Neal v Computer Share Document Services Limited and VWA
[2010] VCC 786
•10 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04664
| REBECCA SUE NEAL | Plaintiff |
| v | |
| COMPUTER SHARE DOCUMENT SERVICES LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 May 2010 |
| DATE OF JUDGMENT: | 10 June 2010 |
| CASE MAY BE CITED AS: | Neal v Computer Share Document Services Limited & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0786 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC and | Clark Toop & Taylor Lawyers |
| Mr M Ruddle | ||
| For the Defendants | Mr S Smith | Thomas Playford Cutlers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment from 20 October 1999 until August 2006 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged thirty six, having been born on 2 December 1973. She has a seven year old son and she has been in a defacto relationship for some fifteen years.
8 The plaintiff completed half of Year 11. After leaving school at the age of sixteen and a half, she worked in a petrol station for six months then at Godfrey Hirst Carpets for three months. Thereafter, she worked in cleaning roles on and off for three years and undertook a Certificate of Horticulture for about six months. The plaintiff then obtained a forklift licence and was able to work at Beckley Park Market, Geelong.
9 The plaintiff commenced work with the first defendant in January 1998 as a sorter and then worked as a machine operator.
10 Over the following years, the plaintiff learnt different skills, such as binding and warehousing, and by 2002, she had become a team leader, supervising up to twenty staff. However, despite this role, the plaintiff still had to operate machines, lift boxes and perform heavy work.
11 In about October 2000, whilst bending and twisting operating machines, the plaintiff had some back pain. She saw her local doctor, Dr McDonald, who put her off work for a few days. She then returned to work and had to run machines, lift boxes and perform her normal duties.
12 In about November 2003, the plaintiff again had some back pain. She saw Dr McDonald and had about a week off work. On about 5 April 2004, the plaintiff had about three sessions of physiotherapy and had about a week off work.
13 Whilst working as a team leader, the plaintiff was still operating machines and lifting heavy boxes weighing between ten and thirty kilograms. In the laser room, the documents were printed and put onto trolleys or into boxes and the plaintiff then had to lift them up and put them onto a table. The plaintiff sometimes worked eight to sixteen hours a day because she was a team leader.
14 In 2004, the plaintiff complained there were not enough trolleys and tables and it was difficult to lift the heavy boxes. After a while, some tables and two trolleys were provided. However, this was still an inadequate number given the job requirements.
15 Because of the lifting, bending and twisting, the plaintiff started to get a bit of back pain and had difficulty standing, sitting or moving suddenly.
16 In July 2005, whilst undertaking a CPR course bending over a dummy on the floor, the plaintiff experienced back pain (“the incident’). Around that time there were still not enough trolleys and there was too much heavy lifting. The plaintiff complained to Shannon Payne in Human Resources about the lack of trolleys.
17 After the incident, the plaintiff attended Dr Bogoski, who suggested she see her local doctor. Dr Bogoski gave the plaintiff a couple of days off work, together with medication, and referred her for physiotherapy.
18 The plaintiff returned to full time work but her back was still store. She continued her duties as a team leader, together with operating machines and lifting heavy boxes, twisting and turning.
19 Later that year, Shannon Payne suggested the plaintiff return to her doctor because she had complained about back pain however, the plaintiff thought she would be “okay”. She resigned as team leader and had Christmas off, hoping everything would be all right.
20 In about December 2005, the first defendant moved premises to Wirrawa Drive, Port Melbourne, from Westside Avenue, Port Melbourne.
21 On return to normal machine operating duties at the new premises in January 2006, the plaintiff was required to lift stock out of boxes from the floor and put them into the machine rather than from a table. The plaintiff asked for tables and other trolleys to be provided but was advised they were on order. Because of the lack of trolleys and tables, the plaintiff still had to bend over continuously and lift items from pallets on the floor.
22 During January and February 2006, the plaintiff had to do a lot of twisting, bending and lifting. She started to get severe pain in her back and had great difficulty with standing, sitting or lifting doing her work.
23 Because of this severe pain, the plaintiff attended Dr Harris on 2 February 2006. He sent her for physiotherapy, which she had three times a week, and also prescribed medication. She was also sent to a masseur, whom she saw three times.
24 The plaintiff was supposed to return to work on light duties but she was put in “handline” as a fill-in team leader. However, she was still required to process jobs in handline which continued to place stress and strain on her back. She was put back on full time duties, together with overtime.
25 The plaintiff’s back condition worsened. She saw Mr Wilde, orthopaedic surgeon, on 25 June 2006 and underwent an MRI scan the following month.
26 On 22 August 2006, the plaintiff had a flare-up whilst working on the handline. She attended Geelong Hospital, where she was prescribed medication and given time off work.
27 Dr McDonald, general practitioner, then put the plaintiff off work totally. The plaintiff then returned to performing alternate duties from April 2007 until October 2007. The plaintiff initially worked three hours a day, three days a week – Monday, Wednesday and Friday – then increased to four hours a day, three days a week. She was placed in light duties in data entry. She continued that work until being retrenched in October 2007.
28 In cross examination, the plaintiff denied she was coping with this level of work.
29 The plaintiff was required to carry out data entry, sitting down. She was unable to sit for long periods, so she had to keep getting up and finding other work to do, such as delivering a letter downstairs or opening the door for customers.
