Muluneh v VWA
[2021] VCC 393
•13 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02062
| HANA MULUNEH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom Hearing) | |
DATE OF HEARING: | 16 March 2021 | |
DATE OF JUDGMENT: | 13 April 2021 | |
CASE MAY BE CITED AS: | Muluneh v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 393 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY
Catchwords: Serious injury – Medical Panel Opinion - Disentangling
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Barwon Spinners v Podolak (2005) 14 VR 622; Johns v Oaktech Pty Ltd [2020] VSCA 10; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Acir v Frosster Pty Ltd [2009] VSC 454; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Advanced Wire & Cable Pty Ltd v Abdulle[2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for both economic loss and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr B McKenzie | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff, Hana Muluneh, was born in Ethiopia in 1966. In Ethiopia she had 12 years of schooling. At age 25, she travelled as a refugee to Egypt and lived there for approximately 12 years. In 2009, she migrated to Australia. She is a widowed lady with three adult children who all live overseas.
2The plaintiff has attended English language classes and has obtained a Certificate in English as a Second Language. However, her English language skills are limited. In this application she gave evidence via an interpreter.
3In 2011, the plaintiff obtained employment with AHS Hospitality Pty Ltd (“the employer”) to work as a housekeeper, initially at a hotel in South Yarra and then, from approximately 2016, at Crown Casino. She worked full-time hours for what appears to be close to the minimum wage. For the financial year ending 30 June 2015, she had gross earnings of $34,637.
4The plaintiff, by her counsel Mr Pierorazio, submitted that, in the course of her employment with the employer, she suffered a ‘serious injury’ to her lumbar spine. She seeks a determination of “serious injury” from the Court in respect to such physical injury to the lumbar spine. She seeks to commence a common law proceeding for both pain and suffering and economic loss damages.
5This application raises issues in respect to an analysis of the evidence, in particular the medical evidence, but it does not otherwise raise novel propositions. The legal principles are well known and are not in dispute. The plaintiff seeks to establish that she has suffered a “permanent serious impairment or loss of a body function”, namely injury to the lumbar spine. In order to establish “serious injury”, it is necessary to address the following questions:
(i)first, what is the injury and what is the impairment said to be produced in consequence;
(ii)secondly, is the impairment permanent i.e likely to last for the foreseeable future;
(iii)thirdly, are the consequences for the plaintiff such so as to satisfy the test for serious injury, either in respect to the relevant “narrative test” or in respect to economic loss consequences?[1]
[1]Barwon Spinners v Podolak (2005) 14 VR 622
6The plaintiff relied on two affidavits sworn by her in support of this application and otherwise she tendered medical and radiology reports. The defendant tendered various medical and vocational assessment reports.
7In opening submission Mr McKenzie of counsel, on behalf of the defendant, submitted that there was a “very strong” flavour through all the medical material of so called non-organic features and therefore there was a live “disentanglement” issue. Further, the defendant submitted that the plaintiff’s condition was not permanent, either because there was the prospect of surgery or because the plaintiff is yet to undergo pain management.
The Medical Panel Opinion
8It is convenient to start with a discussion regarding a piece of the medical evidence that brings sharply into focus the issues in this application, and in particular whether the plaintiff’s current impairment and consequences are due to a physical injury or a psychiatric condition (or both).
9The plaintiff was referred to a Medical Panel for the purposes of her ongoing claim for statutory benefits. By Certificate of Opinion dated 29 July 2020,[2] the Panel answered several questions regarding the nature of the plaintiff’s medical condition and related matters. The referral was not a referral of a ‘medical question’ pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) and neither party, therefore, sought to argue that the Panel Opinion was binding for the purposes of this application. There was also no objection taken by either party (if one could be taken) to the Reasons for Opinion being admitted into evidence.
[2]Defendant’s Court Book (“DCB”) 61
10It is convenient to set out in full the relevant questions and answers as follows:
“Question 1. What is the nature of the Plaintiff’s medical condition (including any sequelae) relevant to the following injury as alleged in paragraph 3 of the amended statement of claim:
(i)Lumbar spine;
(“the alleged injury”)?
Answer:The Panel is of the opinion the Plaintiff is suffering from a resolved soft tissue injury of the lumbar spine, and a chronic pain syndrome relevant to the injury as alleged in paragraph 3 of the amended statement of claim.
Question 2.Was the Plaintiff’s employment with the defendant in fact, or could it possibly have been, a significant contributing factor to any, and if so which injury to:
(i) Lumbar spine injury.
Answer:The Panel is of the opinion that the Plaintiff’s employment with the defendant in fact was a significant contributing factor to the resolved lumbar spine injury.
Question 3. Does the Plaintiff’s employment with the defendant continue to be a significant contributing factor to any and if so which injury to:
(i) Lumbar spine injury.
Answer:The Panel is of the opinion that the Plaintiff’s employment with the defendant continues to be a significant contributing factor to the Plaintiff’s chronic pain syndrome.”[3]
[3]DCB 61-62
11The Reasons for Opinion are useful, to some extent, to understand the Panel’s Opinion. In the Reasons, the Panel, under the heading “Diagnosis”, stated that:
“The Panel concluded that Ms Muluneh is suffering from a resolved soft tissue injury of the lumbar spine and a chronic pain syndrome relevant to the injury as alleged ....
The Panel concluded Ms Muluneh had pre-injury degenerative lumbosacral spine changes. The Panel considered the soft tissue injury would have resolved within several months of the incident.”[4]
[4]DCB 69
12On my analysis of the Certificate of Opinion, as informed by the Reasons for Opinion, the Panel concluded that the plaintiff initially suffered a soft tissue injury of the lumbar spine but, with the passage of time, the soft tissue (organic) injury had resolved and ongoing symptoms were driven by a chronic pain syndrome. As will become clearer in these reasons, a chronic pain syndrome can be a reference to an organic condition, or to a psychologically-based condition. It is clear that the Medical Panel uses the term “chronic pain syndrome” to describe a psychologically-based condition.
13It is worth remembering that the plaintiff in this application relies only on a claimed “serious injury” by reason of a physical injury. She does not seek to rely on any psychological response. In other words, notwithstanding the Medical Panel Opinion that she had a psychologically-based chronic pain syndrome that incapacitated her for work, that is not how her case was put in this Court.
