Obradovic v Sakata Rice Snacks Aust Pty Ltd
[2016] VCC 1224
•24 August 2016
Summer2016
S
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04373
| DRAGANA OBRADOVIC | Plaintiff |
| v | |
| SAKATA RICE SNACKS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 August 2016 | |
DATE OF JUDGMENT: | 24 August 2016 | |
CASE MAY BE CITED AS: | Obradovic v Sakata Rice Snacks Aust Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1224 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – minor disc bulging at L3-4 and L4-5 – pain and suffering – loss of earning capacity – machine operator – falling incident – organic injury – light duties – pain management
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Georgopoulos v Silaforts Painting Pty Ltd and Ors [2012] VSCA 179; Phillip Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr A Saunders | Zaparas Lawyers |
| For the Defendant | Ms J Forbes QC with Ms L Glass | Hall & Wilcox |
HER HONOUR:
Preliminary
1 The plaintiff commenced employment with the defendant in September 2000. She worked as a process worker on the production lines for the first eight years, before commencing as a machine operator in mid-2008. The plaintiff claims she suffered injury to her lower back as a consequence of the nature of these duties, as well as an incident on 24 April 2013, in which she fell from a rail forming part of a conveyor belt (“the fall”).
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity.
3 Mr J H Mighell QC appeared with Mr A J Saunders for the plaintiff and Ms J M Forbes QC appeared with Ms L M Glass for the defendant.
4 The plaintiff claims she suffered injury to her lower back, with referred pain into her right leg. The body function said to be lost or impaired is the lumbar spine.
5 The plaintiff was called to give evidence and was cross-examined. In addition, Dr Clayton Thomas, pain specialist, also gave evidence and was cross-examined. Numerous medical reports and other documents were also tendered in evidence. I have read those tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.
6 The plaintiff has the burden of proving the impairment of her lumbar spine is both serious and permanent. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment and its consequences.
Relevant background
7 The plaintiff is 41 years of age. She lives with her husband and two children.
8 The plaintiff was born in Serbia, where she completed secondary education to the equivalent of Year 11. Upon leaving school, the plaintiff worked for about four years as a machinist, and then for about two years in her family’s milk bar business.
9 In 1999, the plaintiff migrated to Australia with her family. Upon arrival, she studied English for 12 months.
10 In September 2000, the plaintiff commenced full-time employment with the defendant as a process worker. The defendant produced rice crackers. The plaintiff initially worked the day shift. However, from about 2007, she worked the night shift in order to accommodate family responsibilities. In mid-2008, she moved into the role of machine operator. In this position, she spent half of her time working on the production lines, and was responsible for supervising approximately 15 staff members.[1]
[1]Transcript (“T”) 47, Line(s) (“L”) 12-14
11 The plaintiff had a history of panic attacks, for which she required treatment from time-to-time.[2] She thought her first panic attack had been in either 2002 or 2004, at which time there had been an industrial strike at her workplace.[3] The plaintiff estimated that her anxiety state lasted for about one month, after which her symptoms went away. She could not recall if she saw a doctor at that time.
[2]Plaintiff’s Court Book (“PCB”) 12
[3]T13, L7-27
12 The plaintiff is recorded as attending the Wyndham Village Medical Centre (“Wyndham Clinic”) on several occasions between August 2007 and June 2011 regarding panic attacks. On 2 August 2007, it was recorded that the plaintiff had suffered panic attacks for two to three years. While it was recommended that she take Luvox medication, the plaintiff did not think she took such medication at that time.[4]
[4]Exhibit 2, T78, L30-31 and T79, L1
13 On 6 May 2009, the plaintiff’s past history of panic attacks was noted, and she was booked to see a psychologist the following day.
14 On 3 September 2009, it was noted the plaintiff had been on Paroxetine, but that her condition had not improved and she had suffered panic attacks.
15 On 1 March 2010, it was noted the plaintiff was unwell with anxiety, which had started five years ago. The record indicated the plaintiff was prescribed Effexor medication, although her recollection was that she did not take that medication.[5]
[5]T20, L5-10
16 On 28 June 2011, the plaintiff complained of recent panic attacks that were so frequent she was unable to attend work. The plaintiff confirmed she missed a few days of work at this time.[6] It was noted that she had not responded to Valerian medication and she was prescribed Sertraline.