30 The plaintiff was very sore, unable to move around properly and when she got to work, until she did stretches and got moving again. She could sit for about half an hour “in one go”, and for approximately two hours all up in a day. She then got numbness in her toes, and pins and needles. She experienced a pinching halfway up her back, and then had bad pains across her lower back, and sciatic pain more down her left leg, but sometimes down her right.
31 The plaintiff denied that now she would be able to cope with a similar job for longer than four hours a day, as she then just made it to four hours, having driven to work with one or two stops on the way. If she were to work more hours, she would probably need to work up to it and see how she went, but she was unsure she could cope.
32 The plaintiff has constant variable back pain, together with pains and cramping in both legs. She has numbness and pins and needles in her feet with a burning sensation up her back. She has difficulty bending, sitting and standing and finds driving very difficult. Static standing is very difficult for her. If she twists or bends then the pain increases.
33 There has been no improvement in the plaintiff’s back condition since she ceased work with the first defendant.
34 Prior to suffering injury, the plaintiff had a good social life. She used to go out for dinner and would go away every now and again and visit people. She used to enjoy walking and hiking and went tenpin bowling until her shift changed some time before she hurt her back.
35 Now the plaintiff’s activities are greatly restricted. She cannot sit for long and therefore does not go to the pictures. She has great difficulty driving from Geelong to Melbourne and has to stop on a number of occasions on the trip, and when she gets to Melbourne her back is extremely painful. She has difficulty walking long distances.
36 The plaintiff tries to do as much as she can around the house but she has difficulty. She has modified her tasks. She does very little vacuuming, maybe once every three weeks. She has trouble hanging out the washing and she uses two clothes-horses and coat hangers inside, rather than using the clothesline. She has difficulty playing with her son. Since the incident, the plaintiff has done a little bit of painting but found that extremely difficult. She does gardening at times but finds that difficult and she suffers pain afterwards.
37 The plaintiff does not sit down very often at home. She paces around. There are a lot of things she just does not do now.
38 The plaintiff pushes herself to see people because she cannot sit and have a coffee “like a normal person”. Friends sometimes drag her to the shops, but she “does not go very well there”. She worries about people staring at her so she does not do “stretches” of her back in public and tries to hide her back problems as much as she can. She struggles with simple tasks like pushing a shopping trolley.
39 The plaintiff goes shopping maybe once or twice a week, and her son or partner help her with the grocery shopping. The plaintiff does not really go clothes shopping as it is difficult to walk around. She would have last gone shopping for clothes around Christmas time.
40 The plaintiff continues under the care of Dr McDonald, who prescribes Tramal, 200 milligrams, slow release, of which she takes one or two a day. He also prescribes Tramal, 50 milligrams, fast release, of which the plaintiff takes one to six tablets a day. The plaintiff also takes Avanza, 45 milligrams, one a day. However, she tries to avoid the medication, because a lot of it makes her drowsy and light-headed. She also takes Coloxyl for constipation.
41 The plaintiff has hydrotherapy once a week at Grace McKellar. She also underwent a gymnasium program but she could not afford to keep up the payments. She does stretching exercises at home.
42 The plaintiff commenced a pain management course at Barwon House, Geelong Hospital (:Barwon House”), in July 2009. She sees a specialist there every couple of months.
43 Whilst attending Barwon house, her pain has not improved but she was taught how to manage it. She learnt about “boom and bust” and she was advised to take longer to perform anything she was doing. She has found that she is now not in tears as much as she has learned how to cope with her pain a little better.
44 The plaintiff has undergone injections and she is on the waiting list to have a medial pain block from Mr McCoy on 21 June. She is also due for her three-month appointment at Barwon House in about two weeks. The plaintiff does not think she would do undergo surgery if it was suggested to her given her age.
45 The plaintiff has been in receipt of a disability pension since 21 January 2009. She has applied for voluntary work through St Lawrence Park and is obtaining information for a possible voluntary, part time light job.
46 The plaintiff has thought about becoming a self-employed picture framer working from home but she has had no experience in that area. She is contemplating whether she would be able to complete such a course that is available in Richmond, but even if she did, she thinks she would only be able to work for two hours for two to three days a week at home.
47 The plaintiff has also tried to obtain suitable part time light work through St Lawrence Park. On 19 May 2009, she started work with the Geelong Super Cats Basketball Club performing some administrative duties and stocktaking.
48 This job placement was for thirteen weeks and the plaintiff was to work four hours, two days a week - Tuesday and Thursday. On the first day at work the plaintiff only worked for three hours as her pain worsened. The following day the plaintiff had to attend Geelong Hospital where she received more medication and was an inpatient overnight.
49 There were only a few days during the placement that the plaintiff actually worked the four hours. The majority of the time she could not, and there were days that she could not go to work at all, because she was so sore and could not move. The plaintiff had to take a number of days off work because of her back pain. It took her twenty one weeks to complete the placement, which she finally finished in September 2009.
50 During the placement, sometimes the plaintiff did not work on the required day but was given a nightshift to help at the basketball game. She ushered people to their seats but she had to leave early because her pain became too bad. At work, she was unable to sit or stand for any period and found walking upstairs or on uneven ground very difficult.
51 The plaintiff considers that in the future she might be able to perform some light part time work, maybe two hours on either two or three days a week. She knows she could not work longer hours because static standing in just her normal day-to-day activities aggravates her back pain.
