only practitioner who does not accept this is the case, basing his view that work duties would not have produced an aggravation to lumbar pathology on his acceptance of a lighter work regime than described by the plaintiff.  No other practitioner has had any difficulty finding compensable injury.

221     I accept the detailed description the plaintiff has given as the duties she was required to perform.  I am satisfied that her work was heavy and repetitive, resulting in lumbar injury, the effects of which continue to the present date, as most medical practitioners opine.

Organic

222     The primary submission on behalf of the defendant was that any impairment presently suffered by the plaintiff does not have a substantial organic basis. 

223     In Meadows v Lichmore Pty Ltd,[82] Maxwell P set out the two-step manner in which I ought to approach the task in this case:

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

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

[82](supra) at paragraphs [21]-[22]

224     Counsel for the defendant submitted that the plaintiff had widespread and severe pain in the low back, as well as down her left leg, which could not be explained by any physical condition.[83]

[83]T52

225     It was submitted there was nothing of significance on the recent investigations and that the plaintiff had degenerative changes in the lumbar spine which were not the reason for her pain.  In fact there was a significant psychological amplification playing into the plaintiff’s condition which was supported by Dr Bloom and Mr Simm.[84]

[84]T53

226     Further, there was a significant amount of fear avoidant behaviour commented upon by Dr Bloom, who thought the plaintiff’s presentation was being driven entirely by her emotional state and would be better assessed by a psychiatrist.[85]

[85]T53

227     Mr Simm’s comments that the plaintiff had developed chronic pain also implied that there were non-organic and/or psychological factors leading to degeneration perpetuation and amplification of the pain response.

228     Whilst Dr Slesenger diagnosed a mechanical injury to the lumbar spine, he also found psychological comorbidity likely to be having a negative effect on the plaintiff’s presentation.  It was submitted the opinions of the orthopaedic surgeon, Mr Simm, should be preferred to Dr Slesenger, who is an occupational physician.[86]

[86]T54

229     There was also criticism of the plaintiff insofar as she reported a deterioration in her condition after ceasing work, as Dr Slesenger noted on examination.  The plaintiff agreed this was the situation.[87]

[87]T53

230     In response, counsel for the plaintiff submitted the weight of medical evidence establishes the plaintiff’s complaints have a substantial organic basis – involving an aggravation of degenerative disc disease/spondylosis.  This view started with Mr Sharp and Dr Slesenger and later, Dr Desai and Professor Bittar. Even the rheumatologist, Dr Schachna, thought the plaintiff was suffering mechanical lower back pain.[88]

[88]T63

231     It was submitted, in those circumstances, the plaintiff’s condition had a substantial organic basis and there had been no psychiatrist saying it had been overtaken by some somatic pain disorder.[89]

[89]T63

232     As counsel for the plaintiff submitted, the preponderance of medical evidence is that the plaintiff’s lumbar condition is principally organically based.  There was  no doctor who found positive Waddell’s signs, non-organic behaviour or deliberate exaggeration.[90]

[90]T2

233     Mr Simm found no overt non-organic or functional clinical signs, but found the plaintiff’s condition was physically based, being degenerative in nature, not related to work she had undertaken.  Dr Bloom was therefore the only practitioner who did not consider the plaintiff’s condition has a physical basis.

234     Counsel for the defendant indicated that if the symptoms described by the plaintiff were properly considered under sub-paragraph (a), that the consequences of that condition do meet the threshold for pain and suffering.[91]

[91]T56

235     Having made my finding, it is therefore not necessary to examine the consequences complained of by the plaintiff; however, I do accept she suffers the ongoing pain and restrictions deposed to and her lumbar impairment limits her ability to engage freely in a range of work and domestic activities.  Further, she continues to require significant painkilling medication.

Loss of earning capacity

236     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, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

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

237     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.

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

239      “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.

240     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.

241     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.[92]

[92]Barwon Spinners Pty Ltd v Podolak (supra)

242     I am therefore required to determine a “without injury” earnings figure. The parties agreed that figure is $58,292.[93]  Sixty per cent thereof on a weekly basis is $672.60.[94]

[93]T1

[94]T52

243     The parties also agreed that the plaintiff would not suffer the requisite loss if she worked 26.8 hours as a receptionist at entry level wage, 23 hours with the defendant, and as a telephonist and enquiry clerk, 25 hours, and ward clerk, 24.5 hours.[95]

[95]T57, T67

244     Counsel for the defendant submitted the plaintiff does have a capacity for work and has not established the requisite loss.[96]

