O'Mahoney v Victorian WorkCover Authority
[2019] VCC 2169
•20 December 2019
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02843
| TRACEY O’MAHONEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 1, 2 and 3 April 2019 | |
DATE OF JUDGMENT: | 20 December 2019 | |
CASE MAY BE CITED AS: | O’Mahoney v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2169 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering
– loss of earning capacity – suitable work
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll [2016] VSCA 142; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
Judgment:Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Maurice Blackburn Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms K Manning | Wisewould Mahoney |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury to the lumbar spine suffered by the plaintiff in the course of her employment with Duluxgroup (Australia) Pty Ltd (“Dulux”), and particularly on 27 September 2012 (“the injury”).
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 s134AB(37) and s13AB(38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(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 application is the lumbar spine.
5 The plaintiff relied upon three affidavits, sworn 23 February 2018, 14 January 2019 and 11 February 2019,[1] and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports, and other material, which was tendered in evidence. I have read all the tendered material.
[1]Exhibit “A”
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(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, as at the date of the hearing, as being “more than significant or marked” and as being “at least very considerable”.
9 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.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing, and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Richter v Driscoll[3] and Meadows v Lichmore[4] in reaching my conclusions.
[2](2005) 14 VR 622
[3][2016] VSCA 142
[4][2013] VSCA 201
15 The defendant concedes the plaintiff suffered an injury to her lumbar spine on 27 September 2012, but does not concede such injury meets the requirements of subparagraph (a) of the definition of “serious injury” referred to above. Further, the defendant challenges whether the plaintiff has been able to disentangle the physical from the psychological effects of the injury in accordance with the principles laid down in Meadows v Lichmore[5] above.
[5]ibid
Background
16 In her first affidavit, sworn 23 February 2018,[6] the plaintiff stated as follows:
[6]Exhibit “A”
17 She was born in October 1974 and is therefore aged forty-five.
18 She attended secondary school until the end of Year 11 and thereafter did a business administration course. She worked in business development areas until she stopped work during 2010, when her husband became ill with cancer.
19 In the approximate six months between 1 July 2009 and 8 January 2010, the plaintiff earned approximately $75,000 with an IT company known as Intrapower Terrestrial Pty Ltd.[7]
[7]Exhibit “W”
20 In November 2010, the plaintiff commenced working for Dulux as a field representative part time, working twenty-four hours per week at a rate of about $22 per hour. She wished to do so because of her husband’s health concerns.[8]
[8]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [4] at Plaintiff’s Court Book (“PCB”) 22
21 The work as a field representative for Dulux involved heavy and repetitive lifting. The plaintiff would attend at various Bunnings stores and have to set up rows of Dulux’ products in the aisles. She would lift heavy products, including tins of paint, bags of garden soil and fertiliser, and boxes of silicone glues, seeds, and paint catalogues. The weights were up to 35 kilograms. She repetitively lifted these items from awkward spaces, including shelves above shoulder height and on and off pallets at floor level. This apparently involved heavy lifting, pulling and pushing.[9]
[9]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [5] at PCB 22-23
22 The plaintiff swore that her work for Dulux put a lot of strain on her back. She would get a sore back on and off whilst performing this work. She can recall having pain in her upper back in March 2011 and then pain in the lower back in March 2012. In particular, she had an episode of further pain in the course of her employment on 27 September 2012 in her lower back while she was lifting a box of Dulux paint brochures at the Bunnings’ store in Port Melbourne.[10]
[10]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [6] at PCB 23
23 In October 2012, the plaintiff went to see her general practitioner about her back pain. She had recently completed and passed an examination to qualify her for entrance to the Victorian Police Force, but had yet to undergo a physical test. If she had been accepted into the Victoria Police Academy, she would then have been able to undergo about five months of training and she hoped to qualify as an operational police officer.[11]