52 In cross examination, the plaintiff confirmed she had looked for numerous jobs since ceasing work with the first defendant. She had not applied for any full- time work, because she did not think she could do it. She was told by doctors she could do receptionist or sales assistant type work.
53 In examination in chief, the plaintiff explained the problems she would now have working as a despatch clerk.
54 The plaintiff explained that these duties involved sitting at a computer entering data. In this role, she would also be required to take trays out of cages to check that the paperwork was correct, and then take all the paperwork out to the Australia Post truck. There would be lifting and carrying of tubs for Australia Post, containing paperwork and sample mail packs. The tubs could weigh up to sixteen kilograms. They were a couple of feet long and the height of an A4 folder.
55 The plaintiff did not think that she could do that work now, because of the amount of pain that it caused in her lower back, and with the pain in her legs. There would also be pain with sitting, lifting, and twisting. When the plaintiff was working as a team leader, she also had to do these despatch clerk duties if they were a worker down.
56 The plaintiff’s defacto partner is an interstate and local truck driver who occasionally has overnight trips. The plaintiff confirmed her parents are both in poor health, and that she tries to help them as much as she can. She takes her mother to the doctor or does a bit of shopping for them. She has only cleaned her parent’s kitchen once, and her father takes her mother to most appointments. The plaintiff drops her seven year old son off at school and picks him up afterwards.
57 In cross examination, the plaintiff disagreed that because of her family commitments she would have difficulty working full time. Her parents, family and friends could babysit her son if need be, and there was after school care as well. The plaintiff “would try anything”.
58 If she did not have a back problem, the plaintiff would work full-time. She would arrange for her son to be looked after by her mother and sister, or make arrangements with friends or childcare. The plaintiff thought she “could work maybe four hours a day, two or three days a week, pushing it”.
59 In re-examination, the plaintiff said she was not the kind of person who liked sitting still. She used to enjoy her job with the daily adrenaline of getting out 150,000 mail packs. She enjoyed her daily routine of getting up to work every day, having a shower, getting her son ready for school, going to work, dropping him off, doing her work, monitoring the computer, “doing whatever was physically in her hands to meet lodgement so fines would be avoided”.
60 Work was everything to her. It was very important for her to finish the scheduled thirteen-week program with the Super Cats, because she was not the “failing type” and she “would go and go and go until she finished”.
The Plaintiff’s Medical Evidence
61 Dr Harris, general practitioner, first saw the plaintiff at the Bridge Street Clinic on 2 February 2006, after she complained of hurting herself at work the previous day, and also in September 2005. A cortisone injection was given into both left and right sacroiliac joint areas. Physiotherapy was commenced and Tramal and Voltaren were prescribed.
62 Dr Harris certified the plaintiff fit for work not involving lifting in excess of two kilograms, no repetitive bending, pushing and pulling, and seating and standing as tolerated.
63 Dr Harris continued to review the plaintiff over February 2006, until 29 March 2006. He then thought after discussions with the plaintiff’s supervisor that the plaintiff should cut down on the amount of overtime she was doing as it was thought that may have been impeding her recovery. Dr Harris certified that current alternate duties were to continue.
64 In Dr Harris’ view, the plaintiff had sustained a musculoligamentous strain of her lower back as a result of an incident at work. She had not recovered enough to return to her pre-injury duties. He noted that the plaintiff would be reviewed in April to see whether cutting down overtime had improved her condition. If there was no improvement, he would then refer the plaintiff to a specialist.
65 Dr McDonald first saw the plaintiff on 3 May 2006 when she told him she had hurt her back at work during November 2005. The plaintiff had previously attended his practice for low back pain in October 2000 and November 2003.
66 When he reported in February 2008, Dr McDonald diagnosed mechanical low back pain attributed to disc degeneration and facet arthrosis and depression.
67 Dr McDonald described the treatment modalities which had been undertaken by the plaintiff to that time which included rest, a corset, physiotherapy, hydrotherapy, specialist pain management program, nerve blocks and sacroiliac joint blocks, psychological or psychiatric assessment and counselling.
68 As of February 2008, Dr McDonald thought the plaintiff’s prognosis was guarded. He did not consider that she then had a capacity for full time employment. He considered the duration of her incapacity was uncertain, and noted she remained under specialist surveillance.
69 As of October 2007, he noted the plaintiff was working limited hours and that it was desirable that she be able to sit or stand as determined by her symptoms. He noted she found the present driving of sixty minutes to and from work difficult and he commented that to her credit she continued a tailored exercise program.
70 In a brief report dated 4 August 2008, Dr McDonald reported ‘to whomever it may concern’ that the plaintiff continued to be disabled by chronic back pain. He believed she would require a self paced gymnasium program on a regular basis for three months.
71 In his recent report of 31 May 2010, Dr McDonald confirmed his previous diagnosis of chronic mechanical low-back pain and depression.
72 Dr McDonald thought the plaintiff’s prognosis remained guarded, given that the problems had been in evidence for five years. He also believed that it was likely they would be permanent disabilities. In his view, the plaintiff remained limited in terms of her ADLs, and he thought it unlikely that she would be able to return to the workforce. He noted that, unhappily, interventions had been of limited benefit, bringing about temporary relief of the plaintiff’s pain, and no sustained improvement in her mobility.