[96]T56

245     It was submitted the plaintiff was able to work 24 hours a week on light duties with the defendant doing the scanning and mail and the real reason she ceased work was her interaction with Ms Evans rather than her low back pain.[97]

[97]T57; Dr Entwisle; Ms Murphy, psychologist

246     While the plaintiff said she was struggling on her return to work, it was submitted there was no contemporaneous evidence that she was in fact doing so. Although there were numerous attendances with Dr Desai complaining of back pain and getting ongoing certificates, it was not until the incident with Ms Evans that the plaintiff was certified unfit for work, having at that time been working 24 hours a week.[98]

[98]T57

247     Reliance was placed on Dr Desai’s comments on 13 October 2016 that the plaintiff was happy and still enjoyed her work despite relapsing backache.  He then also referred to stress from harassment from the employer and in fact also diagnosed a psychological condition.[99]

[99]T58

248     At no time did Dr Slesenger, when he saw the plaintiff between December 2015 and October 2016, record she complained of any difficulties with her work.  She told him in January 2017 she stopped work because of anxiety with the Evans’ incident.[100]

[100]T58

249     Whilst Mr Simm does not comment specifically on work capacity, his report implied the plaintiff would be able to continue working on light duties she was doing at the time she ceased for 24 hours a week, because her incapacity arose due to psychological factors.[101]

[101]T58

250     It was submitted that the suggested job of telephonist and enquiry clerk rotating between the three jobs including mail room, reception desk and telephones would be an example of a job that fitted Dr Slesenger’s restrictions and would be very suitable for the plaintiff.[102]

[102]T59

251     Reliance was placed on Dr Bloom’s view that there was no physical reason why the plaintiff could not return to full-time work; however, it was conceded that he did say she should start on a graduated basis because she had not worked for some time.[103]

[103]T59

252     It was submitted that the plaintiff was very resistant to the idea of attempt to return to work or even retrain.  She had done nothing since she ceased work in 2016 and seemed to have fallen into somewhat of a disability role, where tasks were done by her elderly mother.  It was submitted her level of restriction was not warranted on the basis of her physical condition.[104]

[104]T60

253     It was submitted there were no issues with the plaintiff’s qualifications or skills for any of the suggested roles.  While she is not a computer expert, she could cope with computer work with the defendant and there was no reason she could not learn the programs that were required in the jobs suggested by Recovre report.[105]

[105]T61

254     Dr Middleton’s view was criticised, in that he seemed to find any reason whatsoever why the plaintiff could not do any of the roles suggested.[106]  It was submitted there was an inherent inconsistency in his report.  It was “convoluted and difficult and largely made up of the comments on other people’s reports”.  Whilst he said the plaintiff was totally incapacitated and none of the jobs suggested were suitable, he then described the limited tasks she was capable of doing.[107]

[106]T61

[107]T62

255     It was submitted the first job of telephonist and enquiry job and the third of working at a community centre as a receptionist would satisfy the restrictions that Dr Middleton had described in the body of his report.[108]

[108]T62

256     Based on the plaintiff’s evidence and her experience in computers with the defendant, it was submitted she has transferrable skills to be able to work in one of these basic clerical jobs.  It was also submitted the current job with the defendant described by Michelle Lane was suitable.[109]

[109]T62

257     In response, counsel for the plaintiff submitted “the proof of the pudding was in the eating” in terms of the true level of the plaintiff’s capacity, exemplified by her attempts to return to work for a prolonged period to continue in return to work duties.[110]

[110]T64

258     It was submitted these return to work duties were artificially light and this was not a real job.  The plaintiff was predominantly doing scanning and was the only records clerk doing so, and with the assistance of other clerks.  She could not do that job and was not allocated the other duties that were part of that role.[111]  Significantly, the plaintiff’s employment was terminated because she could not get back to the inherent tasks of her job.[112]

[111]T64

[112]T64

259     Even if it was accepted she could continue with that job, it was submitted that would not be fatal for the plaintiff because it was an artificially created light employment; however, if she could not do that job, she could not do any of the other suggested jobs.

260     It was submitted there were two aspects of the plaintiff’s incapacity:  the first in her difficulty doing the jobs; and the second, was the whole area of her unreliability.  It was submitted if her evidence in that regard was accepted, then she was not employable.

