Portingale v Victorian WorkCover Authority

[2017] VCC 1742

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-02216

DONNA PORTINGALE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 3 August 2017
DATE OF JUDGMENT:	6 September 2017
CASE MAY BE CITED AS:	Portingale v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2017] VCC 1742

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – causation- lumbar spine – pain and suffering – loss of earning capacity – permanency

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38); Accident Compensation and Transport Accident Acts (Amendment) Act (No 95) 2003, s3

Cases CitedBarwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Popovski v Ericsson Australia Pty Ltd [1998] VSC 61; Allman v Major Furnace & Engineering Pty Ltd [1997] VCC 10; Martin v Bailey (2009) 26 VR 270; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170

Judgment:                Leave granted to bring proceedings for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Walsh with Mr G Taylor	Hounslow Lawyers Pty Ltd
For the Defendant	Mr R H Stanley	Lander & Rogers

HER 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 suffered by the plaintiff during the course of her employment with labour hire firm, Credo Group Pty Ltd (“the employer”), on 3 September 2011 (“the said period”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and also loss of earning capacity.

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 injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The relevant body function is the lumbar spine.

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

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 s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.

8 By s134AB(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, [can be] fairly described, 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, mental or behavioural disturbances or disorders.

10      In this application where there is a claim for loss of earning capacity, that loss 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[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

15      The plaintiff relied upon three affidavits and gave viva voce evidence.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

16      While the defendant conceded there was an incident on the said date, compensability was denied. Further, it was disputed the plaintiff currently suffers from any work-related back condition, any aggravation having ceased and/or other supervening events being a cause of her current incapacity.[3]

[3]Transcript (“T”) 22

The Plaintiff’s evidence

17      The plaintiff is fifty one, having been born in August 1966.  She lives with her husband and various other family members in a household of six adults and seven very young children.

18      The plaintiff left school after completing Year 10 in 1980.  She then performed a variety of jobs including factory work, retail and basic unskilled work.

19      The plaintiff completed a six-month secretarial course and then worked for Ultra Tune for about six years in the late 1990s.  In that role, she did a variety of secretarial and clerical duties “to a degree”.  She was helping her husband with paperwork at his store, and doing some work for the Ultra Tune head office.[4]

[4]T70

20      The plaintiff deposed that she had experienced back problems on and off over the years for which she had had treatment.   She could specifically recall injuring her lower back while working at Bunnings in 2009.  However, her pain resolved quickly and she lost only a few days off work (“the Bunnings incident”).

21      In about June 2011, the plaintiff injured her back while bending over at home (“the computer incident”).  She had a short period off work but was able to resume normal work duties in July 2011.  On 23 June 2011, lumbar and cervical x-rays were performed which the plaintiff was advised revealed some minor problems in her spine.

22      The plaintiff also experienced unrelated medical conditions over the years, including depression.  This condition was successfully treated with medication and she had not experienced any lasting problem.

23      In her second affidavit, the plaintiff gave further detail of her previous back condition.  In about June 2006, she attended her general practitioner at Access Medical Group complaining of having injured her back at work (“the Aldi injury”).

24      Records of that clinic indicate a lumbar x-ray carried out at that time was normal. The plaintiff’s WorkCover claim was accepted by Aldi and she received weekly payments for a short time.  She returned to work on light duties and subsequently resumed full-time employment.

25      Cross-examination largely focused on the condition of the plaintiff’s lumber spine prior to the incident.

26      The Aldi injury occurred whilst the plaintiff was lifting heavy bottles of oil.  Back pain then ran down the left side of her buttock.  She put in a WorkCover Claim as she needed to take time off work because of back and left sciatic problems.[5]

[5]T27

27      The plaintiff agreed, at that time, the pain was fairly severe.  As her doctor noted, the plaintiff was tender over the L5-S1 joint.  She believed Panadeine Forte was prescribed.  She agreed it was a pretty nasty injury but she did not really remember a lot from back then.[6]

[6]T28

28      The Bunnings injury occurred whilst the plaintiff was moving some tiles from one pallet to another.[7]  She did not think she saw a chiropractor and believed she returned to work at Bunnings thereafter.  At times on her return to work, she wore a back brace.[8] 

[7]T30

[8]T100

29      The plaintiff agreed, as Dr Sheehan noted following an examination in 2013, that at the time of the Bunnings incident, there was a lot going on in the plaintiff’s personal life.  There were a lot of issues relating to her daughter, leading the plaintiff to stop this job.  She saw a chiropractor, Dr Elsner, had some time off work and her back condition improved.  The plaintiff did not believe the injury at Bunnings also caused left buttock pain.[9]  She did not think she put in a claim in relation to this incident.[10]

[9]T34

[10]T32

30      Between leaving Bunnings and starting to work for the employer at Ikea, the family issues which Dr Sheehan had noted were not as prominent.  There was not really anything going on at that particular time.[11]