14It is this issue as to whether the plaintiff’s ongoing symptoms have a physical or psychological basis (or both) that the defendant says is “front and centre”,[5] and that the plaintiff has not, on the evidence, discharged her evidentiary burden to prove that her ongoing consequences have a substantial organic basis, as discussed in Meadows v Lichmore.[6]
[5]Transcript (“T”) 49
[6][2013] VSCA 201 at [21] and [22]
15The Medical Panel Opinion also raises an aspect of the defendant’s submission that the plaintiff’s condition is not “permanent”. The Panel said, in the Reasons for Opinion,[7] as follows:
“The Panel considered Ms Muluneh is currently taking analgesics which should be progressively reduced and consideration should be given to referring her for a pain management programme. Such treatment and services would appropriately be arranged at attendances conducted by an appropriately qualified general practitioner. The Panel noted that Ms Muluneh continues to take a narcotic analgesia for back pain which the Panel considered is not adequate or appropriate for Ms Muluneh’s medial conditions of a soft tissue injury and chronic pain syndrome and consideration should be given to a progressive reduction in her painkilling medication. The Panel further noted that Ms Muluneh is of the opinion the physiotherapy increased her back pain and is therefore not an adequate or appropriate service. The Panel considered that it may be appropriate for Ms Muluneh to undertake a multidisciplinary pain management programme and physiotherapy may be a component of such a programme. The Panel further concluded that consideration of surgery is not appropriate at this time on the basis of Ms Muluneh’s medical history, examination findings and investigations and that a pain management programme would be a more appropriate treatment.”
[7]DCB 70
The Credit of The Plaintiff
16The credit of the plaintiff is relevant to the determination of this application.[8] As already mentioned, the plaintiff has limited English language skills, requiring her to give evidence via an interpreter. I accept that the Court process, and in particular a hearing via Zoom, is an unfamiliar process for her. At times her evidence was a little difficult to follow or she seemed distracted, but this is not a case where her credit is seriously in issue. Rather than a full-blown credit attack, the defendant makes a more subtle submission regarding the plaintiff’s evidence. It is said that just because the plaintiff is a credible witness does not mean that I should just accept her description of pain and the like as being due to a physical injury. The defendant’s submission is that I need to look at the whole of the evidence to “unscramble” it.[9] The plaintiff can have a genuine belief that her pain has a physical basis, but she may be wrong in that belief and it is necessary to analyse the whole of the evidence to determine if in fact there is a persisting physical basis for her pain and description of symptoms.
[8]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
[9]T 53
The Evidence of Treating Doctors
17There is no real challenge to the evidence of the plaintiff that she performed physical work with the employer, or that in the course of that work she developed symptoms in her lumbar spine, in particular in or about June 2018. The plaintiff attempted to continue at work after developing low back symptoms. She then took a short period of annual leave to try and manage the symptoms, and attended a general practitioner, Dr Tawfik Massarany, on 7 July 2018. A CT scan was arranged on 10 July 2018, and by report that day,[10] concluded:
“Multilevel lumbar spine spondylosis. Changes are worse at L4/5 where posterior partially calcified disc protrusion combined with bilateral facet joint arthropathy and ligamentum flavum hypertrophy results in at least moderate spinal canal stenosis. Almost certain impingement upon the descending right L5 nerve within the lateral recess.”
[10]PCB 27
18Following the CT scan, the plaintiff underwent a cortisone injection into her back on 23 July 2018.
19On 1 August 2018, the plaintiff commenced attending Dr Cecilia Phua, who she describes as ‘the work doctor’. On 15 August 2018, Dr Phua referred the plaintiff to Mr Patrick Lo, neurosurgeon, and also to physiotherapy.[11] Due to a disputed WorkCover claim about funding for an attendance on a neurosurgeon, the plaintiff did not attend Mr Lo. She did, however, undergo an MRI scan on 25 September 2018.[12] The conclusion of the radiologist in respect to that scan was that it demonstrated a “[b]roadbased right paracentral disc protrusion L4-5 impinging on the right L5 nerve root”.
[11]PCB 32 and 33
[12]PCB 29
20The plaintiff had returned to work by the time she commenced attending Dr Phua. She remained working with the employer until 1 November 2018.[13] She says she was not coping due to her back pain and was forced to stop work. She has not worked since then.
[13]PCB 19
21The plaintiff says that she had not been happy with Dr Massarany[14] and so from 16 October 2018 she commenced attending Dr Monica Cooper. In a report dated 29 January 2019, Dr Cooper records that the plaintiff first attended with back and right leg pain and stated that “[t]here is no doubt that Mrs Muluneh has a diagnosis of a right L4-5 paracentral disc protrusion” and that “will possibly require neurosurgery given her ongoing weakness and sensory loss in the right leg”.[15] By 29 January 2019, Dr Cooper had, in fact, referred the plaintiff to the Western Neurological Outpatient Clinic and according to Dr Cooper, the wait list for a consultation was over eighteen months in the public system.[16]
[14]PCB 20
[15]PCB 34
[16]PCB 35
22On 2 December 2019, the plaintiff swore an affidavit in support of this application.[17] In that affidavit, she sets out ongoing pain in her lower back radiating to the right leg and foot. She sets out in that affidavit a range of restriction for day-to-day activity.[18]
[17]PCB 16
[18]PCB 20ꟷ23 inclusive
23Returning to Dr Cooper, she provided a further report dated 12 February 2020, in which she stated that:
“Ms Hannah Muluneh’s diagnosis remains unchanged since my first report. She is suffering from a L4-5 disc protrusion which causes her to have lower back pain radiating down her right leg with associated weakness and loss of sensation ion that leg”.[19]
(sic)
[19]PCB 36
24Dr Cooper goes on to state that “[s]ince the diagnosis, she has become depressed as a result of ongoing pain and weakness in her leg, and the fact that she is unable to work”.[20] She repeated her opinion that the plaintiff required an urgent neurosurgical opinion.[21]
[20]PCB 36
[21]PCB 36
25The plaintiff swore a further affidavit in support of this application on 1 March 2021.[22] In that affidavit, she again sets out a range of physical restrictions. She also said that:
“… Dr Cooper, has therefore put me on a public waiting list at Western Hospital in Footscray to see a neurosurgeon although I am told that it could be a matter of years before I get to see a neurosurgeon”.[23]
[22]PCB 23
[23]PCB 25
26Returning again to Dr Cooper, in her final report, dated 9 March 2021, she repeats her diagnosis and prognosis. Relevantly, she says that the plaintiff:
“… has chronic ongoing back pain secondary to her L4-5 disc prolapse. Her symptoms are consistent with her disc prolapse causing right L5 nerve root compression. She is on daily anti-inflammatory’s as well as analgesics. She has difficulty performing her daily activities around the house.
…
Ms Muluneh’s condition has stabilized, but she has been left with some weakness in her right leg … .
