Pina, Cipriana v Southport Engineering Pty Ltd
[2009] VCC 1471
•25 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-04322
| CIPRIANA PINA | Plaintiff |
| v | |
| SOUTHPORT ENGINEERING PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 & 18 August 2009 |
| DATE OF JUDGMENT: | 25 August 2009 |
| CASE MAY BE CITED AS: | Pina, Cipriana v Southport Engineering Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1471 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – the plaintiff had a previously symptomatic lower back - whether the aggravation of her symptomatic lower back met the statutory test for pain and suffering and loss of earning capacity – whether the plaintiff had undertaken any rehabilitation and retraining – whether the plaintiff had discharged the onus she bears under subsection (19)(b) and (38)(g) – leave granted for pain and suffering and loss of earning capacity: section 134AB (19)(b), (38)(c) and (g)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with | Patrick Robinson & Co |
| Mr J Gorton | ||
| For the Defendant | Mr J Middleton | Wisewoulds |
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 29 May 2007 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr G Lewis SC appeared with Mr J Gorton of Counsel for the plaintiff and Mr J Middleton of Counsel appeared for the defendant.
4 The following evidence was adduced during the hearing:
• the plaintiff gave evidence and was cross-examined. • The plaintiff tendered the following evidence:
ƒ a letter of CGU dated 11 December 2003 to the plaintiff: Exhibit A ƒ medical examination, that of Dr Nash, general practitioner, dated
22 September 1999: Exhibit Bƒ the Plaintiff’s Court Book (“PCB”) pages 10-23 and 28-98: Exhibit C ƒ from the Defendant’s Court Book (“DCB”) pages 16; 53-55 and 59
and 72: Exhibit Dƒ letter of instruction to Mr Nye, neurosurgeon, dated 29 May 2009:
Exhibit E.
• The defendant tendered the following evidence:
ƒ the Defendant’s Court Book pages 1-50 and 61-86: Exhibit 1 ƒ letter of Mr Razif to Dr Vallipuram, physician, dated 7 April 2003:
Exhibit 2ƒ extract of the clinical notes of Mr Razif: Exhibit 3 ƒ clinical notes of the Stud Road Medical Clinic: Exhibit 4 ƒ report of Mr Nye dated 18 August 2009: Exhibit 5 ƒ two letters of instruction to Mr Barrett, orthopaedic surgeon, dated
12 August 2009: Exhibit 6.
The Statutory Scheme
5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
6 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and, in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
(l)
I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158 per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833 per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527 per Judge Ross.
[4] (1994) 1 VR 436
The Plaintiff’s Background
7 The plaintiff was born on 11 March 1962 in East Timor. She is now forty- seven years of age. She left school at thirteen or fourteen years of age in about 1975 when East Timor was invaded by Indonesia.
8 The plaintiff migrated to Portugal from East Timor in 1986. She obtained employment in Portugal in a restaurant and in factories. She migrated to Australia in 1996.
The Plaintiff’s Prior Lower Back Injury
9 The plaintiff’s first job in Australia was with a firm known as Lukas Fencing. She was employed as a machine operator between April and July 1997. She ceased that employment because there was insufficient employment for her to be kept on. The plaintiff was then employed with Coating Services Australia, commencing in 1997.
10 On 9 October 1997, the plaintiff suffered a fall, resulting in her suffering a number of injuries, including an injury to her lower back.[5]
[5] PCB 11 and 19-20
11 The plaintiff saw Dr Hoegerl, general practitioner, on 13 October 1997, complaining of having hit her head, back and right elbow on the ground as a result of a fall at work. Before seeing Dr Hoegerl, the plaintiff attended the Emergency Department of the Dandenong Hospital on 8 October 1997. She was off work for two days, before returning to work on 10 October 1997.
12 On examination, Dr Hoegerl found the plaintiff to have a full range of movement. He noted that her movements were slow and painful and she was especially tender over the L2-L5. He diagnosed a soft-tissue injury and prescribed the plaintiff analgesics and anti-inflammatory medication. He also provided her with a WorkCover Certificate.
13 Dr Hoegerl reviewed the plaintiff. He referred her to have x-rays of her lower back.[6] He advised her to continue taking medication. He referred her for physiotherapy to commence in late November 1997.