[11]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [7] at PCB 23
24 However, due to her back pain, the plaintiff had a CT scan on her lumbar spine on 12 November 2012 and then an MRI scan on 5 December 2012.[12]
[12]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [8] at PCB 24 and Exhibit “B”
25 The plaintiff continued with regular physiotherapy treatment and general practitioner appointments, and she was prescribed medication to help manage the pain. At this stage, she was certified as only fit for lighter duties at work, although she stated it was hard to avoid all the lifting work which was required.[13]
[13]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [8] at PCB 24
26 The plaintiff was referred to orthopaedic surgeon, Mr de la Harpe, who first examined her on 5 March 2013. He, in turn, reported on 12 May 2014.[14]
[14]Exhibit “E”
27 In June 2013, the plaintiff came under the care of Dr Neels du Toit, pain specialist, at the Metro Pain Clinic in Caulfield. He reported on 14 August 2013, 21 May 2014 and 18 August 2014.[15]
[15]Exhibit “F”
28 The plaintiff underwent right sacroiliac joint injections on 31 July 2013. Further, on 11 September 2013, the plaintiff underwent lumbar medial branch block procedures and was offered the option of a spinal cord stimulator inserted into her spine by Dr du Toit. She stated she was struggling to cope with her work.[16]
[16]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [11] at PCB 24
29 In approximately October 2013, the plaintiff was diagnosed with cervical cancer and had radical hysterectomy surgery performed in October 2013.[17]
[17]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [12] at PCB 25
30 Also, while being treated at the Peter McCallum Cancer Centre, the plaintiff was also assessed there in December 2013 for her back pain. At this stage, she was still taking strong prescribed medication for that pain.[18]
[18]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [13] at PCB 25
31 In January and February 2014, the plaintiff had radiotherapy treatment at the Peter McCallum Cancer Centre, and during this year, the pain from the surgery resolved, but her back pain continued.[19]
[19]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [13] at PCB 25
32 The plaintiff was then referred to neurosurgeon, Mr Mark Lam, who examined her in April 2014 and reported on 29 May 2014.[20]
[20]Exhibit “D”
33 The plaintiff had a further MRI scan on her lumbar spine on 14 April 2014 and a bone scan on 5 May 2014.[21]
[21]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [14][ at PCB 25 and Exhibit “B”
34 In February 2016, the plaintiff came under the care of the Barbara Walker Centre at St Vincent’s Hospital in Melbourne and she had about ten months of treatment there.[22]
[22]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [15] at PCB 25-26 and Report, Exhibit “N”
35 During this time, the plaintiff was prescribed Norspan patches for her back pain in addition to Endone medication.[23]
[23]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraphs [15] and [16] at PCB 25-26
36 At the time of this affidavit, the plaintiff was continuing to suffer from constant pain in the low back. She stated:
“The pain varies throughout the day and night but it is there at all times. The pain can be severe. I continue to use Norspan patches on a daily basis for the pain. I also use Endone medication as required for the pain.”[24]
[24]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [17] at PCB 26
37 In addition to the low back pain, the plaintiff complained of pain which radiated down her right leg and it would come and go. She found that it would get worse with prolonged sitting or standing.[25]
[25]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [18] at PCB 26
38 At this stage, the plaintiff swore that the pain gets worse with bending and twisting movements and she would often get acute pain. She stated she can get severe flare-ups which can last for about two or three days at a time, when she gets very limited with her movements and she has to spend a lot of time lying down in bed flat on her back.[26]
[26]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [20] at PCB 27
39 The plaintiff further swore that due to the back injury, she had not been able to return to any employment since October 2013. She stated she was only working at the time for Dulux, as an interim job, because she was helping her husband with his illness. She was hoping to join the police force at this time, when she would have started on a salary of about $60,000. She also stated, if she had not suffered her back injury, she was also capable of returning to her work as a business development manager, where she was capable of earning income in excess of $200,000 per year, as she had been doing at Intrapower.[27]