At present Ms Muluneh is unable to work due to her chronic back pain and weakness of her right leg … .”[24]
[24]PCB 38
27Dr Cooper is clearly of the opinion that the plaintiff has an L4-5 disc prolapse, which requires a neurosurgical assessment and which presently incapacitates her for a range of day-to-day activity and for work. But, in addition, Dr Cooper diagnosed a “reactive depression secondary to her back pain and inability to work” and said that “[h]er psychological state should improve once her physical state improves, i.e. after she has had her neurosurgery”.[25] In her reports, Dr Cooper does not ascribe any restrictions or recommend any treatment for “reactive depression”. Her reports, and in particular the report of 9 March 2021, clearly set out that she considers the plaintiff to be totally unfit for work and restricted for a range of day to day activity due to the back injury and associated back pain.[26]
[25] PCB 37
[26] PCB 38
28There was no other treating material tendered in evidence. The defendant did tender a Notice of Order Made in the Magistrates’ Court on 19 September 2020, as evidence of the fact that the defendant continues to accept liability for payment of reasonable medical and like expenses, however, not including physiotherapy or assessment by a neurosurgeon.
Mr Paul D’Urso, Neurosurgeon
29The plaintiff is yet to be seen by a neurosurgeon for the purposes of treatment. She was, however, referred to Mr Paul D’Urso, neurosurgeon, by her solicitors. He consulted with the plaintiff on 7 February 2020 and produced a report dated 12 February 2020.[27] In respect to diagnosis, Mr D’Urso states that “[i]t would appear Hana Muluneh is symptomatic from an L4-5 intervertebral disc prolapse causing right L5 nerve root compression”.[28] However, relevant to the main issue identified by the defendant, he says, further, that:
“Hana has gone on to develop a chronic pain presentation with a significant degree of nonorganic and functional overlay. Nevertheless, she does have an organic component to her symptoms … Surgical intervention by way of an L4-5 microdiscectomy procedure could well improve her quality of life and functional capacity.
…
Contemporary MRI scan would be appropriate of the lumbar spine. Further consultation with a suitably qualified spinal surgeon would be recommended. Consideration could be given to a microsurgical discectomy procedure … .”[29]
[27]PCB 67
[28]PCB 69
[29]PCB 69
30In a further report dated 7 October 2020,[30] Mr D’Urso stated that a physiotherapist and self-management program would be appropriate treatment, but otherwise repeats his view that surgical intervention “may well be appropriate for her condition”.[31]
[30]PCB 94
[31]PCB 95
31Mr D’Urso provided a third and final report, dated 22 February 2021, following a review consultation with the plaintiff on 19 February 2021.[32] For the purposes of that report, he was provided with a report of a CT scan of the plaintiff’s spine dated 12 February 2021.[33] Mr D’Urso was asked questions whether he agreed with the diagnosis of the Medical Panel. The relevant questions and his answers are as follows:
“10. The medical panel provided its opinion that Ms Muluneh has a resolved soft tissue injury of the lumbar spine relevant to her employment activities and has an ongoing chronic pain syndrome. Do you agree with this diagnosis of the Medical Panel?
The most recent CT scan of the lumbar spine performed in February 2021 demonstrates a right sided posterolateral L4-5 disc prolapse with subarticular L5 nerve root compression and bilateral L4 foraminal stenosis. Furthermore, there is a degenerate right paracentral disc prolapse at L5-S1 with calcification and subarticular stenosis for the right S1 nerve root. It does not appear that the condition has resolved and there is persisting nerve root compression and disability associated with the condition. I do not agree with the diagnosis of the Medical Panel.
11. Do you agree with the Medical Panel's opinion regarding treatment that suggested a general practitioner and pain killing medication was an adequate and appropriate treatment?
I note that Hana is taking Palexia 100mgs morning and night and Mobic 15mgs per day. I do not recommend that prolonged use of narcotic medication to manage chronic pain when there is an organic basis which could be better managed by surgical intervention. The long term use of narcotic medication is associated with dependency and intolerance that can cause secondary adjustment disorder and psychological effects. I would recommend that MRI imaging be obtained to assess Hana's current status. If there was evidence of persisting nerve root compression in the lumbar spine, surgical decompression would be appropriate, as she has clearly failed conservative measures. Therefore, I do not agree with the Medical Panel's opinion.”[34]
[32]PCB 96
[33]PCB 31
[34]PCB 99ꟷ100
32Mr D’Urso summarises his opinion in his most recent report by saying that the plaintiff had gone on to develop a chronic pain presentation. He repeats his recommendation for contemporary MRI imaging and she be referred to a suitably-qualified spinal surgeon regarding the option of surgical intervention.[35]
[35]PCB 101
33Pausing here, it is clear from his final report that Mr D’Urso has, in his words, also formed the view that the plaintiff has developed a chronic pain presentation with significant adjustment disorder, disability and incapacity, with a superimposed non-organic overlay. But, it is also clear that despite his finding of ‘non-organic’ signs he considered there was a persisting organic injury and that treatment options include the possibility of a lumbar microdiscectomy to decompress the right L5 and S1 nerve roots. He states that surgery should be in the setting of a multidisciplinary rehabilitation program.[36] He notes restrictions for a range of day to day domestic activity[37] and says “I do not believe that Hanna has the capacity for employment on a regular or reliable basis, given her organic pathology and taking into account her age, education, literacy, work experience and language skills”[38]
[36]PCB 98
[37] PCB 98
[38] PCB 100
34Mr D’Urso disagrees with the opinion of the Medical Panel. But, notwithstanding his disagreement with the Medical Panel, he states that the plaintiff has a chronic pain presentation which would have a psychological basis. However, on this critical issue it is clear that he was able to diagnose an organic injury to the lumbar spine, for which he thought surgery was an option, and which organic injury causes restrictions for work and social activity. It is not a situation where he considered the non-organic presentation to be such that he could not make a diagnosis of the organic injury or of the impairment and consequences from such organic injury. In other words, his report ‘disentangles’ the organic from the non-organic.
The ‘Disentangling’ Issue
35It is convenient to pause here to note that both Dr Cooper and Mr D’Urso opine that the plaintiff has ongoing symptoms from an L4-5 disc prolapse with right L5 nerve root compression, but also that she has developed psychological symptoms in response to that injury. This brings into focus the “disentangling” issue raised by the defendant.
36In assessing the consequences of a physical injury, the Court must exclude the psychological or psychiatric consequences of such injury. As such, in circumstances like this application where there are (arguably) both organic and psychological contributors to the pain, it is necessary to undertake the two-step manner as discussed in Meadows v Lichmore Pty Ltd.[39] In Meadows v Lichmore, the Court described the two-step manner as follows:
“As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. 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.