73 The plaintiff was referred to orthopaedic surgeon, Mr Wilde, by Dr Harris. Mr Wilde saw the plaintiff on 23 May 2006 and 8 August 2006. He re examined the plaintiff on 19 March 2009 for the purposes of obtaining an up-to-date medical report.
74 When the plaintiff first saw Mr Wilde she reported that she had some back problems at work before the incident.
75 On examination on 23 May 2006, the plaintiff’s symptoms were lumbosacral pain which referred into her thoracic spinal area and left paraspinal region. In Mr Wilde’s view, there were no features suggestive of radiculopathy. The plaintiff rated her pain on a good day at two to three out ten, and eight to nine on a bad day. She did not describe any neurological symptoms. At that stage, the plaintiff was taking Tramal and using Voltaren gel and had undergone physiotherapy.
76 On examination, lumbar movements were restricted because of pain. There were no abnormal neurological findings involving the plaintiff’s lower limbs. There was tenderness in the lumbosacral region but also more widely in a non specific manner.
77 Mr Wilde organised an MRI scan of the plaintiff’s lumbar spine on 21 July 2006. It demonstrated disc desiccation at L3-4 and early degenerative changes of the facet joints at L4-5. It did not demonstrate a neural compressive lesion.
78 Mr Wilde re examined the plaintiff on 8 August 2006. Having suggested facet joint injections, which the plaintiff was reluctant to undergo, Mr Wilde advised the plaintiff that she would benefit from a core stabilising and strengthening program, and he referred her to Jeff Oakley, physiotherapist in Geelong.
79 Mr Wilde initially reported the diagnosis was exacerbation of spondylosis without radiculopathy. He thought work was a significant contributing factor. In his view, it was likely there was a degree of asymptomatic degenerative disc disease prior to injury, however the injury caused further internal disc derangement, thus precipitating symptoms.
80 Mr Wilde did not think surgery was appropriate and he considered that treatment should remain along conservative lines.
81 At that stage, Mr Wilde thought the plaintiff’s prognosis was guarded. He expected she would always suffer with low-grade symptoms of chronic lumbar pain and stiffness. He thought that she would have to modify personal and work activities to accommodate her symptoms. He considered that she was unable to return to her full time pre-injury work or other forms of physical or manual work.
82 Mr Wilde thought the plaintiff had injured either a disc, facet joint or muscle in her back. He thought, at that stage, whatever anatomical structure had been injured, the effect of the injury was not likely to last longer than five years.
83 On medico-legal review on 19 March 2009, the plaintiff told Mr Wilde of the worsening of her symptoms during the latter period working with the first defendant until October 2007.
84 The plaintiff’s symptoms on re-examination were constant back pain continued, including a burning sensation in her back, pain and cramping in both legs, together with numbness and pins and needles in her feet, and even with rest, she was restricted in most activities, including lifting, bending, sitting, standing and driving.
85 On examination, the plaintiff reported low back pain – eighty per cent – and left buttock pain to her foot and toes – twenty per cent.
86 On examination, the plaintiff was very anxious and her lumbar spinal movements were restricted due to pain. Her reflexes were equal and symmetrical and there was no wasting or weakness, although the plaintiff stated the whole of her left foot and lateral calf was numb.
87 Mr Wilde concluded the plaintiff was a thirty six year old woman with a chronic lumbar spinal condition. He diagnosed exacerbation of lumbar spondylosis without radiculopathy, to which the plaintiff’s employment had been a significant contributing factor. He maintained his views that conservative treatment, not surgery, was appropriate. He considered the plaintiff’s prognosis was guarded and he expected she would always suffer with low- grade symptoms of chronic lumbar pain and stiffness and would have to modify her personal and working activities to accommodate her symptoms to avoid further deterioration.
88 Mr Wilde repeated his earlier diagnosis and noted the recent MRI scan taken on 2 October 2007 showed a minor disc injury at L4-5.
89 In Mr Wilde’s view, in the absence of any other causative factor, it was likely the plaintiff’s work injury had been a significant contributing factor. He considered the plaintiff was likely to complain of chronic pain for many years to come, noting the usual duration for a disc disease was approximately five to seven years, provided the plaintiff exercised regularly and avoided heavy tasks. In his view, ideally this would be in part time hours, especially at the outset. Mr Wilde considered the plaintiff could work in modified or sedentary light duties employment which did not involve bending, lifting or twisting.
90 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 11 February 2008.
91 The plaintiff complained to Mr O’Brien that she had constant low back pain, the severity of which she described as six to seven out of ten. The plaintiff was then taking Tramal SR, twice a day, as well as Tramal 50 milligrams, six a day. She was also taking the anti-inflammatory, Mobic, in addition to anti- depressant tablets, and she was under the care of the Pain Management Clinic at Geelong Hospital.
92 On examination, there was some tenderness in the lower lumbar region and restriction of movement. Mr O’Brien could not find any neurological abnormality in the lower limbs.
93 Mr O’Brien noted the report of an MRI scan of the lumbar spine dated 21 July 2006 which described mild disc degeneration at L3-4 and bilateral facet joint degeneration at L4-5.
94 Mr O’Brien found very definite restriction of spinal movement, particularly extension and lateral flexion. He thought the signs associated with the MRI changes would suggest the plaintiff had symptomatic lumbar spondylosis, predominantly emanating from the L4-5 level.