[27]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [24] at PCB 28
40 As to her capacity, the plaintiff swore:
“Due to my back injury I do not believe that I am capable of returning to any work as a business development manager or in similar office jobs”.[28]
[28]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [25] at PCB 28
41 The plaintiff did not believe that she could do any office-based work:
“… because of the prolonged sitting involved and the need to be a reliable worker from day to day and to work long hours. Further, I now struggle to concentrate on things and I can barely think properly due to my pain and the medication I am taking.”[29]
[29]Exhibit “A”, affidavit of the plaintiff, dated 23 February 2018, paragraph [25] at PCB 28-29
42 In her second affidavit sworn 14 January 2019, the plaintiff swore that she continued to see Dr Krish Dinesh at the Westgate Health Medical Clinic. He, in turn, reported on 30 January 2019.[30] Apart from the Norspan patches, she also takes Endone for breakthrough pain relief.[31] The plaintiff continued, at this time, to suffer from constant lower back pain, which travels across her lower back and down her right leg.[32] She swore that her lower back pain is generally about 6 out of 10 on a pain scale; however, she often suffers from flare-ups that take her pain level up to 8 to 9 out of 10.[33]
[30]Exhibit “P” at PCB 229-230
[31]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [2] at PCB 30-33
[32]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [4] at PCB 31
[33]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [5] at PCB 31
43 Activities like bending, lifting, twisting or stooping are the types of activities that cause the plaintiff worse pain. There are times when she suffers from worse pain for no apparent reason. She finds it very difficult to predict what pain levels are likely to be from one day to the next.[34]
[34]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [6] at PCB 31
44 Further, the plaintiff swore that when she suffered a flare-up she needed to rest. She often needed to lie down during the course of a day for an extended period of time, and that there were also times when she took Endone to assist her to cope with the symptoms.[35]
[35]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [7] at PCB 31-33
45 Importantly, the plaintiff swore:
“Often I find that the medication that I am taking spaces me out. It affects my memory and concentration. When I suffer flare ups and take extra Endone, I am often bombed out for days.”[36]
[36]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [9] at PCB 32
46 In her own assessment, the plaintiff considered “… [g]iven the extent of my incapacity, my age, education and work experience, I believe I am permanently unfit for the suitable work”.[37]
[37]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [11] at PCB 32
47 Apparently the plaintiff was accepted for weekly payments of compensation by WorkCover, and such payments were re-instated after a Medical Panel examined her, and she continued to receive weekly payments of compensation as at January 2019.[38]
[38]Exhibit “A”, further affidavit of the plaintiff, dated14 January 2009, paragraph [13] at PCB 33
48 In her third affidavit, sworn 11 February 2019,[39] the plaintiff simply refers to some video surveillance which, she stated, was not her and with which no issue was taken.
[39]Exhibit “A”
The Plaintiff’s medical evidence
49 Mr David de la Harpe, orthopaedic surgeon, reported on 12 May 2014,[40] to the effect that the diagnosis of the plaintiff’s condition was one of degenerative change in the lumbar spine without neural compression. His prognosis was guarded, although the plaintiff had been able to return to work on modified duties, with a 7-kilogram lifting limit. He reported:
“… it is likely that some degenerative change was present in the spine at the time of her employment with Dulux Paints, but the lifting activities required in her job have aggravated a pre-existing degenerative condition to become symptomatic in the form of back pain and non dermatomal leg pain … .”[41]
[40]Exhibit “E” at PCB 83-84
[41]Exhibit “E” at PCB 84
50 The plaintiff was also referred for an opinion from Mr Mark Lam, neurosurgeon, who reported on 29 May 2014.[42] Dr Lam took a relevant history, including the prescription of multiple analgesics, including Endone, Tramadol and Lyrica, without any improvement in her pain. On examination, he found:
“… Her lower limb neurological examination was normal with downgoing plantars from a motor perspective. On straight leg raise examination, it exacerbated her low back pain but without reproduction of sciatica.