[39][2013] VSCA 201
37If I accept the opinions of Dr Cooper and Mr D’Urso, then “the first question” is answered in a manner favourable to the plaintiff’s application. Dr Cooper and Mr D’Urso consider that the plaintiff’s pain has an organic injury to the lumbar spine and that is the basis upon which they set out a range of restrictions for employment and recreational, notwithstanding a co-existent psychological condition. Accordingly, on their reports, the “disentangling issue” does not arise. But on the other hand, if I was to accept the Medical Panel Opinion, then the plaintiff’s application fails as the Panel concluded that any ongoing pain and restriction is now caused by a psychologically-driven pain syndrome and in this application the plaintiff does not rely on a psychiatric condition. I note for completeness that the Panel Opinion does not raise a disentangling issue as the Panel does not diagnose any persisting physical injury or condition. Nevertheless it does highlight the fact that there is a need to separate the organic injury from the non-organic injury/condition.
38But, as can be expected in applications of this type, there is further medical material that needs to be analysed. I turn now to the medico-legal opinion tendered by the parties. I shall deal first with the medico-legal material of the plaintiff and then the medico-legal material of the defendant.
The Plaintiff’s Medico-Legal Evidence
Dr Joseph Slesenger, Occupational Physician
39Dr Joseph Slesenger is a specialist occupational physician. He has examined the plaintiff on two occasions at the request of her solicitors and produced reports. He first examined the plaintiff on 23 January 2020 and produced a report dated 28 January 2020.[40] In his report, he diagnosed injury to the lumbar spine described as:
“° Mechanical injury to the lumbar spine.
°Aggravation of degenerative disease of the lumbar spine.
°Chronic lower back pain”.[41]
[40]PCB 41
[41]PCB 47
40In addition, Dr Slesenger also diagnosed “[p]sychological impairment, although this is outside my area of expertise”.[42] He then said “I am of the opinion that there is, in part, psychogenic element to Ms Muluneh’s presentation and in support of this, I note non-organic features, which were felt to be significant”.[43]
[42]PCB 47
[43]PCB 47
41Dr Slesenger was then asked questions about the plaintiff’s future prognosis. He said “[t]his is a difficult question to answer”. He further said: “I also recommend that she be referred to see a pain specialist to address her pain control (which appears to be suboptimal) and to address whether she is a candidate for a pain management program”.[44] Further, he said “[s]he requires further review under the care of a psychiatrist to address her mental health impairment” and that he considers her condition to be then stable.[45]
[44]PCB 48
[45]PCB 48
42Dr Slesenger re-assessed the plaintiff on 25 February 2021 and provided a report dated 3 March 2021.[46] In his second report, he repeated his opinion regarding the diagnosis of injury to the lumbar spine and a psychological impairment.
[46]PCB 50
43When Dr Slesenger re-assessed the plaintiff, she had what he described as severe tenderness to minimal palpation to the spine and he notes in his report that when he attempted to record range of movement in the lumbar spine, that movements “could not be performed”.[47] He said that:
“The clinical examination demonstrated severe global tenderness around the lumbosacral spine, absent movements in the thoracolumbar spine and severe weakness throughout both lower limbs.
There are also a number of other non-organic features, including significant differential between her seated and supine straight leg raise tests.
…
She advised of significant psychological impairment, but has not been seen by either a psychiatrist or a psychologist. This is outside my area of expertise.[48]
[47]PCB 57
[48]PCB 59
44Dr Slesenger comments in his second report that “[o]ne of the salient aspects of Ms Muluneh’s presentation is the lack of treatment to date”.[49] He recommend the plaintiff be seen by a physiotherapist and also review by a pain specialist.[50] However, after making those treatment recommendations, he said:
“With this treatment in place, I anticipate an improvement in her symptoms although taking the evidence as a whole, I anticipate that she is likely to be left with a residual impairment which is likely to impact on her capacity for employment, recreational activities as well as domestic tasks.”[51]
[49]PCB 60
[50]PCB 60
[51]PCB 60ꟷ61
45Dr Slesenger said further that, again taking the evidence as a whole, he considered the plaintiff was “unlikely to return to unrestricted pre-injury duties in the foreseeable future”.[52]
[52]PCB 61
46Dr Slesenger then answered a question as to whether he agreed with the diagnosis of the Medical Panel, as follows:
“I note that I am duty bound to accept the Medical Panel Opinion which is binding on all parties. I am in agreement with the Medical Panel, for the most part. I note that there is a significant non-physical basis to her impairment. In support of this, I noted a number of inconsistencies on evaluation although these were felt to be limited.”[53]
[53]PCB 63
47On one view, Dr Slesenger supports the defendant’s submission regarding disentangling, as he clearly records what he considered to be a number of significant non-organic factors. Further, he says that he is in agreement with the Medical Panel, for the most part, but he appears to have been influenced to some extent by a belief that he was bound by the Panel Opinion in circumstances where he was not.
48Dr Slesenger’s report needs to be read in light of his specialty as an occupational physician. As he says in his reports, psychological impairment is outside his area of expertise. He does not completely accept the Medical Panel Opinion. He does not go so far as the Panel to say that there is no injury to the lumbar spine. In fact, he says quite the opposite and diagnoses what he describes as a mechanical injury to the lumbar spine and/or aggravation of degenerative disease of the lumbar spine. He does not go so far to say that he cannot diagnose an injury (organic) within his specialty. Ultimately he is able to ‘disentangle’, even though he found some of the questions asked of him as difficult to answer. He does not say the questions regarding physical injury – the first step – cannot be answered.
49Accordingly, and bearing in mind Dr Slesenger’s comment that any psychological condition is outside his area of expertise, I conclude that he does, in fact, diagnose an organic injury to the lumbar spine and that the restrictions, as set out in his reports and in particular the restrictions for employment, are due to the underlying physical injury, bearing in mind his particular specialty as an occupation Physician. In his words:
“Based on the organic physical impairment alone, I am satisfied that Ms Muluneh has residual restriction impacting on her occupational and domestic capacity as well as her ability to engage in recreational pursuits (i.e. walking).”[54]
[54]PCB 62
Dr Peter Blombery, Pain Specialist/Cardiologist
50Next, the plaintiff was seen for medico-legal purposes at the request of her solicitors by Dr Peter Blombery, pain specialist/cardiologist, on 17 November 2020. By a report dated that day, he diagnosed “[w]orkplace injury resulting in right-sided L5 nerve root compression with disc protrusion and complicated by a pain syndrome and secondary depression and anxiety”.[55] He also recommended that the plaintiff be assessed by a neurosurgeon to see whether “there is anything to be gained by having a nerve root decompression”.[56] He further opined that the plaintiff would benefit from attendance at a pain clinic.