[11]T33

31      The plaintiff attended Dr Elsner two days after the computer incident.  She then told him the injury occurred when she was gradually leaning forward, pointing her finger, and she experienced pain in her left lower back.[12]  She also told him she had numbness running down the left buttock to the back of the left thigh.  She rated the pain at 9 out of 10.  She was unable to do normal duties of standing and walking. She told Dr Elsner a similar thing happened whilst working at Aldi.  She saw him four times after the computer incident.[13]

[12]T28

[13]T29

32      The plaintiff agreed that the computer incident was as innocuous and simple as just gradually leaning forward to point her finger.  She agreed she was struck with horrible pain, as Dr Elsner noted.[14] 

[14]T34

33      The plaintiff confirmed that she had completed a health questionnaire at the attendance with Dr Elsner on 23 June 2013 in which she described being in pain since having pinched a nerve in her left side.  She “circled” that the problem was getting worse and that it kept her from working, sleeping and her daily routine, and her level of pain was 9 out of 10.[15] 

[15]T36

34      The plaintiff agreed she had had intermittent problems with her back since 2006.  She denied ongoing problems with her back after the computer incident, because if she had been having more issues, she would have continued seeing the chiropractor.[16]

[16]T43

35      The plaintiff confirmed she tried to give the best answers from her memory when asked by doctors about her previous back history.[17]  She could not remember if she told Mr Dunin that the computer incident was not associated with any referred pain to the leg.[18]  She gets confused with all the dates due to the tablets she takes.[19]

[17]T81

[18]T82

[19]T33

36      The plaintiff confirmed she told Dr MacBeth her pain resolved fully after a few days after the computer incident and that it was not associated with any radiation of pain into the lower limbs into her legs.  She probably forgot the pain went down her leg.  It was years ago and she does not have a great memory.[20]  However, she would not forget if she had pain up until the said date.  She did not think she would forget that she did not have any pain whatsoever.[21]

[20]T82

[21]T83

37      The plaintiff was asked about the history taken by Mr Dooley which had no mention of the Aldi, Bunnings or computer incidents.  Quite possibly she did not tell him about these matters, but she found it strange she would not have mentioned them at all because she mentioned them every other time and there was no reason she would not tell Mr Dooley.[22]

[22]T84

38      The plaintiff believed Mr Dooley had paperwork in front of him when he examined her.  She was sure they had discussed something about past problems with her back.[23]

[23]T110

The Ikea job

39      After the computer incident, the plaintiff went back to work at Bunnings and then had six weeks or so off before starting at Ikea on 17 August 2013.[24]  This Ikea job was to finish at some point in December that year and it was supposed to be light work.[25]

[24]T103

[25]T40

40      In the first week at Ikea, the plaintiff’s work involved putting in light globes, stocking shelves and installing computers.  It was only light work.[26]  She did similar work until the Thursday of the second week, when her supervisor injured himself and she became the new supervisor. [27] 

[26]T40

[27]T41

41      On the said date, the plaintiff suffered a serious injury to her lower back when she was required to pull a very heavy jack which was holding metal shelving (“the Ikea incident”).[28] 

[28]T104

42      The plaintiff did not recall when she last worked at Ikea but accepted, as the records set out, that she last worked on 7 September 2011.[29]

[29]T41

43      The plaintiff saw Dr Elsner on 13 September 2011, when she told him what happened at Ikea.  She then saw him quite a few times in a row.[30]  She would have told him about the Ikea incident and does not know why he did not mention it in his report.[31]  She agreed it was her case that the computer incident injury had then resolved.[32]

[30]T38

[31]T39

[32]T37

44      The plaintiff confirmed she did not tell Dr Elsner that she had not fully recovered from the computer incident injury when she was injured at Ikea.  She has always said the same thing that the injury with the computer “was fixed,” and then she was fine, she was back at work and then the Ikea incident happened.[33]

[33]T49

45      The plaintiff did not attend Dr Elsner sooner after the Ikea incident because she thought her back would fix itself.  She denied her pain was then a continuum of symptoms from the computer incident.[34]

[34]T49

46      The plaintiff agreed she stopped seeing Dr Elsner on 7 October 2011 but denied this was because her back pain had improved.  On that visit, he tried a different type of treatment and she ended up leaving in more pain.  She did not recall if she informed Dr Kan of this situation.[35]

[35]T50

47      The plaintiff agreed that quite possibly, as Dr Elsner’s clinical note indicated, as of October 2011, she was improving.[36] 

[36]T52

48      The plaintiff agreed she first saw her general practitioner, Dr Kan, on 21 September 2011.  She agreed she told him she initially had left lumbar pain radiating into the left leg, which was of sudden onset approximately two months’ earlier while reaching out over her seated husband to point something out.  She gave this history when he asked her whether her back had been like that before.[37]

[37]T42

49      The plaintiff did not recall telling Dr Kan, as he noted, that the pain from the computer incident was resolving when she hurt herself at Ikea, because she believed the pain she had from the computer incident “was all fixed up”.[38] 

[38]T43

50      Dr Kan advised the plaintiff to rest, use a heat pack and continue chiropractic treatment and possibly see a physiotherapist.  He prescribed Panadeine Forte and Diazepam and suggested she see how her back went after some rest.