261     Dr Bloom’s report was criticised on the basis that he had assumed there was not a physical problem, it was predominantly psychiatric and that coloured everything he said.  Further, Recovre did not even see the plaintiff and Dr Bloom’s report was the only one it had.[113]

[113]T65

262     It was submitted “So there’s this vehicle heading down a path of this is a psych case, let’s find some jobs someone can do and it is of limited assistance when there’s a lot of strong evidence that demonstrates that this is a real physical injury.”[114] That was sufficient reason to prefer the opinion of Dr Middleton to the opinion of Dr Bloom being accepted as to the organic basis for the plaintiff’s complaints.[115]

[114]T66

[115]T65-66

263     Thus, it was submitted Dr Bloom and Recovre’s report could be put to one side.  But in terms of their content, “sure they are light-ish jobs, but the job[s] do have bits and pieces about them that create an issue about whether they would be suitable anyway”.[116]

[116]T66

264     It was submitted that telephonist and enquiry role seemed to involve a lot more computer-based activities than the plaintiff had had experience in.[117]  The ward clerk job required pushing trolleys and sound basic computer skills.[118]  The work in the mail room involved bending.[119]

[117]T66

[118]T66

[119]T66

265     It was submitted those duties “are what they are” but they are not lighter than scanning and the plaintiff could not do that.[120]

[120]T67

266     In those circumstances, the plaintiff could not work more than 25 hours in the telephonist role or as a  ward clerk 24.5 hours or receptionist 26.8 hours.  Further, it was submitted she could not work more than 23 hours per week with the defendant doing even light duties compared to the more difficult tasks described by Michelle Lane.[121]

[121]T67

267     It was submitted that if the plaintiff’s viva voce evidence was accepted, she should win under both heads.[122]

[122]T68

268     Taking into account all the evidence, I am satisfied that the plaintiff has suffered the requisite loss.

269     The plaintiff clearly has a strong work ethic, working for the defendant for twenty-five years.  After the said date, she persisted with work in a very light job with difficulty, initially four days a week but reduced to three days, three months before she had to cease work because of these difficulties.

270     I accept the plaintiff’s increasing back pain and difficulty even with very light scanning work.  Whilst the incident with Ms Evans was clearly upsetting, as the plaintiff admitted, in my view, it was not why the plaintiff ceased her employment - it was because of her increasing back pain.

271     As the letter of termination set out, in the defendant’s view, the plaintiff was then unfit for the inherent duties of her role.

272     On her return to light duties, the plaintiff was very slow completing basic tasks and needed assistance to carry them out in what I accept was not a real job. She had difficulty concentrating on her wok and made mistakes due to back pain.  She required ongoing painkilling medication and support from her general practitioner.  She also needed to take quite a few days off work because of her back pain.

273     I accept the plaintiff’s explanation of the difficulty she would have getting to work, let alone performing duties on a regular reliable basis during the week. Although she may have been able to cope with some duties at work when able to sit and stand as needed, her problem is getting ready for work, getting up in the morning, getting ready, travelling to work when she is not well, and then trying to cope with the job itself, “getting there is one hurdle, working is another”.[123]

[123]T38

274     In these circumstances, the plaintiff would have difficulty attending work on a regular basis for more than a couple of days a week.  

275     Whilst Dr Bloom more recently thought the plaintiff should start on 20 hours per week as part of a graduated program, he did not consider her fit for further hours at this stage.  Although Mr Simm thought the plaintiff could have continued the level of work she was doing when her employment was terminated, he was under the misapprehension that she was working four days a week when she was only working three.

276     Further, I also accept that the plaintiff does not have the full range of skills necessary for the jobs that have been suggested.  Her computer skills are quite limited.  She could do some of the tasks involved in the suggested jobs but not all tasks, given the difficulties she experienced on her return to work after injury.

277     Significantly, Recovre was only provided with Dr Bloom’s report, which focussed on the non-organic basis of the plaintiff’s condition and did not accept a genuine ongoing physical injury.

278     Although Dr Middleton’s first report was somewhat confusing, his second report as to the plaintiff’s incapacity for the suggested jobs was quite clear and is consistent with the views of treater, Dr Desai, and Professor Bittar, that the plaintiff does not have a capacity for suitable employment.

279     Taking into account all the evidence, I am satisfied the plaintiff suffered the requisite loss, not being able to earn in excess of $672.60 per week.  I am also satisfied that this loss of permanent, no improvement having occurred in the plaintiff’s condition since she ceased work in 2016.

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

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

282 Whilst pain and suffering was conceded, having found the plaintiff’s condition is organically based, if a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, for example both for pain and suffering and loss of earning capacity.[124]

[124]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170

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

284     Having made this finding, it is not necessary to determine the application pursuant to ss(c).

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