[55]PCB 110
[56]DCB 110
51Dr Blombery was then asked to answer a number of questions, which he did in a supplementary report dated 11 March 2021. For the purposes of that report, he was provided with a number of treating and medico-legal reports and other material. He said:
“Ms Muluneh has an underlying organic cause for her pain which is aggravation of preexisting degenerative changes in the lumbar spine and right-sided L5 nerve root compression. That has been complicated by a pain syndrome with sensitisation of pain nerve pathways.”[57]
[57]PCB 115
52Dr Blombery said that the plaintiff’s presentation is typical of a patient with an underlying injury complicated by a pain syndrome, but where there is a marked psychological reaction to the injury. He described that as “a subconscious psychological reaction to the injury, often based on sociocultural factors. It is not a marker of the fact that Ms Muluneh is purposely trying to enhance the apparent severity of her injury”.[58]
[58]PCB 115
53In answers to a number of questions in his supplementary report, Dr Blombery opined that the plaintiff was incapacitated for her pre-injury employment and that is the case indefinitely into the future.[59]
[59]PCB 116
54Dr Blombery was then asked a question regarding the Medical Panel Opinion. He said:
“It is my opinion that she does have a pain syndrome, amplifying the pain experienced from the injury in the affected area. It is my opinion that in a situation such as this, the underlying soft tissue injury has not resolved. Further, it is my opinion that it is wrong to describe aggravation of pre-existing degenerative change in the spine as a soft tissue injury. Such degenerative changes are more in the nature of mechanical injuries to the spine which are still there as a triggering factor for the development of the pain syndrome. I still consider that there may well be an indication for surgical intervention and I would not dismiss that as did the Medical Panel.”[60]
[60]PCB 117
55Dr Blombery’s diagnosis of a right-sided disc protrusion at L4-5 impinging on the right L5 nerve root is consistent with Mr D’Urso’s opinion regarding the organic injury suffered by the plaintiff. Similarly, Dr Blombery also noted a psychological reaction to the injury, but equally he notes restrictions from the organic injury as diagnosed. Where Dr Blombery’s opinion differs from the opinions of Dr Cooper, Mr D’Urso and Dr Slesenger, is that, in addition to the organic injury to the spine, Dr Blombery goes further and diagnoses an organically-based pain syndrome amplifying the pain experienced from the injury in the affected area. I accept his principal diagnosis as consistent with the other doctors mentioned, but he is on his own in respect to the diagnosis of an organically-based pain syndrome. In any event, his report does not adequately set out what are the consequences/impairment of such organically-based pain syndrome as opposed to the psychological condition. So while his report is to some extent helpful to the plaintiff’s application in respect to the diagnosis of an organically-based mechanical injury to the spine, I do not place much weight on his further opinion and in particular his opinion regarding the development of an organically-based pain syndrome.
Dr Lester Walton, Consultant Psychiatrist
56Finally, the plaintiff relied on a medico-legal report from Dr Lester Walton, consultant psychiatrist. Dr Walton examined the plaintiff on 18 March 2020 and produced a report dated 19 March 2020.[61] The plaintiff relied on that report, not in support of an application for serious injury based on a psychological condition, but rather to demonstrate that any psychological condition is of no real consequence. Dr Walton said in respect to a diagnosis that “I believe that Hana Muluneh would attract a diagnosis of an adjustment disorder with anxiety, albeit not of major severity”.[62] He said that he thought the plaintiff would be a candidate for psychological counselling, but did not need psychotropic medication, unless that were introduced as an analgesic adjunct.[63] He finally opined that her work capacity would be defined by her physical disability, but the psychiatric symptoms do amount to a minor incapacity for all work.[64]
The Defendant’s Medico-Legal Opinions
[61]PCB 102
[62]PCB 104
[63]PCB 105
[64]PCB 106
Dr Philip Haynes, Occupational Physician
57Turning next to the medical opinions relied on by the defendant, Dr Philip Haynes, consultant occupational physician, examined the plaintiff on 12 September 2018 and produced a report dated 17 September 2018.[65] That report is obviously out of date and therefore of limited assistance. His report mostly deals with questions regarding ongoing treatment and I assume it was relied on for the decision to deny the plaintiff funding for a referral to a neurosurgeon. It is clear from his report that he thought the plaintiff had degenerative change in her spine and that:
“Repetitive bending in the course of work duties may have caused transient symptomatic exacerbation of the underlying back condition but employment could not be considered the substantial contributing factor in regard to the back condition”.[66]
[65]DCB 3
[66]DCB 8
58I do not accept Dr Haynes’ opinion regarding his diagnosis and ‘causation’. I prefer, in particular, the opinions of Dr Cooper and Mr D’Urso. But also, the plaintiff is a lady with no previous history of back pain. Dr Haynes does not provide a clear path of reasoning as to why the plaintiff’s work as a room attendant would have caused a transient day-to-day exacerbation of the back condition in circumstances where the plaintiff now has ongoing back pain. In other words, his report does not properly explain his opinion how the underlying back condition, being constitutional and degenerative, has somehow become symptomatic or why the employment was only a transient exacerbation, of what was otherwise asymptomatic condition until the work produced symptoms.
Dr Mary Wyatt, Occupational Physician
59Dr Mary Wyatt is another occupational physician who has examined the plaintiff at the request of the defendant. Her first assessment was on 17 March 2020 and she then produced a report dated 20 March 2020.[67] For the purpose of that assessment, Dr Wyatt was provided with considerable documentation, including material that is not in evidence before the Court. Relevantly, Dr Wyatt notes that from the material provided to her, she could find no reference to the plaintiff suffering prior back problems. Like the other medical examiners, Dr Wyatt noted that the clinical picture suggested that non-physical factors were contributing to the plaintiff’s condition. Dr Wyatt described a “host of non-physical findings on examination”.[68] On clinical examination, Dr Wyatt found no weakness or loss of reflex in the right leg and no indication of radiculopathy.[69] In respect to diagnosis, Dr Wyatt said “the problem is best characterised as chronic low back pain. I accept Ms Muluneh has some referred pain into the right leg.”[70] Dr Wyatt otherwise thought it would not be sensible for the plaintiff to return to her normal job, as her normal job was “demanding on the back” and is likely to exacerbate her condition, but otherwise she thought the plaintiff fit to return to lighter duties.[71]
[67]DCB 28
[68]DCB 34
[69]DCB 35
[70]DCB 35
[71]DCB 36
60Dr Wyatt then re-assessed the plaintiff on 16 December 2020 and produced a report dated 20 December 2020.[72] In this further report, Dr Wyatt was asked to indicate whether she maintained her previous opinion/diagnosis. She answered that as follows:
“I have previously indicated the diagnosis is best characterised as chronic low back pain and Ms Muluneh has referred pain into the right leg. Chronic basically means long term, i.e. greater than three months. Low back pain is used as a descriptive term. It does not imply a specific causation or identify particular contributing pain generators, such as a facet joint or disc problem. It simply indicates that Ms Muluneh reports persistent low back pain and I accept her advice on this. There are no clinical features of radiculopathy.