51      On 27 September 2011, the plaintiff returned to Dr Kan.  She told him her back had improved a little although it was still very painful.  Dr Kan recommended continuing rest and repeated the prescriptions.

52      On 11 October 2011, the plaintiff returned to Dr Kan, who recommended physiotherapy, and the plaintiff attended Mr Li for physiotherapy treatment thereafter.

53      On about 30 July 2012, the plaintiff submitted a claim in relation to the Ikea incident. The claim was initially rejected but after issuing proceedings, the plaintiff was subsequently paid weekly payments and medical and like expenses. On 28 December 2013, QBE accepted liability for a permanent impairment claim relating to the plaintiff’s Ikea lower back injury.[39] 

[39]Letter dated 20 December 2013

54      The plaintiff did not put in a claim until the year after the Ikea incident because the employer told her over the phone she could not claim WorkCover because she had had prior injuries, and she believed this advice.[40]  She subsequently obtained further advice when discussing her financial situation with the Commonwealth Bank.[41] 

[40]T44

[41]T108

55      The plaintiff was shown the medical certificate accompanying the Claim Form signed by her on 22 July 2012. On that certificate, Dr Kan described the plaintiff’s injuries as flare up of left lumbar back pain while pulling a pallet.  There was an aggravation or recurrence of her previous injury, back pain in approximately July 2011 after reaching to point at something on a computer screen – was improving with seeing a chiropractor.[42]

[42]T45

56      The plaintiff did not believe she described the Ikea incident as a flare up, because it was two different pains.[43]  Her back was better by the time of the Ikea incident.   It had gone back to how it had always been, “no issues, nothing”. She could not say with certainty she did not use the word “flare up” because she could not remember, exactly, what she would have said.[44] 

[43]T47

[44]T48

57      After the Ikea incident, pain radiated all the way down to the plaintiff’s toes and was creating like pins and needles.  That never happened after the computer incident.[45] 

[45]T106

58      After the computer incident, it was like more lower back pain, with a bit of pain going down the leg, not as severe as after the Ikea incident.  The plaintiff was not 100 per cent as to what was the difference in terms of the level of pain after the Ikea incident. In that incident, she just yanked on the pallet and the pain was instant across her back and down her whole leg, whereas with the computer incident, the pain was more across her back, not completely going down the leg.[46]

[46]T105

59      From about March 2012 to October 2013, the plaintiff worked as a part-time delivery driver with Grant Walker Parts.  She worked about 20 to 30 hours per week.  However, she found it very difficult to persist with the job as she was required to get in and out of a Ute and perform deliveries which wreaked havoc on her lower back.  Further, she was regularly required to lift and carry heavy items which caused ongoing problems with her back.

60      The plaintiff delivered car parts from the base in Bayswater.  The furthest she drove was to Rosebud.  Her driving was centred over Eastern Melbourne.  If a car part was not heavy, she was able to carry it into the customer’s premises.[47]

[47]T52

61      The plaintiff had to go back to work because her husband could not support the family.  She basically “sucked it up” and went back to work.  After a few weeks, the pain was just getting worse and worse because she was walking and driving at work and not resting.  She had to go to physiotherapy so she could keep working.[48]

[48]T53

62      In April 2012, the plaintiff attended Ms Tu for physiotherapy at Back at Motion in Bayswater because of ongoing disabling lower back pain.  The plaintiff was also probably taking medication like Mersyndol or Panadeine and Panadol whilst working at Grant Walker.[49]

[49]T54

63      The plaintiff denied, as Mr Scott, medico-legal examiner, reported in August 2012, that she was improving, as her condition had always been the same.  She stopped physiotherapy because she could no longer afford to pay for it.  She kept working in this job as there were lots of bills and it was Christmas.[50]

[50]T56

64      The plaintiff agreed that she worked seven to ten hours a day, five days a week at Grant Walker.[51]  That work might have been a little bit “comfortable” with physiotherapy and medication as Mr Dunin recorded.  She could not actually remember using those words.  She just knew it had been painful all the time.[52]

[51]T52

[52]T57

65      The plaintiff might have worn a brace couple of times working at Grant Walker, but did not have any other aid at that stage.  While in that job, the pain just kept increasing.  She was taking more and more Mersyndol and just could not handle the job in the end.[53]