[6]T21, L10-12
17 Prior to suffering her injury the subject of this claim, the plaintiff enjoyed good health. She worked without restriction and engaged in a full range of activities.[7] The plaintiff was responsible for all domestic household tasks in her family home. She enjoyed gardening three to four times per week, and tended a vegetable garden. The plaintiff also enjoyed playing actively with her youngest son. She had an intimate relationship with her husband.
[7]PCB 12
The injury and its consequences
18 The plaintiff claims that her back injury was caused by the nature of her duties throughout the course of her employment with the defendant. The plaintiff was required to perform duties of a heavy and repetitive nature, which necessitated repeated bending, twisting and lifting.[8]
[8]PCB 6
19 In late 2010, the plaintiff started to develop back pain as a result of her work duties. The pain got progressively worse over the following five or so months.
20 In March 2011, the plaintiff first sought treatment for her back from general practitioner, Dr Alexander Demar. She saw him from time-to-time, when she was unable to see her usual general practitioner, Dr Robert Padanyi. Dr Demar put the plaintiff on light duties for about two months, and sent her for a course of physiotherapy. The plaintiff then resumed normal duties without restriction.[9]
[9]PCB 15
21 The plaintiff claimed that, following this treatment, she made a near full recovery; although admits she would often get pain in her back at the end of a work day, for which she would get a massage.[10]
[10]PCB 13
22 On the evening of Tuesday 24 April 2013, the plaintiff fell from a rail that formed part of a conveyor belt. The rail was about 50 centimetres off the ground. The plaintiff’s foot slipped, and she stumbled backwards jarring her back.
23 The plaintiff completed her shift, finishing at 6:30am the following morning. The plaintiff was then off work for over two months. During that period, she consulted her general practitioner, Dr Padanyi. He provided her with WorkCover certificates stating she was unfit for any duties until 24 June 2013.[11]
[11]Exhibit B
24 In June 2013, the plaintiff attempted a return to work on light duties. It was intended that she work five hours a day, on a Monday, Wednesday and Friday. The certificate at that time stated that the plaintiff should avoid prolonged standing, sitting and bending and, further, that she avoid any lifting greater than five kilograms.[12]
[12]Exhibit B
25 The plaintiff worked two days under this return to work plan, but felt she was then unable to continue. She said that part of the light duties had involved her bending over to get paperwork from boxes on the ground, which she found aggravated her pain.[13] The plaintiff has not worked since that time.
[13]T24, L3-13; PCB 15
26 At about that time, the plaintiff decided to consult a new general practitioner, Dr Peter Andrianakis. She felt that Dr Padanyi had changed his mind about her capacity to work, after receiving letters from the insurer.[14] She had also heard from her husband that Dr Andrianakis was a more understanding doctor, and she was keen to obtain a second opinion. The plaintiff has continued to consult Dr Andrianakis on a regular basis since that time.
[14]T26, L24-31; T27, L1-9
27 Dr Andrianakis referred the plaintiff to neurosurgeon, Mr Aliashkevich. She consulted Mr Aliashkevich in July 2013, at which time he noted that the plaintiff complained of lower back pain, with a feeling of pain and numbness in the lumbar sacral. He further noted, that the plaintiff complained of right sided sciatic pain extending down to her heel. Mr Aliashkevich noted that, at that time, the plaintiff was undergoing osteopathic treatment and physiotherapy with marginal relief.
28 Mr Aliashkevich arranged for CT and MRI scans to be taken of the plaintiff’s lumbar spine. The MRI scan, performed on 27 May 2013, demonstrated minor disc bulging at L3-4 and L4-5, without evidence of nerve impingement.[15]
[15]PCB 95
29 Mr Aliashkevich then recommended the plaintiff consult a pain specialist and continue with physiotherapy.
30 In September 2013, the plaintiff was referred to the Metro Spinal Clinic, where she initially consulted Dr Masiiwa Njawaya, and was then referred to pain specialist, Dr Paul Verrills.