95 In his view, the history indeed suggested that employment was a significant and contributing factor to the plaintiff’s current clinical condition which he regarded as stable.
96 Mr O’Brien thought there was no indication for further investigations or indeed any indications for surgery. He considered it appropriate the plaintiff continue conservative treatment and remain under the care of the Pain Management Clinic.
97 Mr O’Brien thought the plaintiff presented with moderate disability, in association with lumbar pathology. He considered she was not capable of returning to her pre-injury work. In fact, in his view, the plaintiff was now totally incapacitated, and he suggested it unlikely that she would return to any form of gainful employment in the foreseeable future. He considered the plaintiff was likely to have permanent impairment of general activities, including ongoing restrictions of social and recreation pursuits.
98 The plaintiff was initially seen by Dr Clayton Thomas, rehabilitation specialist, on 14 May 2008, and re-examined by him on 7 April 2010.
99 On re-examination, the plaintiff reported pain in the middle of her lower back, travelling to the top of her buttock. The plaintiff described a sciatic pain in her right leg. She complained of spasm in her back and a burning pain in her feet and pins and needles.
100 The plaintiff told Dr Thomas that domestically she pottered around at home and tried to help her parents. She delivered advertising pamphlets when she could but she had difficulty lifting up the pamphlets.
101 On examination, the plaintiff was tender to palpation in the lower lumbar spine, more on the right than the left. Movement was restricted.
102 Dr Thomas noted an MRI scan of the spine taken on 28 October 2008 revealed mild degenerative disc disease but no evidence of any disc prolapses or neurological comprise at any level. He did not think there was any evidence of radiculopathy.
103 In Dr Thomas’ view, the plaintiff was suffering from symptomatic spondylosis – pain arising from the degenerative changes of her lower spine. He noted that since he first examined the plaintiff, her weight had increased from sixty eight to eighty kilograms. In his view, the plaintiff needed to continue with an active exercise program and weight loss needed to be a priority.
104 Dr Thomas thought the plaintiff would struggle to be competitive in the open workforce because of her back disability, limited secondary education and experience only as an unskilled worker.
105 Dr Thomas considered the plaintiff did not have any realistic capacity to return to her pre-injury employment, and noted that she had significant difficulty in performing simple, light administrative tasks four hours a day, two days a week.
106 In summary, Dr Thomas felt the plaintiff could perform work which did not involve repetitive lifting, bending and twisting of heavy objects. He considered a five kilogram lifting limit between waist and shoulder height frequently was reasonable. He felt the plaintiff needed to work in an appropriately set up work station without prolonged travel and that she could work up to twenty five hours a week in such a position.
107 Dr McCoy from Barwon Health Pain Management Unit (“the Unit”) reported on 11 February 2009.
108 He noted the plaintiff was seen in the Unit for a consultation in February 2007 on referral from Dr McDonald in relation to a work-related back injury.
109 On initial examination, neurologically there was very little to find. In his view, although the plaintiff certainly had a lot of myofascial pain, there was nothing to suggest any nerve root entrapment. The plaintiff was booked in for some interventions which occurred in November 2008 and she underwent a sacroiliac joint block.
110 The plaintiff appreciated a decrease in fifty per cent of her musculoskeletal type pain after this procedure and a further decrease of twenty to thirty per cent of the burning and neuropathic element of her pain.
111 It was noted that during the time that the plaintiff had been in the Unit, she had undergone a number of interventions, including a sacroiliac joint block and a medial branch block. These interventions were of some but limited benefit and it was noted even radiofrequency lesioning had not produced sustainable relief of pain. The most recent of those procedures described was carried out on 13 November 2008.
112 Further, the initial consultation showed that from a psychological perspective the plaintiff was quite depressed and would not have been suitable for the impact of the Pain Management Program at the Hospital. However, over the ensuing months it was noted that her psychological condition had improved and it was suggested to the plaintiff that that three-week impact program may be of assistance to her.
113 A number of medical reports obtained by the defendants were relied upon by the plaintiff.
114 Mr Peter Scott, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 18 October 2006. On examination, there was restriction of lumbar movements and no neurological abnormalities.
115 Mr Scott saw the CT scan of the lumbosacral spine taken on 21 July 2006. At that stage, Mr Scott thought the plaintiff was unfit for work because of the development of chronic back pain, anxiety, depression and frustration, requiring more appropriate pain management.
116 Mr Scott strongly recommended the plaintiff receive treatment from a pain management clinic for her chronic pain which, in his view, appeared to be out of all proportion to any ongoing organic disability, mild disc degenerative change at L3-4 and some mild facet joint arthropathy at L4-5.
117 Mr Scott noted that the plaintiff’s work at that stage required her to stand for some twelve to sixteen hours, five days a week operating the mail machine.
118 Mr Scott thought the plaintiff was totally unfit for work by virtue of a combination of ongoing organic symptoms, inorganic or psychosomatic or depressive symptoms, with the development of what appeared to be a chronic painful situation. In his view, a return to work program at that time was inappropriate.
119 Mr Scott was forwarded a Return to Work Program at the end of 2006. He confirmed his earlier views on examination that the plaintiff should undergo a multi-disciplinary pain management program.