[6] PCB 87
14 In his report dated 6 September 1999, Dr Hoegerl said the following:
“... I can only assume that she recovered to such an extent that she was able to return to employment without any problems as she did not return for further consultations regarding this incident. In fact, Ms Pina did not attend this Clinic again until 11 December, 1998, after her involvement in another workplace injury. At no time did she refer to her previous injuries or make mention of any ongoing problems relating to the former incident ...” [7]
[7] PCB 28-29
15 The plaintiff had an x-ray taken of her lower back on 16 August 1996 on referral by Dr Grosman.[8] The plaintiff was unable to recall why she was referred to have an x-ray on that occasion.
[8] PCB 85
16 The plaintiff suffered other injuries in 1998 for which she sought and obtained medical treatment. None of those injuries are of any consequence in the context of this application.[9]
[9] PCB 11
17 Mr Middleton cross-examined the plaintiff regarding her previous lower-back problems. The plaintiff admitted that she continued to suffer from some symptoms of a lower-back problem at the time when she commenced employment with the defendant.
18 Mr Middleton read a number of passages from the history taken by Dr Nathar, psychiatrist, during a medico-legal examination he conducted on the plaintiff on 26 May 2009. The particular passage which Mr Middleton later submitted was consistent with the plaintiff having continuing symptoms of a lower-back problem was as follows:
“She was receiving Centrelink benefits for a while and she thought that Centrelink forced her to look for employment notwithstanding unresolved back pain ...”
19 The plaintiff admitted the truth of what Dr Nathar recorded. She was then asked whether her lower back was still giving her some trouble from time to time, and she answered:
“There was just a little bit, not as bad as it’s now that it’s much, much
worse ... .[10]
[10] Transcript 65. The question was asked in the context of when the plaintiff commenced employment with the defendant
20 The plaintiff was referred to a pre-employment medical examination conducted by Dr Nash, general practitioner. A single-page record of a medical examination conducted by Dr Nash dated 22 September 1999 contains the results of his examination of the plaintiff. One reference is to the thoracolumbar spine, and beside it are the words “Yes/No”. Dr Nash circled “Yes”, signifying that the plaintiff’s thoracolumbar movements were normal.
21 Of the medical practitioners who conducted medico-legal examinations of the plaintiff, three were provided with a reasonable history is of the plaintiff’s prior lower-back problem. Mr Brearley and Mr Barrett, orthopaedic surgeons, were given a history by the plaintiff of suffering injury to her lower back in 1997. Mr Brearley was provided with a copy of the medical report of Dr Hoegerl dated 6 September 1999, so he was aware of the nature and extent of the plaintiff’s prior lower-back problems.[11] Mr Barrett was provided with a copy of the x-ray taken on 8 November 1997.[12]
[11] Mr Brearley referred to Dr Hoegerl’s report in the body of his own report dated 25 June 2009 at PCB 48-53
[12] Exhibit 6
22 The plaintiff did not inform either Mr Brearley or Mr Barrett that she continued to suffer symptoms of a lower-back problem at the time when she commenced employment with the defendant. However, and on the assumption that Mr Brearley read the report of Dr Hoegerl, he would have understood that when the plaintiff left the care of Dr Hoegerl, that Dr Hoegerl assumed that the plaintiff had recovered from her previous injury, and not that she had in fact recovered from it. I assume that Mr Barrett would have deduced from the x-ray taken on 8 November 1997 that the plaintiff had suffered a previous lower-back problem.
23 Mr Nye, neurosurgeon, was in a very similar position to both Mr Brearley and Mr Barrett. He was provided with a copy of Dr Hoegerl’s medical report dated 6 September 1999.
24 It is obvious that Mr Brearley and Mr Nye were in a better position to make a judgment about the plaintiff’s prior lower-back problem than Mr Barrett. Neither seems to have been particularly troubled by the fact that the plaintiff had continuing lower-back problems of the kind described by Dr Hoegerl.
25 The plaintiff said that after suffering the injury on 9 October 1997 she was on restricted duties until November 1997, when she returned to normal duties.
26 It is clear enough from the foregoing that the plaintiff suffered an injury to her lower back on 9 October 1997. She required treatment by way of prescription of medication and physiotherapy. By 11 December 1998, when she last saw Dr Hoegerl, she made no complaint of any ongoing lower-back problem.