31 In his report dated 1 July 2016, Dr Verrills noted that the plaintiff presented with substantial pain and disability. In his pre-consultation questionnaires, the plaintiff’s answers indicated that she was “more or less in the crippled range”[16] and that such pain “may not be neuropathic in nature.”[17]
[16]PCB 76
[17]PCB 76
32 Dr Verrills made a provisional diagnosis of sacroiliac joint pain, and he performed a right sacroiliac joint injection on 17 December 2013. Dr Verrills noted there was no improvement in her pain. The plaintiff complained the injection worsened her pain.[18] Dr Verrills considered this a negative result, which, in his opinion, ruled out the sacroiliac joint as being the cause of the plaintiff’s pain.[19]
[18]PCB 14
[19]PCB 77
33 In 2014, the plaintiff obtained physiotherapy.
34 In January 2015, the plaintiff was referred to pain specialist, Dr Clayton Thomas. He examined the plaintiff and considered that she was suffering chronic pain syndrome with probable central sensitisation.[20] He also noted that she was depressed and severely anxious. Dr Thomas arranged for the plaintiff to undergo a pain management course in the middle of 2015. In cross-examination, Dr Thomas explained that the course involved physiotherapy and psychological counselling, and was intended to assist the plaintiff in learning to manage her pain physically, emotionally and psychologically.[21]
[20]PCB 71
[21]T86, L1-3
35 In a report dated 28 June 2016, Dr Thomas stated that in his opinion, the plaintiff suffered pain from one or other of the lower lumbar spine levels, and that she was suffering a chronic pain syndrome with probable pain sensitisation, rather than mechanical backache.
36 At the request of the plaintiff’s solicitors, Dr Thomas re-examined the plaintiff in July 2016. On examination, Dr Thomas noted that the plaintiff has two centimetres wasting of her right calf compared to her left, and weakness of the right lower limb. He also noted that straight leg raising, when the plaintiff was both seated and lying, reproduced right buttock pain. Dr Thomas considered these were signs indicating that “something’s going on here even if we can’t really work out what it is that’s doing that”.[22]
[22]T76, L5-6
37 Dr Thomas was of the opinion the plaintiff was suffering an organic pain syndrome.[23]
[23]T72, L27-28
38 In his viva voce evidence, Dr Thomas explained that he consider the plaintiff’s backache to be non-mechanical, as her pain was fairly constant, and was not greatly improved by a change in posture.[24]
[24]T73, L1-16
39 Dr Thomas considered the plaintiff was suffering a degree of central sensitisation. He explained that this occurs when a patient’s pain pathways are turned on, but are not turned off again. By way of example, Dr Thomas referred to a person whose foot is injured in an accident and subsequently amputated, and the patient still suffers pain in the foot following the amputation.[25] Dr Thomas acknowledged that sometimes people’s pain sensitization improves over time.[26]
[25]T74, L1-10
[26]T88, L6-9
40 Dr Thomas was cross-examined on the non-organic component of the plaintiff’s condition. He said “the only non-organic component is the fact she’s depressed and onto antidepressants.”[27] Dr Thomas noted that he had not made any findings of functional overlay or abnormal illness behavior.