[53]T101

66      Surveillance was undertaken of the plaintiff at work at Grant Walker on two days in March 2013. 

67      On the film, the plaintiff was shown carrying an oil tray and tying something onto a trailer. 

68      In cross-examination, it was suggested to the plaintiff that it was not apparent in the film that she was impeded in any activity by back pain.  She explained she normally worked through the pain.  She had not told that employer she had injured her back because she felt she would not get a job if she did so.  It was “basically grin and bear it”, she just had to do her job.[54]

[54]T62

69      The plaintiff agreed she was shown on the film bending freely, and she was able to get up and off the Ute with comparative ease.  She explained that she had been attending the physiotherapist during that time.[55] However, she stopped that treatment in late 2012 because the physiotherapist had told her there was nothing else that she could do other than make it comfortable for her to get through the next two weeks and further treatment was a waste of money.[56]

[55]T60 - Angliss Physiotherapy

[56]T63

70      The plaintiff agreed she was shown on the film lifting a bumper bar, but it was fairly light.  She agreed she was shown bending over a metal box in the back of the Ute. She also held onto the back of the Ute on one occasion with one leg on the bottom of the tray of the Ute and levered herself up.  She agreed they were a run of the mill couple of days at work shown on the film.[57]

[57]T64

71      The plaintiff did not think that there was any lifting restriction placed by a general practitioner on her work activities at Grant Walker.[58]

[58]T63

72      The plaintiff was asked about attendances with Dr Kan from September 2012 to October 2013, during her time working at Grant Walker.

73      Following the CT scan which was carried out on 17 September 2012, Dr Kan advised the plaintiff it revealed sciatic problems with damage to the lower lumbar discs and recommended conservative treatment and ongoing medication.

74      The plaintiff agreed that following this visit, she could have attended that practice on twenty occasions, as the notes indicated, and it may be correct that the only reference to work was on 25 March 2013, when it was noted that she requested Panadeine Forte for her back.[59]

[59]T66

75      The plaintiff may not have mentioned her back more often because she did not think there was anything else that could be done.  She was working, she did not want to be on painkillers, so she was trying to just manage in the way she could.  She denied she did not report back pain because she was not having any.[60]

[60]T67

76      The plaintiff would not have been mentioning back pain every single time she attended Dr Kan because she was seeing him for different problems and she was trying to manage her back pain herself, and trying not to take tablets because she did not like taking them.[61]

[61]T68

77      After she left Grant Walker, the plaintiff remained unable to work until about March 2014 when she obtained casual work as a shop assistant at Norm Oliver Butchers.  The job was part time, all day Saturday and Sunday, and occasionally a Friday evening.[62]

[62]T70

78      The plaintiff worked about 20 hours per week in light work.  Nevertheless, she was on her feet all day and at the end of a shift, she had worsening back pain. She took medication including Mydol and Lyrica for pain relief.

79      At the end of the weekend work, the plaintiff needed the following days off to recover.  She was not able to do anything around the house until the next Tuesday or Wednesday.  It took her that amount of time to recover from standing that long at work.[63]

[63]T107

80      The plaintiff believed she was taking Panadeine Forte at lunchtime and as soon as she finished work.  She worked in that job because she needed the money. She was paid $20 per hour.  She ceased work in late June 2014 as it was getting too much for her.[64]   

[64]T107

81      As of December 2014, when the plaintiff swore her first affidavit, she was taking Lyrica, 300 milligrams twice daily, and Panadeine Forte, usually six a day, and Oxydin, 40 milligrams twice daily.

82      The plaintiff deposed the Ikea injury had had a significant impact on her social, recreational and domestic activities and she had lower back pain daily.  Her injury had a big impact on her ability to be physically active and she had lost a lot of physical fitness.  She found it very difficult to run, jog and walk long distances.  She also had trouble picking up her grandchildren, and had to be very careful not to cause a flare up by lifting them awkwardly.

83      The plaintiff’s ability to sleep had been affected by pain, waking regularly throughout the night.  She constantly moved around in bed to try and get into a comfortable position and regularly had to get out of bed and stretch. 

84      The plaintiff was then using a heat pack most days, particularly in the afternoon and evening, and was taking painkilling medication.  Although the medication took the edge of her pain, she had become quite dependent on it.

85      The plaintiff’s injury had had a negative impact on her relationship with her husband and she had lost her libido as a result thereof.

86      The plaintiff was unable to work and her husband’s income did not allow her to receive Centrelink benefits.

87      The plaintiff was then having physiotherapy at Back in Motion as needed, which she self-funded.  She required this treatment in order to keep mobile.

88      Due to her unremitting back pain, the plaintiff’s general practitioner referred her to the Orthopaedic Clinic at the Austin and she was put on a waiting list.