In relation to the view of the Medical Panel that Ms Muluneh has a chronic pain syndrome, with the greatest of respect, I do not agree with this.
The term chronic pain syndrome can be used differently by different people. Generally it encompasses a situation where the person has pain, develops fear, distress, over-avoids activity, and the secondary consequences of that is that they become more disabled and more distressed. There is frequently associated mental ill-health. The clinical picture is in line with limitations and suffering.
Those with a chronic pain syndrome don’t present advising an inability to move and then can move in a way they say they cannot. That is, the symptoms and objective features line up, albeit that they may not line up with the simple physical nature of the condition. To expand on that a little further, they are limited in what they can do because of their beliefs and they become deconditioned and physically limited. Their reported limitations are in line with their actual limitations.
In contrast, as has been reported and noted on by many, Ms Muluneh indicates having difficulty sitting for short periods but has done that on a series of consultations for long periods. This has been noted within a few recent reports and at this review Ms Muluneh stood part way through the consultation. Her general movements on formal and informal aspects of the assessment were still quite disparate and this is not expected in a chronic pain scenario.
As such, I am not of the view Ms Muluneh has a chronic pain syndrome.
It is difficult in a single consultation to get an understanding of what contributes to a person reporting substantial problems. A chronic pain syndrome is one of those, however, there are many factors such as perceived injustice, claim factors, financial incentives to be sick, a wish not to return to a workplace where things have been difficult, and in some situations people simply get out of the routine of work.”[73]
[72]DCB 39
[73]DCB 41ꟷ42
61Dr Wyatt said further that:
“Taking all things into account, from a physical perspective, I think overall there is a minor degree of permanent physical residual disability.
…
In terms of whether the problem has an organic basis, this is a difficult question to answer in any meaningful way … In this situation, I think it is best to err on the side of accepting the patient’s statements and I have done this in this situation with the diagnosis of chronic low back pain, as described … I would say it is likely only a small component of Ms Muluneh’s overall presentation at this point.”[74]
[74]DCB 43
62Dr Wyatt said further that taking into account the plaintiff’s physical or organic problem only, she:
“… would anticipate her having difficulty with demanding tasks on the back … .
Expected incapacity or limitations would be avoidance of repeated deep bending, repetitive bending and twisting, static posture for extended periods, and long periods of awkward posture work with the back.”[75]
[75]DCB 44
63Finally, Dr Wyatt opined that in respect to the plaintiff’s physical or organic problem only, she was fit to return to work in a variety of roles that are less physically taxing on the back, within the limitations described in her report. She was asked to comment upon a vocational assessment report of Nabenet[76] and said she thought roles as a labeller and packer in coffee production were suitable for the plaintiff to perform full time, but that cashier work in a supermarket would not be recommended by her as a suitable full-time role, but working for twenty to twenty-five hours per week in such a role would be suitable.[77]
[76]DCB 76
[77]DCB 45
64Dr Wyatt provided a further short report, dated 15 January 2021, in which she was asked to comment upon a sales assistant job in Footscray. She said that she thought the plaintiff was capable of working full time in such a role.[78]
[78]DCB 48
65Dr Wyatt’s reports are something of a mixed bag for both the plaintiff and the defendant. From the defendant’s perspective, it is clear that Dr Wyatt considered non-organic factors were substantially contributing to the plaintiff’s presentation. But on the other hand, she does, in her words, err on the side of caution and accepted the plaintiff has an ongoing organic or physical basis to her complaints of pain. But at that point, her opinion is difficult to follow, because she does not provide a clear diagnosis for such organic or physical basis, instead using what I consider to be a label, rather than a diagnosis, when she refers to chronic lower back pain. On a lesser point, I also note that Dr Wyatt did not have the benefit of up-to-date radiology, which by way of contrast, was considered by Mr D’Urso in the last of his reports.
Associate Professor Max Esser, Orthopaedic Surgeon
66Finally, completing the review of physical examiners who have provided opinions, Associate Professor Max Esser examined the plaintiff on 18 March 2020 at the request of the defendant. He produced a report dated 1 April 2020.[79] Associate Professor Esser – like all the doctors - records that there were significant functional or non-organic components to the plaintiff’s presentation. But equally, he also said he thought “there were significant functional and organic factors to her presentation”.[80] He goes on to say that he thought the plaintiff had “some organic basis for her pain, but I think most of her discomfort may be related to other factors”[81] and that:
“I think this lady has degenerative disease of the lumbar spine, resulting in lumbar disc pathology.
…
I think it is possible there might be some non work related factors.”[82]
[79]DCB 51
[80]DCB 57
[81]DCB 58
[82]DCB 58
67Associate Professor Esser states that he did not think the plaintiff required any further specific treatment and that her prognosis was fair. He thought she could return to modified duties and that rehabilitation was not necessarily appropriate.[83]
[83]DCB 59
68In respect to the diagnosis, there is some similarity between the opinion of Associate Professor Esser and some of the other opinions I have discussed, in particular Mr D’Urso, in that he opines that the plaintiff has degenerative disease of the lumbar spine, resulting in lumbar disc pathology. He does not specifically comment upon any referred symptoms into the right leg. He accepts that there is an ongoing organic basis for her pain, but clearly he considers that the non-organic aspect to be the dominant factor at play. Associate Professor Esser does not specifically comment about the plaintiff’s ability to return to her pre-injury employment, but I interpret his report to mean that the organic condition would prevent her from returning to that work insofar as he says the plaintiff can return now to modified duties.
69The short point is that Associate Professor Esser accepts there is an ongoing organic condition affecting the lumbar spine. In that regard his opinion is different to the Medical Panel Opinion. But his opinion does raise the ‘disentangling’ issue as he is of the opinion that the majority of the plaintiff’s presentation is due to non-organic factors.