[27]T83, L15-16
41 Dr Thomas acknowledged that he did not have details of the plaintiff’s past psychiatric history of panic attacks. When that history was put to him, including the prior prescription of antidepressant medication, Dr Thomas said that such a history made it more likely the plaintiff would suffer a long-term pain problem, than someone who was more emotionally robust. He explained it in this way:
“..so if you're not emotionally robust, you're more likely to have - it's not a forgone conclusion but you're more likely to develop long-term pain, and it's because the brain has a very powerful descending system which acts like a mute button on the pain, so instead of unrestricted pain going up to the brain, it turns the pain off and that's the only relevance. If you're anxious and depressed at the time of an injury for whatever reason, whether it be unrelated or related to the incident, you're more likely to develop long-term pain.”[28]
[28]T79, L23-31; T80 L1 -2
42 The plaintiff continues to see Dr Andrianakis regularly.[29] He provides the plaintiff with Certificates of Capacity, which note that she suffers “lower back pain (discogenic) thoracic spine pains”, and that she is unfit for any duties, and has no capacity for employment.[30]
[29]T35, L28-31; T36 L1-9
[30]Exhibit B
43 In his most recent report to the plaintiff’s solicitors, dated 16 June 2014, Dr Andrianakis detailed the treatment provided to the plaintiff and investigations performed. In his opinion, the plaintiff suffered a work-related lower back injury in the course of her employment. Dr Andrianakis considered that “the nature of this injury is soft tissue damage and some disc bulging in the lower back as there is neuropathic pain into the lower limbs.”[31]
[31]PCB 49
44 The plaintiff complains of chronic back pain, which radiates into her right buttock and down into her right knee. She said the intensity of the pain varies, and that some days are worse than others.[32] The plaintiff said she experiences severe pain at least some part of each day, at which time she rates it eight or nine out of ten.[33] The plaintiff said that on most days, she needs to lie down for two to three hours, to manage her symptoms.[34]
[32]T36, L10-20; T37, L13-22; T38, L1-3
[33]PCB 19
[34]PCB 19
45 The plaintiff said her sleep is interrupted, and that she usually wakes two or three times a night from pain. As a consequence, she often wakes feeling tired. The plaintiff is concerned that a lack of sleep would impact upon her reliability if she were to return to work.[35]
[35]T63, L25-30; T64, L25-27
46 The plaintiff takes Lyrica, Endep and Duloxetine on a daily basis, together with up to four Panadol Forte. She occasionally takes Valium.
47 The plaintiff claims she is now greatly restricted in the household duties she is able to perform. Her husband, who also has a back injury for which he has required spinal surgery, now completes the majority of the work in and around the home. In particular, the plaintiff’s lower back pain prevents her from vacuuming, sweeping and cleaning.
48 The plaintiff also complained that her ongoing lower back pain restricts what she can do with her children.
49 The plaintiff said that she does not have a fixed daily routine. She said she sometimes takes her son to and from school. She completes the exercises she learnt at the pain management course, but does not do these at a fixed time each day. The plaintiff also said that she spends part of her day playing games, on either her home computer or her phone.[36]
[36]T50, L23-27; T51, L1-21
50 The plaintiff has suffered an aggravation of her pre-existing psychiatric condition. Soon after ceasing work, she became increasingly anxious about the persistence and severity of her lower back and leg pain. This formed part of her reason for seeking a second opinion from Dr Andrianakis.
51 The plaintiff was referred to psychologist, Mr John Karamanos, in approximately December 2014. She consulted him on a further 11 occasions, until 5 July 2016. Mr Karamanos provided the plaintiff with treatment to assist her in coming to terms with her physical symptoms, and to teach her psychological methods of pain control.[37]
[37]PCB 87
52 The plaintiff was also referred to psychiatrist, Dr Kirthi Kumar, in early 2015. The plaintiff consulted Dr Kumar on two occasions in 2015, and has seen him every six weeks in 2016.[38] Dr Kumar diagnosed the plaintiff as suffering an Adjustment Disorder with anxiety and depressive symptoms. He considered that it was in the plaintiff’s best interests to look for alternative duties in a different workplace, and noted that a successful return to work would depend “on her level of interest, motivation and persistence with new employment.”[39] He felt that a gradual return to work in suitable employment would increase the plaintiff’s self-esteem.[40]
[38]T11, L23-24
[39]PCB 67
[40]PCB 67
53 The plaintiff said that she felt her anxiety condition has improved in recent months, and that she has fewer panic attacks now than before.[41]
[41]T54, L15-29
Medico-legal evidence
54 The plaintiff’s solicitors arranged for the plaintiff to be examined by neurosurgeon, Mr David Brownbill, in May 2014 and April 2016. In his first report, dated 13 May 2014, Mr Brownbill considered that the plaintiff had sustained aggravation of degenerative changes giving rise to pain, with nerve root irritation involving right leg pain.[42] Although he noted that the anatomical basis for her pain has not been demonstrated, he accepted that it was of a physical organic nature. He noted that the plaintiff had developed an emotional reaction to the initial pain which, in his opinion, accentuated and perpetuated her perception of pain. He considered that the plaintiff was incapable of returning to her previous employment and that in seeking alternative employment, she should avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing and sitting.[43]
[42]PCB 103
[43]PCB 104
55 In his second report, dated 21 April 2016, Mr Brownbill confirmed his earlier diagnosis and stated that, in his opinion, the plaintiff’s pain was of a physical organic nature.[44]
[44]PCB 110
56 The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Joseph Slesenger, in June 2016. Dr Slesenger obtained a history that the plaintiff had fully recovered after initially suffering back pain in 2010. When asked about this in cross-examination, the plaintiff said that she could not remember telling Dr Slesenger that she had fully recovered. She agreed that Dr Slesenger was mistaken, and acknowledged that she had suffered intermittent lower back pain since that time.