89      Between December 2014 and September 2015, the plaintiff continued to suffer ongoing lower back and left leg pain.  She also started to suffer from worsening depression and psychological reaction to her injury, and also to the death of her grandson.

90      On 23 April 2015, the plaintiff attended Mr Greg Etherington, spinal surgeon, on referral from Dr Kan.  Mr Etherington recommended further scanning and referred the plaintiff for an MRI scan and also suggested a repeat L5-S1 epidural injection performed subject to the result of the MRI scan.  He also recommended a lumbar x-ray and CT scan.

91      In June 2015, when the plaintiff saw Dr Kan, she was complaining of ongoing problems, including back pain, and also depression and suicidal thoughts.  He discussed sending her to a psychologist.  The plaintiff did not think she was on antidepressant medication at that time despite Mr Etherington’s note.[65]  Her issues at that stage were worsening depression and psychological reaction to her injury and the death of her grandson.  She saw a counsellor, not a psychologist, at that time, about what were mainly family issues and marital problems, plus pain.[66]

[65]T72

[66]T73

92      On 6 July 2015, following the lumbar MRI scan organised by Mr Etherington, Dr Douglas advised the plaintiff that scan showed she was suffering from L4 and L5 disc problems, and also issues with nerve root compromise.

93      Following an x-ray and a lumbar CT scan on 7 July 2015, the plaintiff was advised by her general practitioner the results showed there were ongoing problems with the disc at the L4-5 level.

94      In August 2015, the plaintiff’s lower back pain had escalated and she continued to be prescribed Endone and OxyContin.  In September, Dr Kan recommended a referral to a neurosurgeon, and the plaintiff tried to make an appointment at the Austin Outpatient’s Clinic and was then placed on a waiting list.

95      In about November 2015, the plaintiff attended the Austin Neurosurgical Clinic for opinion and possible treatment.  She was then suffering from significant ongoing pain.  It was then recommended that she would require a cortisone injection in the L4-5 region.  That took place on 14 December 2015 at the Austin Outpatient’s Clinic, but did not provide the plaintiff with any significant pain relief.  The following day, she advised Dr Kan she continued to suffer from significant ongoing pain and he further prescribed OxyContin, Panadeine Forte and Endone. 

96      The plaintiff attended the Neurosurgical Outpatient’s Clinic at the Austin on 12 February 2016.   She was advised that surgery was the next step as the injection had not assisted in alleviating the back pain.

97      On 15 February 2016, the Director of Neurosurgery at the Austin wrote to Dr Kan advising of the recommended surgery, namely an L4-5 hemilaminectomy and Rhizolysis and discectomy, and the plaintiff was placed on a waiting list.

98      Between February and June 2016, the plaintiff saw Dr Kan for prescription medication and ongoing management.

99      On 23 June 2016, the plaintiff was admitted and surgery was performed.  She was discharged the following day, and advised to rest and continue taking pain medication.

100     The plaintiff was seen by the Registrar at the Neurosurgery Outpatient’s Clinic at the Austin on 19 December 2016.  It was then thought, if the plaintiff was continuing to suffer from significant lower back pain, an MRI scan should be performed, and she was provided with a referral.

101     The plaintiff saw Dr Morris at her general practitioner’s clinic on 4 January 2017.  The plaintiff was then continuing to suffer from ongoing significant back pain and being prescribed Endone and OxyContin.  Her prescription of 100 milligrams daily of Lyrica continued.   She was also suffering from opiate related constipation, which was becoming a big issue.

102     Following the MRI scan on 14 February 2017, the plaintiff was told she had ongoing issues with her lower back.  It was then recommended she have a further CT-guided corticosteroid injection.  On 20 February 2017, she underwent the injection in her lower back and left hip.  However, she did not experience any significant improvement in her pain, which continued to be a significant problem for her.

103     The plaintiff saw her general practitioner on 6 March 2017, advising him she continued to suffer from significant pain and required ongoing medication.

104     The plaintiff continued to attend that clinic for pain medication, including Endone, OxyContin, Panadeine Forte and Lyrica, which she took every day.  The OxyContin dosage had then increased from 40 milligrams twice a day to 80 milligrams.  The plaintiff continued to take six to eight Panadeine Forte a day.  She also took four to six Endone a day and Lyrica, 300 milligrams a day.

105     The plaintiff has had ongoing problems with her lower back since the surgery, which did not eliminate the pain, and her pain has stayed pretty much the same.

106     The plaintiff continues under the care of the Wantirna Clinic.  She saw Dr Kan until the middle of 2016, when he left, and she has seen a number of general practitioners, in particular, Dr Kate Douglas, who has also recently left the clinic

107     Since swearing her second affidavit on 24 April 2017, the plaintiff has been attempting to reduce the amount of medication she takes.  She has been referred by her general practitioner to Peter James Rehabilitation in East Burwood in 2016, but was not able to attend because she was then in too much pain.