120 A number of reports from Adam Walters, physiotherapist at the Spine Management Clinic in Geelong, were tendered, the most recent dated August 2007.
121 Dr Gary Davison, specialist occupational physician, examined the plaintiff initially in May 2007, and in March 2008, and more recently in April 2010.
122 On the most recent examination, Dr Davison found there was loss of lumbar lordosis. Waddell’s sign was positive for apparent spinal movement. The range of active movement of the thoracolumbar spine was globally restricted to less than a third of the normal expected range. There was no evidence of a neurological deficit in the lower limbs.
123 Dr Davison noted the plaintiff presented with a long history of recurrent lower back pain and stiffness and reports of the presence of lower limb pain and sensory disturbance. However, he thought there was no radiological or clinical evidence of radiculopathy. In his view, the plaintiff appeared to have developed a Chronic Pain Syndrome.
124 Dr Davison thought it reasonable to accept employment contributed significantly to the onset of the plaintiff’s symptoms. He considered the plaintiff not capable of returning to the workforce at present, nor was she able to undertake suitable duties. He based this opinion on a report of physical tolerances and the clinical capacities demonstrated on examination.
125 Dr Davison thought there was no evidence to suggest that there was any significant level of impairment due to functional overlay, exaggeration, psychological or psychosomatic factors.
126 Dr Davison considered the prognosis for full recovery was poor. In his view, the plaintiff had availed herself of appropriate treatment modalities and rehabilitation and he thought it was unlikely she would ever return to the workforce.
127 Dr Davison noted the Recovre Assessment Report dated 30 August 2008, setting out that work as a foster carer, a sales assistant, receptionist and despatch clerk were within the plaintiff’s physical capacities, but he thought that such capabilities had diminished since that time. In his view, none of those employment options were considered to be suitable or appropriate.
Investigations
128 An MRI scan of the lumbar spine carried out on 21 July 2006 at the request of Mr Wilde showed mild disc degeneration at L3-4 and mild bilateral facet joint degeneration at L4-5. There was no spinal canal stenosis or neural compression.
129 An MRI scan of the plaintiff’s lumbar spine organised on 2 October 2007 by Dr McCoy showed degenerative disc disease at L3-4 level. However, there was no disc protrusion, central canal stenosis or neural exit foraminal stenosis at any level within the lumbar spine.
130 An MRI scan was organised by Mr McCoy on 25 October 2008. It was noted there was no significant pathology identified in the spine, with the central spinal canal capacious throughout, and a normal appearance of the spinal cord and cauda equina. There was mild disc degeneration present in the L3-4 disc, and there was a very small right paracentral disc protrusion at T7-T8 which was not associated with any neural compromise
Vocational Evidence
131 The plaintiff relied upon the JSA Job Seeker plan dated 17 August 2007. In that report, it was noted that the plaintiff was referred to JSA for job-seeking assistance in July 2007 to help her become an independent job seeker. The plaintiff was then working at her pre-injury employer; however, she could not see herself as remaining in that position, and she had been advised that suitable duties would not be continuously available.
132 The plaintiff then indicated she had been applying for positions externally to her current employer, due to her injury, current role, and the job tasks she had been completing. The plaintiff advised that she was required to alternate between sitting and standing postures during her working days to control her pain symptoms. She said that she was motivated to locate alternative employment, and that she wished to work either part-time or full-time. At that stage, the plaintiff’s current restrictions were to avoid twisting and bending, lifting greater than two kilograms, and sitting and standing for prolonged periods.
133 It was noted that the plaintiff presented as a highly motivated individual, aiming to secure alternative employment.
134 A vocational report was carried out by Dianne Perrett-Abrahams in June 2008.
135 Ms Perrett-Abrahams concluded the plaintiff suffered from a chronic condition and had no work capacity due to her chronic neuropathic pain condition for the foreseeable future.
136 She noted the plaintiff could not sit for any period of time without suffering increased pain, nor stand for longer than five minutes. In Ms Perrett- Abrahams’ view, the plaintiff’s physical aetiology prevented her from engaging in employment within the true meaning of the term.
137 Further, she considered the consequences of the plaintiff’s spinal injury had caused a Chronic Adjustment Disorder with Chronic Depression. She noted the plaintiff suffered suicidal ideation and had attempted to carry out her ideation with an overdose of her analgesic medication on one occasion.
138 In Ms Perrett-Abrahams’ view, all aspects of the plaintiff’s pre-injury work were beyond her present capability. Working operating a forklift was untenable for her, as was working in horticulture and food and service station retail.
139 Ms Perrett-Abrahams concluded the plaintiff’s psychological condition would ultimately benefit from being able to gain employment by appropriate re- training. However, without rigorous stabilisation with intense psychological treatment intervention and manageable pain levels, in Ms Perrett-Abrahams’ view, that was not a viable option.
140 A supplementary report was provided by Ms Perrett-Abrahams in April 2010.
141 The plaintiff advised Ms Perrett-Abrahams that after ceasing work with the first defendant she had strenuously applied for approximately fifty to sixty jobs in the Geelong area, requiring part time hours, with designations ranging from shop assistant to receptionist.
142 Ms Perrett-Abrahams thought the plaintiff had made considerable gains in her recovery, particularly from a psychological point of view. However, she considered the plaintiff remained significantly injured and her work capacity remained compromised and would be so for the foreseeable future.