57 Upon examination, Dr Slesenger noted no differential in the plaintiff’s lower limb measurements. In performing a straight leg raise test, he noted that the plaintiff was restricted to 30 degrees in the right leg.[45]
[45]PCB 119
58 Dr Slesenger ultimately diagnosed the plaintiff as suffering soft tissue injury to the thoracolumbar spine with chronic pain disorder. Dr Slesenger was of the opinion, that based on the plaintiff’s physical spinal impairment alone, she did not have the capacity to return to her pre-injury duties. In relation to alternative employment, Dr Slesenger was of the opinion the plaintiff had the theoretical capacity for work with the following restrictions:
·no push, pull, carry or lift over five kilograms;
·sit and stand as required;
·no repetitive bending or twisting;
·four hours a day, four days a week;
·five minute rest break per hour;
·driving limited to 30 minutes in each direction with a break every 10 minutes.[46]
[46]PCB 123
59 However, Dr Slesenger was of the view, that taking into account the plaintiff’s lack of qualifications, the limited nature of her occupational activities within Australia and her limited capacity to read and write English, that it was unlikely she would be able to return to work in a role for which she had suitable training, expertise and experience. He also felt that the variability and unpredictable nature of the plaintiff’s symptoms was such that, in his opinion, the plaintiff was unlikely to attend work on a consistent and reliable basis.[47]
[47]PCB 123
60 In a supplementary report dated 19 July 2016, Dr Slesenger commented upon the medico‑legal opinion of Mr Dooley, as well as video surveillance taken of the plaintiff on 13 and 17 July 2013. After reviewing that material, Dr Slesenger stated that his opinion remained unchanged.[48]
[48]PCB 123.3
61 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Clive Jones, in April 2011 and July 2014. In his first report dated 26 April 2011, Mr Jones considered the plaintiff to be a genuine individual, who had ongoing back discomfort.[49] Mr Jones considered the plaintiff suffered minor levels of discogenic backache, which he considered to be age-related.
[49]Defendant’s Court Book (“DCB”) 66
62 In his second report dated 13 July 2014, Mr Jones noted that the plaintiff’s back symptoms had intensified and her pain was more constant. Following a physical examination, Mr Jones considered functional illness was present and he diagnosed a “somewhat exaggerated discogenic low backache”.[50]
[50]DCB 71
63 The defendant also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, in June 2016. In his report dated 19 June 2016, Mr Dooley stated that in his opinion, the plaintiff had sustained a soft tissue injury at work that had aggravated underlying degenerative disc disease. He commented that her ongoing pain and disability were greater than he would expect to see for her organic condition.[51] Mr Dooley considered the plaintiff was suffering a chronic pain syndrome as, in his opinion, her symptoms were disproportionate to her organic injury.[52]
[51]DCB 150
[52]DCB 151
64 Mr Dooley considered the plaintiff had the physical capacity to carry out light physical work and clerical duties. He said that from a physical capacity, the plaintiff could do product examining work, hand packing work and dispatch clerk-type work.[53]
[53]DCB 151
65 The defendant relied upon numerous medico-legal reports provided by specialist in occupational medicine, Dr Chris Baker. Dr Baker examined the plaintiff on multiple occasions; initially in August 2013 and then again in April 2014, July 2015 and May 2016. Dr Baker also performed a work-site assessment of the defendant’s premises in September 2013.