70I accept Associate Professor Esser’s opinion, to the extent it is consistent with other medical opinions as already discussed, in respect to his diagnosis of a persisting organic injury to the spine. But I do not accept his opinion that non-organic factors now dominate. I prefer the opinions in particular of Dr Cooper and Mr D’Urso who consider that the organic injury is the injury productive of impairment consequences. Dr Cooper is the treating doctor who has had the benefit of getting to know her patient over many consultations. Mr D’Urso had the benefit of two consultations with the plaintiff and he also had the benefit of the recent CT scan, which was not provided to Associate Professor Esser. Further, the conclusion that non-organic factors dominate is inconsistent with the opinion of the psychiatrists who have examined the plaintiff for medico-legal purposes, one of whom I will now discuss.
Dr Natalie Krapivensky, Consultant Psychiatrist
71Dr Natalie Krapivensky is a consultant psychiatrist who examined the plaintiff on 6 February 2020 and produced a report that day.[84] At that time, Dr Krapivensky expressed the view that the plaintiff “does not have a current psychiatric condition and has no psychiatric incapacity”.[85]
[84]DCB 14
[85]DCB 20
72Dr Krapivensky then re-examined the plaintiff on 21 January 2021 and produced a report dated 8 February 2021.[86] Her summary in that report is as follows:
“… Ms Muluneh is now a 52 year old woman who has physical deficits related to her physical condition and has no current psychiatric condition. From a psychiatric perspective she has full psychiatric capacity for preinjury, alternative or modified duties and has no psychiatric incapacity.”[87]
[86]DCB 22
[87]DCB 25
73Dr Krapivensky’s opinion is similar to Dr Walton. The specialist psychiatrists engaged by the parties both effectively find little or no psychiatric symptoms and no psychiatric diagnosis. This tends to the conclusion that non-organic factors do not dominate the plaintiff’s presentation and tends to the conclusion that the Medical Panel Opinion should not be accepted that the is a psychologically driven chronic pain syndrome that now explains the plaintiff’s account of pain and impairment.
What is the Injury and Impairment Produced in Consequence?
74The predominance of medical opinion is that the plaintiff, in the course of her employment, aggravated lumbar degenerative change and lumbar disc pathology. In the circumstances, I conclude that due to the nature of her employment with the employer, the plaintiff did aggravate lumbar degenerative change, either producing or rendering symptomatic an L4-5 disc prolapse with right L5 nerve root compression. She has an ongoing organic injury to the lumbar spine.
75I further accept the spine injury continues to produce pain and restriction for a range of employment and day-to-day activities. The level of symptoms is such that the treating general practitioner, at an early stage, considered that a neurosurgical opinion was appropriate. The plaintiff is still waiting for such an opinion, but there is the medico-legal opinion of Mr D’Urso, who is a neurosurgeon, and he considers that surgery is a potential treatment option for the physical/organic injury to the spine.
Is the Injury and Impairment Permanent?
76Before dealing with the impairment consequences in more detail, it is convenient to deal with the issue raised by the defendant in respect to permanency. In final submissions, the defendant said, via its counsel, that the permanency aspect is raised fairly and squarely by the Medical Panel, Dr Slesenger, Mr D’Urso and Dr Blombery.
77Dealing firstly with the question of a referral for pain management, I note that no medical practitioner suggests that such a referral would be aimed at curing the plaintiff’s condition. There also is an issue as to whether such a referral should be deferred until after the plaintiff has been assessed by a neurosurgeon to consider surgery. It is also relevant that in the absence of surgery and/or a pain management program, no doctor suggests that the plaintiff’s condition will spontaneously improve.[88]
[88]See, as an example, Dr Blombery, PCB 117 in answer to question 12.
78It is also relevant, in my opinion, that the treating general practitioner has not seen fit to refer the plaintiff for pain management. Dr Cooper notes that physiotherapy had not been of any benefit[89] and that the plaintiff had pursued all conservative measures, including intraarticular injections with no improvement.[90]
[89]PCB 34
[90]PCB 36
79Accordingly, in circumstances where:
· No referral has been made for pain management;
· Dr Copper considers her patient to have exhausted conservative treatment options;
· The plaintiff is still on a waiting list for neurosurgical assessment;
· No practitioner suggests pain management will restore the plaintiff to her pre-injury position; and
· A number of medical practitioners opine that there is no further treatment options available to the plaintiff -
notwithstanding that some medical practitioners consider that pain management might be an option, taking all things into account, there is no suggestion that it would be a cure, or that it is going to occur. In the circumstances, it seems to be that the plaintiff’s lumbar spine injury/condition is “permanent”, in that it is unlikely to change for the foreseeable future.
80That then leaves the question of potential surgery. Dr Cooper, Mr D’Urso and perhaps to a lesser extent, Dr Blombery, are the practitioners who consider that it is appropriate that the plaintiff obtain a neurosurgeon’s opinion regarding the need for surgery. Of course, obtaining an opinion and being recommended for surgery and/or having surgery, are different matters. It is clear that the plaintiff has been on a waiting list for some considerable time. There is no direct evidence as to when she will eventually get to consult a neurosurgeon. There is no direct evidence that even if she consults a neurosurgeon she would be able to have surgery arranged in any particular time period. Those factors alone are enough to say that the vague prospect of the plaintiff consulting a neurosurgeon and having neurosurgery are such that her condition is permanent, in that it is not likely to change in the foreseeable future. But in any event, Mr D’Urso, who is the one that deals most extensively with the prospect of surgery, puts permanent restrictions on the plaintiff’s physical capacities because of her back injury. After commenting that the plaintiff should consider a microsurgical discectomy procedure, he said “I suspect Hana will have ongoing disability and incapacity related to her spine into the future”[91] and that “I would place restriction on her capacity as a result of this condition. Hana should not be required to perform repetitive bending, twisting or lifting activity … Such restrictions are likely to be of a permanent nature into the foreseeable future”.[92]
[91]PCB 69
[92]PCB 69
81The prospect of back surgery is so uncertain. But in any event, the only medical practitioner who really discusses surgery in detail is Mr D’Urso and ultimately he places permanent restrictions on the plaintiff. Accordingly, I do not accept the defendant’s submission that the prospect of surgery means that the plaintiff’s condition is not permanent.
Economic Loss Consequences
82I have already concluded that the plaintiff continues to suffer the effects of an organic injury to the spine, which can best be described as aggravation of degenerative change, with lumbar disc involvement at L4-5 and a radiculopathy. I have already concluded that condition to be permanent.
83Turning firstly then to impairment consequences and whether the plaintiff satisfies the serious injury test for economic loss consequences, the medical opinion as a whole tends to the conclusion that the plaintiff is now permanently unfit for her pre-injury employment as a housekeeper and the defendant did not seek to argue otherwise. I conclude that the inability to perform her pre-injury employment and/or similar manual employment is a “very considerable” consequence and therefore the plaintiff has satisfied the narrative test in s325(2)(c) of the WIRC Act.