143 Ms Perrett-Abrahams was of the view that the limitations of the plaintiff’s injury prevented her from gaining part time employment as employers would be reluctant to employ her. Without the benefit of sustained pain reduction, she believed the plaintiff’s depressive and anxiety symptoms were likely to return and further decompensate her, potentially eroding her recent gains and limit potential work capacity.
The Plaintiff’s Other Evidence
144 In her WorkCover Claim Form signed by the plaintiff on 16 February 2006, the plaintiff complained of ongoing back pain since July 2005. The date of injury was noted as 1 February 2006, when the plaintiff’s back started getting painful while operating a machine.
145 On the employer’s claim documentation dated 16 February 2006, it was noted that the plaintiff first complained of back pain six months ago, which had become worse over time with manual handling duties. It was noted, at that stage, the plaintiff was working 37.5 hours a week at $19.40 an hour, her pre- injury average weekly earnings being $727, with overtime of ten hours.
146 The plaintiff’s earnings for the 2004 to 2008 financial years were as follows:
Financial Year Earnings 2004-2005 $44,438.00 2005-2006 $48,888.00 2006-2007 $37,986.00 2007-2008 $42,293.00
147 CGU provided PIAWE figures for 24 November 2006, setting out a weekly figure of $1,010.00 based on a 37.5 hour week.
148 Various documentation relating to the plaintiff’s placement at Geelong Super Cats were tendered, including file notes and an appointment list dated 12 June 2009 setting out the problems the plaintiff was having with the placement.
149 It was suggested an ergonomic chair be provided for the plaintiff and that she undergo ongoing physiotherapy.
The Defendants’ Medical Evidence
150 Mr Robert Marshall, surgeon, examined the plaintiff in August 2008.
151 On examination, Mr Marshall could find no sign of any significant abnormality apart from perhaps a slight limitation of lumbar flexion. He considered the plaintiff’s sciatic nerve stretch test was negative on both the right and left side, and all her deep reflexes were equal and active.
152 The only positive physical finding Mr Marshall could identify was that the plaintiff did appear to be tender over the left sacroiliac joint. Nevertheless, he noted her entire presentation was rendered difficult to assess because it was clear, in his view, that she had a very large degree of psychosomatic (non- physical) overlay, and her whole demeanour was typical of abnormal pain behaviour.
153 Mr Marshall noted the MRI examinations of the lumbar spine of 21 July 2006 and 2 October 2007 confirmed the presence of degenerative disc disease at L3-4, and also at L4-5 in the earlier investigation.
154 Mr Marshall did not believe the plaintiff was suffering from an injury, work- related or otherwise. He noted that she was only in her mid thirties, but she did have some degenerative changes in the lumbar spine which, in his view, might account for some spinal discomfort. However, he thought that the plaintiff’s initial problem was of mid-thoracic pain which, in his view, could not have been the result of the forces involved in doing the CPR.
155 Mr Marshall believed the plaintiff’s current condition was the result of a relatively minor degree of degenerative change in the spine, aggravated by a considerable amount of non organic input. He considered any work component had long since resolved.
156 Mr Marshall commented that in that context, he did not agree with the comments of Dr Davison, especially given the original episode of thoracic, not lumbar, pain that happened three years ago.
157 Mr Marshall considered the plaintiff’s condition had not resolved, but he did not believe her condition materially contributed to any incapacity for work or need for treatment. He considered the plaintiff had a current work capacity and was capable of any reasonable light employment not involving the lifting of heavy weights.
158 Mr Marshall did not suggest the need for any further surgery, but he was supportive of the plaintiff undertaking regular exercise.
Investigations
159 The defendants relied upon the investigations referred to in the plaintiff’s evidence.
The Defendants’ Vocational Evidence
160 Co Work Pty Ltd carried out an assessment of the plaintiff’s occupational capacity on 5 May 2010.
161 It was concluded that the plaintiff was capable of suitable employment based on her medical and functional residual capacity. Occupationally, the plaintiff was suited to many roles, taking into account her employability factors such as her age, demographics and education.
162 Based on the interview with the plaintiff, and Co Work’s knowledge of real jobs, it was recommended the occupations of integration aide, betting clerk and retail sales assistant were potentially suitable for the plaintiff. Despatch and receptionist work was also suggested.
163 The Co Work report set out that the award rate for a TAB cashier is $15.68 an hour, or $580.16 a week. Co Work noted the gross average weekly wage for workers aged thirty six and above, working a 37-hour week as of 2009, was $29.10 per hour, or $1,077.00 per week.
164 The award rate for a sales assistant was $16.22 per hour, or $600 per week, and at the upper end, working a 37-hour week, as of 2009, it was $21.80 per hour, or $806 per week.
165 The award rate for dispatch work was $15.59 per hour, or $576 per week, with a potentially higher rate of $27.56 per hour, or $1,019 per week.
166 The award rate for receptionist work was $14.75 per hour, or $545 per week, with a potentially higher rate of $19.64 per hour, or $726 per week.
Surveillance Evidence
167 Counsel for the defendants admitted surveillance of the plaintiff had taken place over seven or so days of in excess of eighty hours. Only half an hour of film was shown.
168 There were three videos shown of the plaintiff’s activities on 12 August 2009, 6, 12 and 28 November 2009, and recent film taken on 3 April 2010.