66 In his first report, dated 15 August 2013, Dr Baker noted that the plaintiff complained of persisting lower back symptoms, although he further noted there was an absence of pathology. He considered she suffered minor discogenic changes in the lower back which were not sufficient to stop her working. He felt that she had the capacity to undertake her pre-injury duties.[54]
[54]DCB 32
67 Dr Baker then attended the defendant’s premises in September 2013, to consider a return to work plan for the plaintiff. He considered that it was reasonable for the plaintiff to return to her pre-injury duties, except for the lifting of film rolls weighing up to 15 kilograms. He noted that the proposed return to work plan comprised the following:
(1)paperwork and quality documentation;
(2)opening underweight packets of crackers and adding more crackers to bring the packet up to the standard weight;
(3)relieving on the production line to assist during absences for toilet or lunch breaks or involvement in meetings;
(4)roasting area, which involved spreading out crackers to ensure a single row of crackers prior to roasting.[55]
[55]DCB 35
68 Dr Baker considered it reasonable for the plaintiff to return to work, five hours per day, five days per week.
69 When the plaintiff was cross-examined as to the proposed duties outlined in Dr Baker’s return to work plan, she accepted that she would be able to perform duties one and two. She did not believe, however, that she would be able to relieve people on lunch breaks or at meetings, as the requirement to work on the production line for 30 minutes would involve her standing in the one spot for too long.[56] For the same reason the plaintiff did not believe she would be able to work in the roasting area.[57]
[56]T49, L17-20
[57]T49, L25-28
70 In his second report, dated April 2014, Dr Baker considered that the plaintiff suffered some minor discogenic changes which may be causing her symptoms. However, he felt the plaintiff’s presentation and degree of incapacity were out of proportion to the findings from her clinical and radiological assessments. He felt there was a significant non-physical component to her presentation.[58]
[58]DCB 44
71 In his third report, dated 27 July 2015, Dr Baker again considered that the plaintiff suffered some minor discogenic changes, but considered that she presented with a significant non-physical component which had developed into a chronic pain state.[59]
[59]DCB 52
72 In his fourth report, dated 25 May 2016, Dr Baker considered that the plaintiff initially suffered soft tissue injuries, originally and that she had now developed a chronic pain state in her lower back. He considered that the plaintiff had a limited work capacity, and that while she was incapable of undertaking her pre-injury employment, she was capable of undertaking restricted duties, where she had the ability to change her position and move about.[60]
[60]DCB 63
Credibility
73 I consider the plaintiff gave evidence in a simple, straightforward and believable manner. I consider she made appropriate concessions in relation to her capacity for work. The plaintiff also readily acknowledged her past psychiatric history of panic attacks.
74 The defendant relied upon video surveillance taken of the plaintiff on 13 and 17 July 2013.
75 On 13 July 2013 the plaintiff was filmed at a supermarket carrying two bags of groceries to her car. An employee of the supermarket assisted her by carrying a box of soft drink to her car. The plaintiff appeared to move freely. When the plaintiff arrived home, she took the box of soft drink, together with the groceries, in the one load, into her house.
76 The plaintiff said that she had asked the employee to help her carry soft drinks into her car as she needed help.[61] She said that when she was at home she carried it herself, as she had no one to help her. She said that she had just returned from a physiotherapy visit and that she was feeling better from such treatment.[62]
[61]T69, L9-12
[62]T41, L30-31; T42, L1-4
77 On 17 July 2013, the plaintiff was filmed attending her general practitioner. On this occasion she moved very slowly and appeared to have been in severe pain.
78 I consider the video surveillance consistent with the plaintiff’s evidence that her pain condition varies, and that she has good and bad days. Although it would have been better for her injury to unload the groceries from her car in several loads, I accept the plaintiff’s explanation that she was feeling better after physiotherapy, and that she felt able to carrying the groceries in one load.
79 The defendant admitted it had obtained additional video surveillance of the plaintiff which it did not rely upon.
Is the plaintiff suffering an organic injury?
80 The defendant challenged the plaintiff’s claim primarily on the basis that she suffers a non-organic injury and that in a claim made under sub-section (a), I should disregard the non-organic overlay or psychological contributions in assessing the consequences of her condition.