108     The plaintiff’s general practitioner has continued to urge her to attend the clinic, and in June 2017 she attended once, when it was recommended that she reduce her OxyContin dosage from 80 to 60 milligrams twice a day.  It has been recommended the plaintiff stop taking that medication altogether; however, after she reduced the dosage, she has experienced significant lower back and leg pain.

109     The plaintiff had an appointment on 9 August 2017 for further review and rehabilitation at Eastern Health Angliss Centre.  She had little hope the rehabilitation would assist her condition.  She believes she has a significant permanent impairment to her spine which had not improved with time.  When she has tried to reduce her OxyContin, she has experienced more significant left leg pain.  She is now faced with the reality she will suffer from ongoing significant pain which is unlikely to improve into the foreseeable future, which will require the continuing use of pain killing medication.

110     The plaintiff was cross-examined about the post-operative prescription of OxyContin and the different advice she received from her surgeon and the pain management team.[67]

[67]T74

111     Post operatively, the plaintiff was told by her surgeon that there was nothing further that could be done and for her to stay on medication until the next review.  In those circumstances, she did not ask to be referred to a pain clinic.[68]

[68]T76

112     The plaintiff did not have a problem with her general practitioner’s suggestion she have pain management and that is what she is now doing.[69]  She agreed she was upset at her doctor’s desire to get her off medication and conceded she was addicted to OxyContin.[70]

[69]T77

[70]T78

113     The plaintiff believed the referral to pain management actually got lost by the pain management people.  She started there in June this year.  At the one appointment she attended, there was a discussion and plan to reduce her OxyContin intake, and was then told that she would be seen again in three months, to see how she was going with that dosage.[71]  She understood, later in August, she was to see a psychologist as part of the pain management program.[72] 

[71]T78

[72]T79

114     The plaintiff continues to take the reduced dosage of 60-milligram Oxycontin, with the intention of being weaned of that medication.  She thought this was a good idea.  The only thing was, with reducing the medication, so far, the pain is getting worse.[73] She has increased, more significant left leg pain with the reduction in the dosage.[74]

[73]T79

[74]T112

The suggested jobs

115     The plaintiff was asked about the interview with CoWork and the discussion with vocational assessor, Katrina, about her capacity to do various jobs that had been suggested.[75]

[75]T90

116     The plaintiff has not tried to get a job after the incident.  When she had done part-time work at the butcher’s shop she was in a lot of pain thus she had “basically given up”.  The pain has not changed, if anything, it is getting worse.[76]

[76]T91

117     The plaintiff agreed that she would have “the smarts” to do a job like a mystery shopper. She had applied for this type of work before the Ikea incident. However, she could not do the job now as she could not stand up or drive for too long.[77] 

[77]T92

118     The plaintiff has no intention of seeking work in the next month.  She would like to work again, but it depends on the progress of her back pain and what happens with pain management.[78] 

[78]T94

119     The plaintiff could not work as an Uber driver because she did not have a new car.  She would not be able to do security work or work as school crossing supervisor because of a criminal conviction.  A dry cleaning assistant job would be unsuitable if she was standing all day.[79]  She has never done clerical work and “she cannot type for shit” and would need to be retrained.[80]  Overall, in terms of the suggested jobs, as the plaintiff had discussed with Katrina, there are the problems with sitting and standing.[81]

[79]T95

[80]Vocational report

[81]T96

120     The plaintiff did not think Dr Kan had actually said anything to her about attempting to return to work.[82]

[82]T109

121     Dr Zhu never discussed the suggested jobs with the plaintiff.  He just said she could do the work.[83]  He had formed his view seeing her walk into the surgery and examining her five times.[84]  He told her that he had written a letter saying she could do certain jobs and that is when she asked him how he reached his view without talking to her and without really explaining it to her.[85] 

[83]T113

[84]T96

[85]T97

122     The plaintiff asked Dr Zhu how he thought she was fit for some work when he had not even examined her as had a number of other doctors who had asked her to bend and stretch.[86] 

[86]T97

123     The plaintiff’s pain is increasing.  She denied she had effectively given up any hope of work and that by doing so she thought this was benefit her court case.[87] 

[87]T98

124     The plaintiff has a basic understanding of the physical demands of what is involved in the jobs suggested by CoWork. Given her medical condition, ongoing significant pain, the need to take medication daily, her poor memory loss and levels of concentration, the regular need to change her posture, her inability to stand and sit for long periods, her lack of appropriate skills and the need to retrain, she did not believe she had the capacity to perform suitable employment and, in particular, the jobs identified.

125     The plaintiff would also not be a reliable employee.  There are days when she is suffering very significant pain and finds it difficult to get out of bed.  She would not be able to attend work regularly.  She is regularly suffering from disabling pain which would prevent her not only from attending but, also, performing regular and reliable work.