… .”[43]
[42]Exhibit “D” at PCB 81-82
[43]Exhibit “D” at PCB 82
51 Mr Lam further stated:
“Her lumbosacral spine MRI on the 14th April 2014 showed minor degeneration of L4/5 and L5/S1 disc, but without radiological evidence of neural compression. There is also facet joint degeneration at L4/5 and L5/S1.”[44]
[44]Exhibit “D” at PCB 82
52 A bone scan ordered by Mr Lam:
“… showed mild lumbar degeneration but no significant uptake to suggest facet arthropathy or degenerative disc disease … .”[45]
[45]Exhibit “D” at PCB 82
53 Dr Neels du Toit, pain specialist, treated the plaintiff and furnished reports dated 14 August 2013, 21 May 2014 and 18 August 2014.[46] In his first report, he considered the pain was coming from the lower lumbar posterior columns and sought to treat her with right L3-5 medial branch blocks.[47]
[46]Exhibit “F” at PCB 85-95
[47]Exhibit “F” at PCB 85
54 In his second report, Dr du Toit noted:
“Prior to presenting to me she had already exhausted conservative treatment measures including intensive physiotherapy, hydrotherapy, dry needling and acupuncture. She was taking Mobic, daily, as well as Tramadol to control pain.”[48]
[48]Exhibit “F” at PCB 86
55 Importantly, Dr du Toit noted:
“… [The plaintiff] presented with an MRI scan showing disc degenerative changes at the L5/S1, L4/5 and L3/4 levels. These changes were more than I would expect for somebody of [the plaintiff’s] age.”[49]
[49]Exhibit “F” at PCB 87
56 In that report, Dr du Toit’s final diagnosis was as follows:
“It is my opinion that [the plaintiff] has chronic lower back pain, most likely coming from lower lumbar disc origin. She has symptoms and signs of neuropathic lower back, buttock and leg pain.”[50]
[50]Exhibit “F” at PCB 87
57 Functionally, Dr du Toit stated:
“In my opinion [the plaintiff] can perform all necessary activities of daily living. She is however struggling with prolonged sitting as well as activities like walking, bending and lifting. It is therefore important that she continues with her current treatment regime of physiotherapy but also an exercise programme focusing on core muscle strengthening and activation and hydrotherapy. In my opinion, this will help her to eventually return to pain-free activities of daily living and work related activities.”[51]
[51]Exhibit “F” at PCB 88
58 Finally, Dr du Toit noted:
“… She is not responding to pharmacological management. She may benefit from peripheral or spinal cord nerve stimulation as a last resort to control back and buttock pain … .”[52]
[52]Exhibit “F” at PCB 89
59 In his third follow-up report, Dr du Toit stated:
“It was my opinion from consultation on 11 June 2014 that [the plaintiff’s] known leg symptoms have been acutely exacerbated since hysterectomy and radiotherapy. The overwhelming character of her pain was neuropathic in nature.”[53]
[53]Exhibit “F” at PCB 93
60 As to the relationship with her employment, Dr du Toit stated that the plaintiff first injured her back in 2012. He further went on to say “that injury was most likely an injury to the lower lumbar discs”.[54] At that time, he thought that the best treatment option he could offer was spinal cord stimulation.[55]
[54]Exhibit “F” at PCB 93
[55]Exhibit “F” at PCB 94
61 Dr Charles Kim, pain specialist attached to the Barbara Walker Centre at St Vincent’s Hospital, reported to the treating general practitioner on 1 February 2016.[56] He noted, at that time:
“… [The plaintiff’s] current medications include Tramadol SR 150 mg bd (significant analgesic benefit, although [the plaintiff] feels that it is associated with a dry mouth, clouding of mind and short-term memory loss); Endone, 5 mg 8-12 tablets a week (providing analgesic benefit with a global impression of change of 60% /S/Es of constipation and contributing to the clouding of her mind and memory impairment).[57]
[56]Exhibit “N” at PCB 17-173
[57]Exhibit “N” at PCB 170
62 Dr Kim noted:
“… The pain is affecting [the plaintiff’s] ability to lift objects; reduced standing tolerance of less than 10 minutes; sitting tolerance of less than 20 minutes and increasing social withdrawal … .”[58]
[58]Exhibit “N” at PCB 170
63 As to the plaintiff’s psychological state, Dr du Toit noted:
“She tells me that her mood has been low although she denies felling (sic) depressed, and feels that her anxiety and low mood is related to the level of her pain. Overall, her sleep has improved, although she still complains of daily interruptions secondary to her pain.”[59]
[59]Exhibit “N” at PCB 170
64 In summary, Dr Kim considered that the plaintiff was:
“… a 41-year-old lady who presents with a three-and-a-half-year history of low back pain. The pain is most likely of a nonspecific nature with a possible aetiology of the disc or a facetogenic origin and a myofascial pain component … .