84Next, the plaintiff must satisfy the requirements of s325(2)(e)(ii) of the WIRC Act and establish that she will, after the date of the decision or hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more. It is agreed between the parties that the figure that most fairly reflects the plaintiff’s “without injury” earning capacity is $34,637 gross, which was earned by her in the financial year ended 30 June 2015.
85This is not a case in which the plaintiff relies upon a capacity for part-time hours. Her case is put on the basis that she now has no capacity at all for “suitable employment”.
86On the other hand, the defendant identified jobs it says are, after injury “suitable employment” for the plaintiff and submits that she is either fit for full-time work in such jobs or, as per the opinion of Dr Wyatt, the supermarket cashier job for twenty to twenty-five hours per week.
87In respect to full-time employment, the defendant relies on the reports of Nabenet, dated 31 March 2020[93] and the further report dated 8 December 2020.[94] The author of those reports is Ms Sarah Kelly, who gives her registered title as physiotherapist, but her occupation as rehabilitation consultant. In the first report, Ms Kelly says that she has over ten years’ experience in the clinical setting of physiotherapy and over five years’ experience working within occupational rehabilitation, delivering injury management and return-to-work services.[95] In her reports, Ms Kelly opines that the plaintiff has the skills to consider work as a labourer, packer, cashier and as a sales assistant. Any of those jobs on a full-time basis and even the cashier job at twenty to twenty-five hours per week, would deliver earnings to the plaintiff greater than 60 percent of her “but for” injury earning capacity. Accordingly, should any of those employments (or the part-time cashier job) be found to be “suitable employment”, then the plaintiff would fail the test for economic loss serious injury.
[93]DCB 76
[94]DCB 88
[95]DCB 76
88In respect to economic loss consequences, I consider it highly relevant that the plaintiff is a refugee from Ethiopia/Egypt, with significant language barriers. I consider it relevant that her only employment in Australia has been as a housekeeper, a physically-demanding job in which she was employed for modest wages. It is slightly jarring that a worker engaged in a manual job at such modest wages would now in fact be better off, notwithstanding her back injury, if I was to accept the opinions of Ms Kelly, but in any event, I note that my task is to firstly compare the gross income that the plaintiff is now capable of earning in suitable employment (“after injury earnings”) with the gross income that she was earning or was capable of earning “during that part of the period within three years and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”). The principles in respect to the performance of this task were summarised by J Forrest J in Acir v Frosster Pty Ltd,[96] as endorsed in Yirga-Denbu v Victorian WorkCover Authority:[97]
“In Acir v Frosster Pty Ltd, J Forrest J summarised a number of principles relevant to the performance of the exercise required to measure loss of earning capacity as set out in s 134AB(38)(f). The principles identified in Acir were subsequently endorsed by this in the Herald & Weekly Times v Jessop. In Acir, J Forrest J said:
First, and importantly, s 134AB(38)(f) is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.
Second (and a corollary of the first proposition), in determining without injury earning capacity, the Court is not required to make an assessment, at this stage, of loss of earning capacity as in a claim for damages. Rather, it compares the worker’s earning capacity, as defined, with the statutory formula for the assessment of after injury earnings (considered subsequently).
Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It … is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities. The exercise is not to determine loss of earning capacity – which is a damages issue, but, rather, to focus on earning capacity in a limited context.
Fourth, the sub-section does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury.
Rather, it requires the Court to fix a figure which ‘most fairly reflects the worker’s earning capacity’ without injury.”
[96][2009] VSC 454
[97][2018] VSCA 35 at paragraph [71]
(Footnotes omitted.)
89Bearing in mind that I am dealing with a gateway provision, all medical practitioners who have provided reports – with the exception of Ms Kelly of Nabenet - place physical restrictions on the type of work the plaintiff could now perform. No one suggests she should return to her pre-injury employment. All suggest restrictions for bending, twisting, lifting and the like.
90In particular, I prefer the opinions of Dr Cooper, who has had the benefit of treating her patient for some time, and the comprehensive assessments of Mr D’Urso. Those opinions are that the plaintiff is now totally incapacitated for employment. Even the less clear opinions place restrictions. Dr Slesenger was asked specifically about the jobs identified by the defendant in the Nabenet reports. He advised against returning to those jobs for the reasons set out in his last report.[98] Dr Blombery considered the plaintiff to have no capacity to perform any of the Nabenet jobs on a consistent and reliable basis.[99] Associate Professor Esser confined his comments regarding work capacity to an acceptance that the plaintiff had the capacity to return to a previous return-to-work program with the employer, which of course is no longer available to her and is not relied on by the defendant in this application. He does not comment upon the Nabenet jobs, unlike Dr Wyatt who does and her opinion is supportive of the defendant’s submission, in that she considers the Nabenet jobs as within the plaintiff’s residual physical capacity, but I reject her opinion as against the weight of the medical evidence.
[98]PCB 63ꟷ66
[99]PCB 118
91The weight of the medical evidence, which I accept, is that the plaintiff is permanently incapacitated for any “suitable employment”. Accordingly, I conclude that the plaintiff has satisfied the test in respect to economic loss consequences.
Pain and Suffering Consequences
92The plaintiff, having satisfied the test for economic loss consequences, it is not strictly speaking necessary to separately consider whether she has pain and suffering consequences which are “serious”.[100] However, for completeness, I shall briefly deal with the pain and suffering consequences, which I conclude are of themselves “serious”.
[100]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
93The plaintiff is still a relatively young woman. She has had ongoing fluctuating lower back pain and radicular symptoms into the right leg, with no suggestion that those symptoms will resolve. In fact, the defendant has not seriously challenged that the plaintiff has those symptoms. Rather, the defendant’s position, which I described earlier in these reasons as a more subtle submission, is that the plaintiff may have a perception of such symptoms, but there is no organic basis for them. Having found that there is an organic basis, I accept her symptoms as set out in her affidavit material. I also accept that the severity of those symptoms is such that she has been referred for a neurosurgeon’s opinion and there is the potential of surgery. I accept that the consequences for employment, namely incapacity for repetitive bending, twisting, lifting and the like, also translate into restrictions for day-to-day activities, the inability to engage in a range of pleasurable day-to-day activities, to manage her home, to travel without discomfort, to be unable to engage in employment, when combined with the pain and potential for surgery, are such that, in my opinion, the plaintiff has a “very considerable” pain and suffering consequence.
94Accordingly, the pain and suffering consequences are, of themselves, “serious”.
95Therefore, leave shall be granted to the plaintiff to commence a proceeding for both economic loss and pain and suffering damages.
96I shall hear from the parties as to the question of costs.
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