27 The medical examination conducted by Dr Nash reveals no abnormality in the plaintiff’s lower back, and indeed described her as being fit for employment. The description given by the plaintiff that her lower-back injury had resolved, and that she was experiencing a little bit of trouble with her lower back from time to time, must be measured against the fact that the plaintiff was then employed by the defendant in what appears to me to be manual employment requiring lifting long lengths of pipe and bending and lifting shorter lengths of pipe.[13]
[13] The lengths of pipe are illustrated in two photographs at DCB 16
28 The plaintiff was able to undertake that employment until March 2000 when she met with increasing levels of lower-back pain which resulted in her suffering the injury on which this application is based.
29 Against that, Mr Middleton submitted that the plaintiff said that Centrelink forced her to work when she could not work. However, the answer the plaintiff gave in that connection did not impress me as the plaintiff saying that she could not work because of a lower-back problem, but because of the fact that she had suffered a number of injuries previously. Indeed, in the context of being forced by Centrelink to look for a job, she said the following:
“Yes, the reason it came from the Centrelink forcing me, they knew about my injuries, that I hurt my head so many times, that I didn’t fall once but twice.”
30 In any event, Mr Middleton conceded that the plaintiff suffered an injury in March 2000. He ultimately submitted that, for a number of reasons, I could not be satisfied of what consequences flowed from the impairment of function of the plaintiff’s lower back said to be causally connected to the injury which occurred in March 2000.
31 I consider that the conclusion that the plaintiff suffered a lower-back problem prior to commencing employment with the defendant is inescapable. However, the fact that the plaintiff underwent a pre-employment medical examination which cleared her of any spinal abnormality, together with the fact that she was able to undertake moderate manual employment with the defendant, has led me to conclude that whatever the degree of the symptoms the plaintiff was experiencing before she commenced employment with the defendant, they were relatively modest.
The Plaintiff’s Injury
32 In her second affidavit, sworn 12 August 2009, the plaintiff described the employment she was required to undertake which she says caused the injury to her lower back. The particular employment which the plaintiff says caused her lower-back injury was as follows:
•
The plaintiff operated an automatic machine into which pipes were fed via rollers. When the automatic machine broke down, the plaintiff had to feed the pipes into a manual machine by hand. She had to unpack a pallet by hand and lift each individual pipe into the manual machine and feed it into the machine to be cut.
•
After the pipe was cut she would carry the cut pieces to a co-worker who was some 10 metres away.
•
When operating the automatic machine, the plaintiff was involved in lifting, bending and twisting. When operating the manual machine, she was involved in a lot more lifting and bending because she had to pick pipes up from ground level.[14]
[14] PCB 18
33 In her first affidavit, sworn 19 June 2007, the plaintiff said that as she was lifting a heavy metal pipe with a co-worker she felt pain and pressure in her lower back.[15] In her second affidavit, she made no reference to that particular incident; however, she said that while working on the manual machine she noticed the onset of significant lower back and leg pain on 7 March 2000.[16]
[15] PCB 11
[16] PCB 18
34 Mr Middleton submitted that the two versions were irreconcilable; however, I do not accept that what the plaintiff said in her first affidavit and her second affidavit is significantly different. The first description is rather brief, with the second being longer and more detailed, but both describing the same work which the plaintiff implicates in the causation of the injury.
35 Mr Middleton also submitted that there was doubt as to whether the work was as heavy as the plaintiff said it was. It was my impression that the work did involve lifting pipes of significant length and did involve bending and twisting. Given the concession that the plaintiff did suffer an injury as a result of her employment in March 2000, it seems to me that I do not need to make any finding whether the work was as heavy as the plaintiff says it was, because the concession amounts to an admission that the plaintiff suffered a compensable injury, which is all I need to be satisfied about as the first step in determining whether the plaintiff meets the statutory test for serious injury.
The Medical Evidence
36 The plaintiff saw Dr Barua, general practitioner, on 16 March 2000. Dr Barua took a history from the plaintiff that she had injured her lower back lifting a heavy object.
37 Dr Barua referred the plaintiff to have a CT scan which was taken on 17 March 2000,[17] and subsequently an MRI scan which was taken on 5 July 2000.[18] He referred the plaintiff to Mr Razif and also to Mr Pullar, neurosurgeon.