As an effect of her pain, she attributes a significant level of disability, including an inability to work as well as reduced memory and attention which are contributing to her overall distress … .”[60]
[60]Exhibit “N” at PCB 171
65 The plaintiff’s treating general practitioner, Dr Dinesh, reported to the plaintiff’s solicitors on 30 January 2019.[61] Also tendered in evidence was a copy of his clinical records, finishing on 16 January 2019.[62] He reported:
[61]Exhibit “P”
[62]Exhibit “O” at PCB 173-227
“… [The plaintiff] has been diagnosed with chronic low back pain with referral to hips and legs in a non-dermatomal distribution. According to her medical records, this injury was sustained following a work injury on the 27th September 2012 during the course of her employment with Dulux group.
…
… Yes. [The plaintiff’s] current standing tolerance is less than 10 minutes and sitting tolerance is less than 20 minutes. [The plaintiff] is unable to perform any duties involving lifting, bending, twisting, stooping, prolonged sitting, standing or walking.
…
… In my clinical opinion, [the plaintiff] is permanently incapacitated from performing suitable employment for the foreseeable future.
Dr Corry de Neef, Pain specialist at Peter Maccallum (sic) centre in a letter dated 13th April 2015 has commented that ‘unless something dramatic occurs, she is totally and permanently incapacitated’. In my opinion, her condition has not improved since this comment was made in 2015.”[63]
[63]Exhibit “P” at PCB 229-230
66 It is clear to me that on her own medical evidence, the plaintiff has made out a prima facie case of injury suffered in the course of her employment, being aggravation of pre-existing degenerative changes in the back, such that they have been rendered symptomatic, and have remained so until the time hearing, and are likely to do so into the future.
67 As a result of those symptoms, the plaintiff is taking strong painkilling medication, which, inter alia, compromises her ability to concentrate for any length of time.
68 The plaintiff denies suffering from Depression and is not receiving any treatment, therefore.
The Defendant’s medical evidence
69 The defendant relied significantly on the reports of Mr Kevin Siu, neurosurgeon, which were dated 3 May 2018, 26 June 2018, 11 January 2019 and 2 February 2019.[64] In his first report, Dr Siu took a history that some weeks after September 2012, the back pain radiated down the right lower extremity and that sometime thereafter, the plaintiff had some numbness and pins and needles ever since the injury.[65] At the time of this assessment, she was “on morphine and therefore could be vague”.[66] Further, she had had approximately fifty physiotherapy treatments which were not helpful and had been referred to Mr de la Harpe.[67] She was also presently on Endone and Norspan.[68] In summary, Dr Siu considered that since the incident in 2012:
“Her back pain has never really subsided since that time. She has had a variety of interventions, all to no avail.
She had physiotherapy for a long time and again, this provided minimal assistance.
At worst, she has aggravated a pre-existing condition with the incident of September 2012. She continues to have persistent back pain.
I believe that she is developing a chronic pain syndrome and really should be assessed by a psychiatrist, to see if there is any chronic pain disorders.”[69]
[64]Exhibit 3
[65]Exhibit 3, at DCB 23
[66]Exhibit 3, at DCB 23
[67]Exhibit 3, at DCB 23
[68]Exhibit 3, at DCB 24
[69]Exhibit 3 at DCB 25
70 In his second report, dated 26 June 2018, Mr Siu reviewed an MRI scan of the plaintiff’s lumbar spine, dated 4 December 2012. He confirmed that there were degenerative changes at L4-5 and L5-S1, with some desiccation, “but the discs are not all black yet, meaning there is still water content in those discs”.[70] He further stated he had not changed his opinion after seeing the MRI scan.
[70]Exhibit 3 at DCB 28
71 In his third report, dated 11 January 2019, Mr Siu confirmed that radiographically there were degenerative changes, but no nerve root compression. On this basis, he reported: “there is no anatomical basis for the complaints”.[71]
[71]Exhibit 3 at DCB 29
72 However, Mr Siu goes on to say:
“… [The plaintiff] certainly had symptoms but there were no clinical signs to indicate nerve root compression, which is one of the anatomical basis (sic) of pain.”[72]
(Emphasis added.)