126     Further, the plaintiff’s capacity to attend work is also compromised, as she finds driving long distances difficult, and tends to avoid doing a lot of driving due to ongoing substantial pain and discomfort from sitting for long periods and, also, the amount of medication she takes.  She is concerned that her level of medication may impair her ability to drive safely and that driving with OxyContin may cause her to lose her licence.

127     Many of the identified jobs require the plaintiff to maintain postures for long periods of time.  She would not be able to drive for long distances as a courier and would have similar issues and problems performing that job, and the others, on a reliable, or on a safe, basis.  Also relevant, is she is almost fifty-one, and the jobs identified are normally filled by a lot younger employee.

128     Further, the employment the plaintiff has performed in the past has mainly involved physical work, which she cannot perform.  She has little other transferable skills.  She believes, as a result of her injury, she will suffer from a permanent loss of earning capacity, which is likely to continue for the foreseeable future.

129     The plaintiff could not work twenty hours a week because of her pain.  If she has a bad night, if she sleeps on her back by accident and wakes up, she cannot walk the next day.[88]

[88]T98

Other restrictions

130     The plaintiff continues to be significantly restricted in the activities she enjoyed before the Ikea incident; she has not been able to return to work, and has lost all capacity for employment. 

131     The plaintiff tends to use a walking stick from time to time, but not all the time. She uses it as a support when she is required to travel long distances, or be in crowds.  She could not recall specifically discussing her use of the stick with her general practitioner.[89]

[89]T99

132     The plaintiff’s husband has started sleeping on the couch, as he finds it too difficult to sleep in bed with her.  She tends to wake up regularly throughout the night in pain.  Further, she tends to roll around in bed and needs to change her posture on a regular basis.  There would not be a night when she does not have a disturbed sleep.

133     The plaintiff agreed she now suffers from stress and anxiousness, such that she now does not want to leave the house.[90]

[90]T73

134     The plaintiff finds it difficult to perform basic housework and she needs help to do the vacuuming, sweeping, cooking and washing.  Her children tend to help her perform most of those duties.

135     The plaintiff lives with her three daughters, two of whom have partners, and six grandchildren aged from five months to seven.  She occasionally helps out with their care.  She does light housework and laundry at times.[91]  She is not “taking them out or going partying or anything like that”.  It might be just watching them while her daughter drops some of the children at school.[92] 

[91]T89

[92]T90

136     The plaintiff denied, in reality, her domestic situation was such she was needed at home.  Her children “run the house” and it is not hers anymore.[93] 

[93]T98

137     The plaintiff has also suffered declining health and suffered from pneumonia on a number of times, at least once or twice a year. In May 2013, she was diagnosed with pneumonia and Endone was prescribed.  She was hospitalised for about a week and a half.   That illness was complicated by her back injury.[94]

[94]T60

Medical evidence

Pre-incident clinical notes and reports

138     The plaintiff attended Access Medical Group on 6 June 2006 complaining of pain in the back after lifting three cans each of 20 litres and “had done her back”.  It was noted that she cannot walk or bend and, on examination, was tender over the L5-S1 disc.  Panadeine Forte and Nurofen were prescribed.

139     On 8 June 2006, the x-ray results were discussed and there was no abnormality.  It was noted the patient had pain and was better.  She was given a WorkCover certificate for two more days and light duties from Monday to Wednesday 14 June 2006). 

140     On 10 June 2006, it was noted:

“Four weeks ago at work after lifting started low back left pain.  Pain radiated to left posterior thigh above knee.  Persistent ache, semi lying easy pain, preferred standing to sitting, couldn’t sleep well because of pain.  No leg weakness.”

141     On examination:

“Well looking, walked with slight limp.  No significant pain if stationary. Lumbar spine not tender.  No sign of spasms or tenderness.  Slight restriction of flexion. Keep taking Voltaren and Panadeine Forte, Diazepam.”

142     The next entry was on 23 June 2006, when it was noted the plaintiff was on WorkCover for back injury:

“Back is better now.  Still sore now and then.  Not sleeping well at night. Script for Stilnox.”

143     The plaintiff attended Access Medical Group on 15 December 2009, when it was noted, on 12 December:

“Back after lifting at work. Rest on Monday.   On Monday again after lifting back pain and also right elbow pain.  On examination mild pain and on flexion. Light duties.”

144     On 21 December 2009, it was noted the plaintiff had back pain. “Better after exercise and light duties continuing light duties.”