[17] PCB 91
[18] PCB 92
38 On the basis of the MRI scan, and the assistance he obtained from the opinions of Mr Razif and Mr Pullar, it would appear that Dr Barua formed the opinion that the plaintiff had suffered a disc bulge and an annular tear at L4-5. He noted that the plaintiff was using a brace, using analgesics, and was experiencing severe pain on walking and exertion. It would appear that he did not see the plaintiff again after late 2003. When Dr Barua last saw the plaintiff he was of the opinion that the plaintiff would not be able to resume her pre- injury employment.[19]
[19] PCB 33-34
39 Dr Nappally, general practitioner, a colleague of Dr Barua, took over the treatment of the plaintiff towards the end of 2003. His opinions on the cause and chronicity of the plaintiff’s lower-back symptoms, and the level of her disability, were consistent with that of Dr Barua. Dr Nappally appears to have accepted the plaintiff’s complaints that she was in pain all the time and that she was severely disabled.[20]
[20] PCB 41a
40 The evidence of Dr Barua and Dr Nappally is of critical importance in determining what injury the plaintiff suffered in March 2000 for the purpose of identifying the injury, the body function impaired by the injury, and the consequences which required medical treatment. From their opinions, it occurs to me that it is fairly clear that the nature of the work which the plaintiff was required to perform in March 2000 probably caused an aggravation of pre-existing degenerative changes in addition to discal injury at L4-5.
41 The balance of the medical opinions, which I consider to be compelling, support the conclusion that the plaintiff did suffer an aggravation of pre- existing degenerative changes in her lower back and probably a discal injury.
42 Mr Razif commenced treating the plaintiff in about March 2002. He reviewed the CT scan and an MRI scan arranged by Dr Barua. He appears to have accepted the findings of the radiologist who performed the MRI scan. In his medical report dated 15 September 2003, he described his inspection of the MRI scan as revealing abnormalities at L2-3, L3-4, and L5-S1 disc levels, with some disruption and a disc bulge at L5-S1, resulting in annular disruption of the left L4 nerve roots within the exit foramen.
43 It would appear that on the basis of his view of what was shown on the MRI scan, Mr Razif was of the opinion that there was possible compression of the L4 nerve root for which an epidural injection might alleviate the plaintiff’s symptoms. The epidural injection was performed on 12 July 2002. On review by Mr Razif, the plaintiff informed him that the injection had not resolved the pain. He advised her to continue with physiotherapy.
44 Mr Razif subsequently reviewed the plaintiff on 26 August 2002; 16 October 2002; 20 March 2003; 22 September 2008; 6 October 2008; 21 November 2008 and 16 March 2009. Mr Razif noted that by 20 March 2003, the plaintiff was complaining to him of persisting lower-back pain with pain radiating into both thighs down to her knees. On 26 August 2002, he noted, in what he described as a clinical observation, that the plaintiff had a slight limp. The plaintiff complained to him of persisting left-leg pain at that time. It would appear that it was following the review on 26 August 2002 that Mr Razif prescribed a back brace for the plaintiff in the hope that it would help her control her persisting lower-back pain.[21]
[21] The history of Mr Razif’s treatment of the plaintiff is principally found in his reports dated 15 September 2003 and 14 August 2009, at PCB 45-47c
45 When Mr Razif reviewed the plaintiff in 2008 and 2009, the plaintiff made similar complaints to him of pain in her lower back and pain in her left leg going down as far as her knee. He referred her to have a plain x-ray which was taken on 22 September 2008;[22] a CT scan taken on 10 November 2008,[23] and an MRI scan taken on 14 April 2009.[24]
[22] PCB 95
[23] PCB 96
[24] PCB 98
46 On the basis of his clinical examinations and the more recent radiological investigations, Mr Razif was of the opinion that it was likely that the plaintiff’s work in March 2007 contributed to her underlying lower-back problem by aggravating underlying pre-existing multilevel disc degeneration. He noted that despite time and conservative treatment, her lower-back condition had not improved, and in fact had worsened. He did not consider that there was anything shown on the radiological investigations which pointed to a likelihood of continued worsening of her lower-back injury.