81 Mr Mighell submitted that the plaintiff suffered an injury to her lumbar spine involving injury to the discs and/or ligaments of the lumbar spine. He submitted that in those circumstances, it was not necessary for me to disentangle the physical contributions of her impairment, from the psychological contributions.
82 In the Court of Appeal decision in Meadows v Lichmore Pty Ltd,[63] Maxwell ACJ identified a two-step process for cases where a physical injury was present, as well as a pain syndrome.
“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.”[64]
[63][2013] VSCA 201
[64]At [21]
83 This is not a case in which the plaintiff’s pain is unexplained physically. I consider there to be a substantial body of medical material to support a finding that the plaintiff suffers discogenic lower back pain. Even if it is a soft tissue condition, as suggested by Dr Slesenger, Mr Dooley and Dr Baker, the absence of radiological evidence or a precise medical diagnosis should not be determinative of the plaintiff not suffering an organic injury.[65]
[65] Georgopoulos v Silaforts Painting Pty Ltd and Ors [2012] VSCA 179, [68-69] and Phillip Fokas v Staff Australia Pty Ltd [2013] VSCA 230
84 I note that Mr Jones considered the plaintiff’s symptoms somewhat exaggerated, yet in the same report described her as “genuine”.[66] Dr Verrills considered the plaintiff’s pain may not be neuropathic, yet he still considered she suffered internal disc derangement and discogenic pain.
[66]DCB 66
85 I was assisted by the viva voce evidence of Dr Thomas, and his explanation as to how the pain condition can develop following the onset of the physical injury.
86 I prefer the opinions of her treating practitioners Dr Andrianakis, Mr Aliashkevich and Dr Thomas, to that of Dr Baker and, to an extent, Mr Dooley. I also consider it relevant that the plaintiff had a strong employment history. I considered her a credible and reliable witness.
87 I am satisfied that there is a substantial organic basis to the plaintiff’s lower back injury. Therefore, I do not consider it necessary for me to engage in a disentangling process. In assessing her claim, I will disregard the psychological contributions suffered by the plaintiff.
Permanent
88 The plaintiff must prove that the injury and its consequences are both serious and permanent. It is to be considered a permanent injury if “it will probably persist and there will be no significant improvement over time”.[67]
[67]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [19]
89 I am satisfied that the consequences which flow from the plaintiff’s injury are permanent. The pain has persisted for over three years. There is no recommendation that she undergo surgery or any other type of treatment which may lead to an improvement. Her treatment regime has remained the same for the last few years and, even after the pain management course, her condition has not improved.
Loss of earning capacity
90To succeed in her application, the plaintiff has the onus of satisfying me that as at the date of hearing, as a consequence of her lower back injury, she has sustained a loss of earning capacity of 40 per cent or more and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
91The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[68]
[68]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
92In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning, in suitable employment, with her pre-injury earning capacity.
93It was accepted by the parties that the figure that most fairly reflects the plaintiff’s pre-injury earning capacity, was the amount she was earning at the time of the fall, that being $1,021 per week.[69] Therefore, the plaintiff must satisfy me that she is incapable of earning no more than $612.16 per week, and that such a restriction on her earning capacity will be permanent.
[69]Agreed in email correspondence after the hearing
94No doctor stated that the plaintiff can return to her pre-injury duties.
95 The defendant tendered two vocational assessment reports from Recovre, dated 24 May 2016 and 26 July 2016. In these reports, numerous vocational options were identified, based upon the plaintiff’s education, work history, transferable skills and the medical restrictions identified by numerous doctors. The jobs included:
·process worker;
·product examiner;
·sewing machinist;
·hand packer;
·dispatch clerk (entry level, with training); [70]
·stock clerk. [71]
[70]DCB 108
[71]DCB 140
96 The plaintiff’s solicitors informed her as to the contents of the initial Recovre report and the potential jobs identified for their suitability. The plaintiff was informed by her solicitors about the contents of the initial Recovre report, and the potential jobs it identified as suitable for her. In her affidavit sworn 21 July 2016, the plaintiff stated that she did not believe she would be able to work as a process worker. She noted that light factory work still required at least some bending, twisting and lifting, which she believed would aggravate her condition. Further, as she cannot sit and stand for extended periods, she felt the job would be unsuitable for her. For the same reasons, she felt she could not work as a product examiner, sewing machinist or hand packer.