169 The plaintiff was shown over about half an hour of film taking her son to school, walking along the street, attending a supermarket and a shopping centre, and also looking at items at Bunnings.
170 There was nothing shown in the film, in my view, which was inconsistent with any of the plaintiff’s evidence as to her level of incapacity and restriction. Further, I accept that at various times the plaintiff was shown limping, and she walked slowly.
171 Whilst there was criticism by counsel for the defendants that the plaintiff was not shown stretching to ease her back pain in the film, it was in fact her evidence that she did not stretch whilst in public because she was embarrassed about people looking at her.
172 The plaintiff also described that how she coped day to day, depended upon how many painkillers she had taken.
Overview
173 I am satisfied that the plaintiff suffered a compensable injury to her back in the course of her employment with the first defendant.
174 Save for Mr Marshall, the consensus of medical opinion is that as a result of carrying out her duties in the period of employment, the plaintiff suffers from symptomatic lumbar spondylosis, predominantly emanating from the L4-5 level.
175 It is the impairment, not the injury, that is relevant to my consideration, and therefore matters raised by counsel for the defendants as to the lack of major findings on investigation is not of particular concern. In any event, degenerative change has been shown at both L3-4 and L4-5, with some facet- joint problems.
176 I found the plaintiff to be an honest, credible witness who did not exaggerate the level of her restriction or disability. There was nothing on the surveillance film shown which was inconsistent with her complaints of pain and restriction of movement, and, if anything, the video surveillance supported her claim of pain and restriction, with her shown limping and not undertaking any particularly onerous activity.
177 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing she has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 178 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. 179 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
180 “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.
181 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.
182 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.
183 I am therefore required to determine a “without injury” earnings figure.
184 Counsel for the plaintiff submitted that the potential without injury earnings figure was in the range of $1,010.52 per week based on the plaintiff’s earnings as of November 2006, 60 per cent of which is $606.
185 With increases of 3 per cent on that figure for the following three years, the figure was $1,104, 60 per cent of which is $662.
186 Based on the plaintiff’s 2006 taxation return with 3 per cent increases for the following three years, the figure was $1,025, 60 per cent of which is $615.
187 Based solely on the 2006 taxation return, the figure is $48,888, 60 per cent of which is $563.
188 No submissions were made by counsel for the defendants in this regard
189 I accept that the figure based on the actual earnings at the end of 2006 with a yearly increase over the following three years is the figure which most fairly reflects the plaintiff’s “without injury” earnings, taking into account other documentation before the Court supporting a gradual increase in the plaintiff’s rate of pay in the preceding years.
190 To succeed in this application, the plaintiff must establish that she has a permanent loss of earning capacity of forty per cent or more - in other words she does not have the capacity to earn more than $662 per week.
191 At the date of hearing, the plaintiff’s earnings form personal exertion are nil.
192 I accept that the plaintiff is a person who, prior to injuring her back, enjoyed work and the independence it gave her.
193 She is still a relatively young woman who has not worked since a thirteen- week placement last year with Geelong Super Cats - a placement which in fact took twenty weeks or so during which time the plaintiff struggled with administrative duties.
194 Two years earlier the plaintiff was only able to work with difficulty on light duties with the first defendant, twelve hours a week over Monday, Wednesday and Friday, for four hours a day.
195 That job finished in October 2007 when the plaintiff was retrenched, however, it is clear from her own evidence and the JSA report at that time, that the plaintiff was struggling and looking for alternative work before her employment was terminated.
196 The consensus of medical opinion, save for Mr Marshall, is that because of her back condition, the plaintiff does not have the capacity for the manual duties she engaged in, addition to her supervisory/team leader role prior to suffering injury.
197 Further, medico-legal examiners, Mr O’Brien, Dr Davison and the plaintiff’s current general practitioner, Dr McDonald, considered that the plaintiff is not presently capable of any work, nor will she be so in the future because of her back condition.
198 Dr Thomas thought the plaintiff may have a capacity for work of up to twenty five hours a week in restricted duties, but in what seem to be limited circumstances with an appropriately set up work station without prolonged travel.
199 Mr Wilde put permanent restrictions on the plaintiff’s work duties in the future, ideally in part time hours, especially at the outset.
200 Whilst she may have a capacity for some part time employment in administrative work a couple of days a week for two or three hours, given her previous experience and her ongoing problems and need for ongoing strong medication, I do not accept that the plaintiff has the capacity to work the hours required to exceed the 60 per cent figure of $662 per week.
201 As counsel for the plaintiff pointed out, referring to the figures detailed in the Co Work report, the plaintiff would have to work twenty five hours at the higher rate as a betting clerk - a particularly static position - to earn $727, or in dispatch to earn $689 - a job she described problems with based on her experience with the first defendant - to earn 60 per cent of her “without injury” earnings.
202 In all the circumstances, I do not accept that the plaintiff could work twenty five hours per week in these jobs.
203 I accept that the plaintiff is an honest, credible witness who has made genuine attempts to return to work, and at best she may be able to cope with about three days of work per week, not exceeding four hours a day.
204 Therefore, I accept that the plaintiff has suffered the requisite loss of earning capacity and that such loss is permanent given the duration of her symptoms and there being no medical evidence supportive of a potential improvement in her condition.
205 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: see Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
206 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
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