47 Mr Razif was of the opinion that the plaintiff required continuing ongoing conservative treatment to achieve stability of her chronic lower-back problem to enable her to return to normal daily activities. He was the opinion that her prognosis was not good, and that overall it was unlikely that the plaintiff would be usefully employed. He considered that she should be put on a disability pension permanently.[25]
[25] PCB 47b-47c
48 Mr Middleton cross-examined Mr Razif at some length, challenging the basis for his opinions. It was not my impression that Mr Razif’s opinion changed from that stated in his reports.[26]
[26] Transcript 35, 36, 48-49 and 56
49 Mr Middleton cross-examined Mr Razif on an event which occurred in about July 2008 when the plaintiff was ascending from a toilet seat to be met with severe lower-back pain. She was taken by relatives to the emergency department of the Dandenong hospital. The plaintiff saw Dr Nappally, who subsequently referred her back to Mr Razif.[27]
[27] PCB 20 and the report of Dr Nappally dated 12 August 2009, at PCB 41a, where he refers to that event and the subsequent referral to Mr Razif
50 Mr Middleton submitted that the event could just as easily have arisen in the background of the plaintiff’s pre-existing degenerative changes in her lower back, given her history of symptoms of lower-back pain prior to commencing employment with the defendant, as it could be related to the aggravation of the pre-existing degenerative changes in her lower back. However, Mr Razif was not persuaded that the event could be disconnected from the aggravation of her pre-existing degenerative changes resulting from her work. He said that if the plaintiff had not suffered the exacerbation[28] it was less likely that she would suffer recurring spasm, which he considered to be what occurred at the time of the occurrence of that event.[29]
[28] Mr Razif’s use of the word ‘exacerbation’ was used as a synonym for ‘aggravation’, given his use of the word ‘aggravation’ elsewhere in his evidence
[29] Transcript 56
51 Other medical practitioners disagreed with Mr Razif, concluding that the plaintiff had suffered discal injury and not merely an aggravation of pre-existing degenerative changes.
52 Mr Doig examined the plaintiff for the defendant on 15 September 2004. He was of the opinion that the plaintiff suffered a prolapsed disc at L4-5 which affected the left L4 nerve root resulting in left-sided sciatica.[30]
[30] DCB 27
53 Mr Nye, neurosurgeon, examined the plaintiff for the defendant on 1 June 2009. He was of the opinion that the plaintiff had significant two-level degenerative changes in her lumbar spine comprising an L2-3 disc protrusion and an annular tear at L5-S1 which he considered to be the cause of the plaintiff’s pain. He was of the opinion that the plaintiff’s employment had aggravated those degenerative changes, that the plaintiff had a partial incapacity for employment, and that restrictions on repeated bending and twisting of the spine and prolonged periods of standing and sitting and lifting more than 5 kilograms would be appropriate. He considered that she would be fit for employment as a store person/order clerk, packer and product assembler.[31]
[31] DCB 30-32. Mr Nye’s opinion on the plaintiff’s fitness for employment was based upon material he was given describing various jobs, at DCB 33-46
54 Mr Brearley, orthopaedic surgeon, examined the plaintiff on 25 June 2009. He was of the opinion that the plaintiff had suffered a mechanical lower-back pain secondary to generalised degenerative disc changes with disruption at the L4-5 and L5-S1 discs resulting in left L5 radiculopathy. He was of the opinion that the plaintiff could not undertake her pre-injury work or any other work. He did not consider that she had any likelihood of improvement in her condition in the foreseeable future.[32]
[32] PCB 52-53
55 Dr Nappally referred the plaintiff to Mr Barrett, who examined her on 13 August 2009. He was of the opinion that the plaintiff had suffered disruption and desiccation of her lower four lumbar intervertebral discs. He was also of the opinion that she was unfit to undertake any form of employment and that her prognosis was very poor.[33]
[33] PCB 47g
56 The report of Mr Barrett was served on the defendant at a time which deprived the defendant of the opportunity to expose Mr Barrett’s opinion to Mr Nye. I gave the plaintiff leave to rely upon the report of Mr Barrett, but reserved the defendant’s position to file a further report of Mr Nye commenting on Mr Barrett’s opinion.
57 Mr Nye provided a further report. It is fair to say that he did not agree with the opinion of Mr Barrett. He was of the opinion that the radiological investigations did not support Mr Barrett’s opinion on the extent of disruption and desiccation of the plaintiff’s lower four lumbar intervertebral discs.[34]
[34] Exhibit 5
58 The foregoing analysis of the medical evidence has led me to conclude that whilst the plaintiff may have experienced symptoms of a pre-existing lower- back problem, she did not have a problem of any great significance, and certainly not one that was productive of any real incapacity for work at the time when she commenced employment with the defendant.