[72]Exhibit 3 at DCB 29
73 Thereafter, he stated:
“Degenerative changes are present and some clinician may argue that pain can comes from degenerative changes, but in the context of pain radiating into the lower limb (right), that is more likely to be from nerve root irritation. But clinically there are no features of nerve root irritation.”[73]
(sic)
[73]Exhibit 3 at DCB 29
74 When Mr Siu says that pain in the right lower limb is more likely to be from nerve root irritation, he does not appear to exclude referred pain independent of nerve root irritation, nor does he appear to gainsay the fact that one can have back pain resulting from the aggravation of degenerative changes.
75 Although Mr Siu says that the aggravation of the pre-existing changes should have ceased after twelve months, he does not say why that is so and chooses to classify the continuation of symptoms as a “Chronic Pain Syndrome”.[74]
[74]Exhibit 3 at DCB 30
76 On balance, in accepting the plaintiff as a witness of truth, I consider that there is ample evidence from the plaintiff’s medical practitioners, that she has aggravated pre-existing degenerative changes to the point of rendering them symptomatic and that that aggravation has not ceased to this time. I do not believe that this finding is inconsistent with the evidence given by Mr Siu.
Loss of earning capacity
77 Following fairly vigorous examination, the plaintiff’s physical capacity to undertake alternative activities was brought into question, as was whether the ongoing disability is primarily physical or psychological.
78 In this regard, I note, as Ashley and Kaye JJA stated in Richter v Driscoll[75] at paragraph [76]:
“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[75]Supra
79 The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment”:
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise.”
80 Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[76]
[76]Richter v Driscoll (supra) at paragraph [76]
81 Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[77]
[77]Richter v Driscoll (supra) at paragraph [77]
82 Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[78]
(Emphasis added).
[78]Richter v Driscoll (supra) at paragraph [95]
83 They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[79]
[79]Richter v Driscoll (supra) at paragraph [96]
84 Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[80]
(Emphasis added.)
[80]Richter v Driscoll (supra) at paragraphs [143]-[145]
Statutory definition
85 Section 5 of the Act, relevantly recites:
“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to –
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the Certificate of Capacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b)regardless of whether –
(i)the work or the employment is available; and
(ii)the work or employment is of a type or nature that is generally available in the employment market.”
86 In my view, the limitations placed upon the plaintiff’s physical capacities referred to by her treating practitioners, in particular, Dr Dinesh, and also taking into account the heavy medication and its effect upon her ability to concentrate, and also taking into account her age, education, skills and work experience, I do not believe, looking at the plaintiff “holistically”, that she would be able to work in employment as a settled member of the workforce. Accordingly, leave will be granted to the plaintiff to issue proceedings for loss of earning capacity and general damages.
Disentanglement
87 As to the defendant’s submission that the physical injury has to be disentangled from any subsequent functional overlay, it can be accepted that in a situation where the physical injury can explain the persistence of symptoms on a permanent basis, and where those physical symptoms can meet the threshold laid down by the legislation, then a superimposed functional overlay does not operate to disentitle the plaintiff.[81]
[81]Meadows v Lichmore Pty Ltd [2013] VSCA 201 and Jayatilake v Toyota Motor Corp Australia Limited (2008) 20 VR 605
88 In my view, as already stated, I do not consider that the opinion of Mr Kevin Siu in ruling out a neurological cause for the plaintiff’s ongoing symptoms, but not ruling out aggravation of degenerative changes as a cause of pain, leads me to the conclusion that the overwhelming thrust of the plaintiff’s evidence is that the pain is physically-based because of this organic injury.
89 Further, there is corroboration for this view from the defendant’s doctors, being Associate Professor Myron Goldwasser, in his report dated 19 August 2016,[82] and the report of Dr Jager, dated 5 August 2016.[83]
[82]Exhibit “R”
[83]Exhibit “X”
90 Accordingly, leave will be granted to the plaintiff to issue proceedings for loss of earning capacity.
91 In accordance with the principles laid down in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[84] leave will also be granted to issue proceedings for pain and suffering damages.
[84][2009] VSCA 170
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