97 In relation to working as a dispatch clerk, the plaintiff said she did not have requisite computer skills, and that her ability to read and write in English was not good. In addition, the plaintiff did not believe that she could do the work reliably, as she cannot sit and stand for prolonged periods, and needs to lie down for an extended period most days.[72]
[72]PCB 21-22
98 In relation to working as a quality tester, the plaintiff conceded that based upon the information contained in the Recovre report, she would be capable of at least attempting such work.[73]
[73]T62, L5-31; T63, L1-11
99 Dr Thomas confirmed that the plaintiff would have a working capacity to lift up to five kilograms between her waist and chest.[74] Dr Thomas also stated that the plaintiff would benefit from a semi-sedentary role, as she would need to be able to sit, stand and walk.[75]
[74]T89, L3-8
[75]T94, L1-4
100 In a Recovre Vocational Assessment Report dated 24 May 2016, it was suggested the plaintiff could work as a quality tester for a company that manufactures industrial meters. Dr Thomas considered that while this job looked fine on paper, there would be issues with the potential twisting involved. Dr Thomas provided an opinion that the meter reading job suggested looked fine on paper, however, there would be issues with the potential twisting involved.[76]
[76]T95, L18-23
101 Of her treating practitioners, only Dr Thomas commented on the Recovre reports. In his viva voce evidence, Dr Thomas accepted that the job of quality testing would be appropriate for the plaintiff, as it accommodated the following restrictions:
·working between waist and chest height;
·weight is no greater than 5 kilograms;
·no bending below waist height and lifting above shoulder height;
·flexibility in altering her position. [77]
[77]T89, L3-15
102 Dr Thomas considered this would be suitable employment for the plaintiff, provided the job was located close to her home and did not involve walking a long distance from the carpark.[78]
[78]T89, L16-22
103 Dr Tomas considered the plaintiff could cope with this role for four hours a day, three days a week, then increase to four hours a day, four days a week.[79] He stated that in his opinion, 16 hours per week was the maximum hours the plaintiff could do.[80]
[79]T9,5 L25-31; T96, L1-6
[80]T94, L13-15
104I note that Mr Jones does not comment on the plaintiff’s current work capacity. I note that Mr Dooley considered she was capable of light work, but did not state how many hours per week. Dr Baker also referred to a capacity for suitable light work, but did not expressly state how many hours a week the plaintiff could work.
105Numerous job options were detailed in the reports of Recovre. I accept the plaintiff’s evidence that most of those jobs are unsuitable, save for the position of quality tester in a manufacturing company. I note that her ability to undertake such work is supported by Dr Thomas, and is consistent with Dr Slesenger’s opinion as to her capacity for work.
106I accept that the most the plaintiff could work is 16 hours a week. I accept that her pain levels vary and that her sleep is interrupted. For these reasons, I consider it would be unrealistic to expect her to work more than 16 hours a week. I accept the evidence of Dr Thomas and Dr Slesenger that she would benefit from working two days and then having a day off, to enable her time to rest and recover.
107In reaching this conclusion, I have had regard only to the physical consequences of the plaintiff’s organic injury and have disregarded any psychological upset.
108The hourly rate for a quality tester in manufacturing is $22.74 plus penalties and shift loadings. Therefore, the plaintiff could earn $363.84, plus some additional income for these allowances. As this is well under the threshold of $612.16, I am satisfied the plaintiff suffers the requisite 40 percent loss of earning capacity.
109For the reasons outlined above, I am satisfied this loss will be permanent.
110Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[81] Given my acceptance that the plaintiff’s lower back injury restricts her to only part-time work, the pecuniary disadvantage to her is so great, that I consider her loss of earning capacity can be described as very considerable.
[81]s134AB(38)(c)
111As the plaintiff has satisfied me that she suffers a serious injury in respect of loss of earning capacity arising from her spine, it is not necessary for me to consider separately her pain and suffering consequences for that injury.[82]
[82]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
Orders
112I am satisfied that the plaintiff suffers a serious injury to her spine arising as a consequence of her employment with the defendant, and the consequences are such that she should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
113I will make the consequent orders.
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