59 It is very clear from the opinions of Dr Barua, and later of Dr Nappally, that the plaintiff saw Dr Barua contemporaneously with the onset of the lower-back injury. Dr Barua obviously considered the complaints made by the plaintiff to be serious enough to require referral for a CT scan and then an MRI scan, prescription of analgesic and anti-inflammatory medication, and referral to Mr Razif for specialist treatment. It is also very clear that when Mr Razif treated the plaintiff she was suffering from an actively symptomatic lower-back injury with leg symptoms.
60 On the basis of the opinions of Dr Barua, Dr Nappally and Mr Razif, I do not have any hesitation in finding that the plaintiff suffered a significant aggravation of pre-existing degenerative changes in her lower back as a result of her employment in March 2000.
61 I am fortified in reaching that conclusion by the opinions of Mr Doig, Mr Brearley, Mr Nye and Mr Barrett. Except for Mr Doig, they were given a history of the plaintiff’s prior lower-back problems, and they also had all of the radiological investigations, which put them in a very good position to comment on whether the work the plaintiff did in March 2000 caused an injury to her lower back. It is clear that they were all of the opinion that it did.
62 It is clear that each of Mr Brearley, Mr Nye and Mr Barrett have expressed different opinions regarding the nature of the injury which the plaintiff suffered to her lower back. Mr Lewis submitted that a trial judge hearing a serious injury application is not required to determine the precise nature of the pathology said to represent the injury. I accept that submission. I consider that what I am required to do is determine whether the plaintiff suffered a compensable injury.
63 I find that the plaintiff suffered an aggravation of pre-existing degenerative changes in her lower back and probably a disc injury at L4-5 which probably caused some interference with the L5 nerve at some stage. In arriving at that finding I accept the opinions of Dr Barua, Dr Nappally, Mr Razif, Mr Doig, Mr Brearley and Mr Nye. I consider that the opinion expressed by Mr Barrett is useful in so far as it confirms that the plaintiff suffered a disc injury; however, I do not accept his opinion as to the gravity and widespread nature of the disc injuries which he says the plaintiff suffered.
64 I do not accept the opinions of Mr Williams, orthopaedic surgeon;[35] Mr Klug, neurosurgeon;[36] Dr Davison, occupational physician;[37] or Dr Rowe, occupational physician.[38] Each of them examined the plaintiff well before all of the radiological investigations had been undertaken which Mr Razif, Mr Brearley, Mr Nye and Mr Barrett had available for their inspection and use. I do not consider that their opinions carry very much weight in the circumstances, because it seems to me that the radiological investigations occupied a position of significance in the course of the analysis undertaken by Dr Barua, Dr Nappally, Mr Razif, Mr Brearley, Mr Nye and Mr Barrett in the formulation of their opinions.
[35] DCB 1-5
[36] DCB 6-9
[37] DCB 10-19
[38] DCB 23-25
Serious Injury
Pain and Suffering
65 The plaintiff is now forty-seven years of age. She is a relatively young woman who has suffered a significant injury to her lower back which has been the cause of persistent lower back and left leg pain since March 2000.
66 The medical evidence I have accepted impresses me that the injury to the plaintiff’s lower back has precluded the plaintiff from being able to return to her pre-injury employment and has significantly impaired her capacity to undertake alternative or suitable employment.
67 Furthermore, I accept the plaintiff’s evidence in her affidavits that she has persistent pain in her lower back which fluctuates in severity. It interferes with her capacity to engage in physical activities such as prolonged sitting, standing and walking. She has pain which radiates down into her left leg at the front of her thigh and sometimes down the back of her thigh. The pain in her left leg sometimes goes down into her calf and down into her ankle. Her sleep is interrupted by pain.
68 I accept the plaintiff’s evidence that she has difficulty driving a car. She is unable to drive on long trips on weekends to places like Phillip Island. She is unable to do shopping as she would like, leaving that to her niece. She is unable to do all of her housework. She is able to do some cooking. She requires assistance in looking after her home. She is unable to do much gardening or go out with her Timorese countrymen on social outings.[39]
[39] PCB 13-14 and 21
69 The plaintiff has now suffered pain in her lower back and pain in her left leg for about nine and a half years. There is no sign, according to the medical evidence, that the plaintiff will obtain any relief from that pain in the future. The evidence clearly shows that the plaintiff is not a surgical candidate, and that there is no other treatment available for her, save for symptomatic treatment by way of medication and physiotherapy from time to time.
70 Nearly every aspect of the plaintiff’s social, domestic and recreational life has been impacted upon by the injury to her lower back. She is now left in the situation where she is very likely to endure the same level of pain indefinitely and will suffer a significant degree of disablement indefinitely.
71 Therefore, I find that the plaintiff suffered an injury to her lower back, which I have referred to above, and that it has resulted in a permanent impairment of the function of the plaintiff’s lower back and left leg and has consequences for her in terms of pain and suffering which I consider deserve the description of at least very considerable. I have reached the foregoing conclusion after making the relevant comparison with other cases in the range of possible impairments or losses of a body function.
Loss of Earning Capacity
72 Mr Middleton submitted that the plaintiff has not established her claim for loss of earning capacity, firstly, because if the plaintiff had not been terminated by the defendant in July 2001 she would have continued working, and therefore cannot substantiate a loss of earning capacity claim, and secondly, the plaintiff has not discharged the onus she bears under subsection (19)(b) and (38)(g) to prove the relevant degree of loss of earning capacity required to satisfy the statutory test.
73 In the course of cross-examining the plaintiff Mr Middleton questioned the plaintiff about the work she was doing prior to the defendant terminating her. She said that if the defendant had not terminated her employment she would have undertaken more work with the defendant. Mr Middleton submitted that the plaintiff was, in effect, admitting that she had a significant capacity for employment at that time. The plaintiff was working full-time on modified duties at the date her employment was terminated by the defendant.
74 Furthermore, Mr Middleton submitted that the plaintiff has not undertaken any rehabilitation or retraining consistent with the onus she bears under subsection (38)(g) to determine what capacity for employment she has which she can exercise.
75 Mr Lewis referred me to the opinions of Dr Nappally,[40] Mr Razif,[41] Mr Brearley[42] and Mr Barrett[43] that the plaintiff is disabled and is unfit for any work. Mr Lewis also referred me to what he described as the realistic opinion of Mr Razif, who essentially said that because of the plaintiff’s chronic lower- back problem, lack of education, lack of command of the English language and lack of training, it was the stuff of fairyland to consider that the plaintiff could work, and he added that she would never work again.[44]
[40] PCB 41a
[41] PCB 47c and transcript 40-41
[42] PCB 53
[43] PCB 40g
[44] Transcript 40-41
76 Mr Nye was of the opinion that the plaintiff could undertake light-duties work as a store person/order clerk, packer or product assembler; however, the job descriptions to which he referred in expressing that opinion did not say that any of the jobs were light-duties jobs. On my reading of the job descriptions they appear to be full-time jobs without the imposition of the work restrictions which Mr Nye said would need to be imposed upon the plaintiff.
77 I am not persuaded by the first submission made by Mr Middleton that the evidence given by the plaintiff that she would have continued working with the defendant on light duties is the end of the matter, because, firstly, the plaintiff was on light duties, which was obviously unsatisfactory from the defendant’s point of view, hence the reason why it terminated her employment, and, secondly, subsection (38)(j) requires me to determine the question of serious injury at the time the application is heard.
78 The opinions of the medical practitioners whose evidence I have just referred to is relatively current. Essentially their evidence is that the plaintiff is unfit for her pre-injury employment, and, save for Mr Nye, they are of the opinion that she is unfit for all work.
79 I find that the plaintiff is unfit for all work by reason of the nature and extent of her injury and the impairment that it causes, and furthermore, I find that she is not fit for suitable employment as defined by section 5(1).
80 I consider that the opinion of Mr Razif rings true, that the plaintiff has a chronic lower-back injury which is incapacitating, and, given her age, education, training, and facility with English language, she has little or no prospect of being able to find work other than in a factory where her education, training and lack of facility with English would probably work against her as her work history shows.
81 Therefore, I find that the plaintiff is not fit for her pre-injury employment nor fit for alternative or suitable employment. I find her level of incapacity in that regard to be permanent, and I consider her loss of earning capacity consequent upon the loss of capacity to deserve the description at least very considerable. I have reached the foregoing conclusion after making the relevant comparison with other cases in the range of possible impairments or losses of a body function.
Conclusion
82 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
83 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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