145     In a confidential health questionnaire completed by the plaintiff and Dr Elsner, chiropractor, on 21 June 2011, the plaintiff set out that she believed the reason for the consultation was a pinched nerve on the left side.  It appeared suddenly, gradually leaning forward pointing. The problem was then present one hundred per cent of the time and was getting worse. It kept her from working, sleeping and her daily routine.  She had had the problem six or seven years ago and described the pain as nine out of ten.  She was taking painkillers.  The pain was mapped in the central lower back, radiating to the middle of the left thigh.

146     In his report of 3 December 2012, Dr Elsner noted that he saw the plaintiff on 21 June 2011 for examination and treatment of injuries reportedly incurred from a work-related injury on 19 June 2011.  In that report, Dr Elsner repeated the contents of the June 2011 questionnaire.  

147     Dr Elsner considered the plaintiff was suffering from left-sided sciatica due to a left-sided disc bulge at L5-S1 causing compression of the exiting L5 nerve root.  He noted the last time he saw her as a patient was on 7 October 2011.  He thought that in the future, the condition is likely to reoccur with more frequency and severity, and may even have a deleterious effect on the plaintiff’s basic activities of daily living.

148     Dr Elsner’s notes indicated that he saw the plaintiff on 24 June 2011 when there was a complaint of left SIJ pain with sciatica, and adjustment was carried out. There were further adjustments on 28 June and 1 July 2011.

Ikea incident treatment

149     On 13 September 2011, the plaintiff attended Dr Elsner.  She then complained of SIJ for several days since pulling a heavy trolley awkwardly.  An adjustment took place on 16 September 2011 when the same history was noted.

150     On 20 September 2011, it was noted left sciatica was not better, and there was further adjustment. There were further adjustments on 23 September and on 27 September 2011. On the latter date, it was noted that sciatica was not better.

151     There were further adjustments on 30 September, 4 and 7 October 2011.  On the last date, it was noted left sciatica was not better.

152     On 18 September 2011, the plaintiff saw Dr Weerasinghe at Access Medical Group.  The plaintiff then complained of back pain, and it was noted she had seen a chiropractor.  On examination, there was tenderness over the left buttock and there was a note “? disc prolapse”.  A prescription was written for Mobic and Panadeine Forte, and a medical certificate given. 

Access Medical Group – clinical notes

153     On 21 September 2011, the plaintiff saw Dr Kan as a new patient. 

154     The note of that attendance read as follows:

“Left lower back pain after reaching over husband to point out something on a computer screen.  Was slowly improving.  Was seeing a chiropractor, but stopped going as she couldn’t afford it due to expenses with sick dog. 2/52 ago flared up back pain again when pulling on pallet at work.  Not keen to go through WorkCover though work aware of injury.  Pain in left lumbar back radiating down left leg.  No weakness/numbness.”

155     On examination, with forward flexion the plaintiff was only able to reach her knees.  SLR was positive in the left leg.  Power, sensation and reflexes were normal and there was tenderness in the left lumbar back and buttock.  The reason for contact was mechanical back pain.  Panadeine Forte and Diazepam were added. The plaintiff was to have a heat pack and continue seeing the chiropractor or physiotherapist and to be reviewed if not improving or worsening.

156     On 27 September 2011, Dr Kan noted that the back pain was slowly improving.  The attendance with Dr Elsner was noted, as was the plaintiff being keen to get back to work as she was casually employed.  The plaintiff was requesting Panadeine Forte and Diazepam, taking with NSAID provided by a previous general practitioner.  She found it painful and difficult to move without it.  There was similar examination findings.  It was noted that the chiropractor had advised the plaintiff was slowly improving.  The same prescriptions were given.

157     On 11 October 2011, Dr Kan noted left lower back pain slowly improving but not as quick as hoped “started seeing a physiotherapist weekly.  Getting slight numbness and pain in the left buttock lateral left thigh area.”

158     On examination, there was an antalgic gait and mildly tender left buttock. Power, sensation and reflexes were normal.  Further Panadeine Forte and Mobic were prescribed.

159     There were attendances for unrelated issues in January 2012.

160     On 25 March 2013, Dr Carlose noted the plaintiff would like some Panadeine forte from PRN use for back – “That seems appropriate. Can alternate with Nurofen.”

161     On 8 October 2013, Dr Alexander noted:

“Ongoing left sciatic pain is still ongoing after two years.  CT scan last year showed spinal nerve root compression.  Tried physio, takes Codeine 15 milligrams daily.  Past weakness in the leg – couldn’t support weight on it.  Pins and needles.  Would like to see a specialist.”

162     On examination, there was an absent left ankle jerk reflex. There was ongoing sciatic pain.  Endep was to be trialled and a further referral was made to the Austin.

163     On 18 November 2013, Dr Alexander, noted ongoing left sciatic pain.

“First incidence – 2006 then 2010 – only shortly breaks off work.  Then – past two years – left leg pain continuously, day and night.  Usually just to the knee, posteriorly, ten per cent of the time goes down to the foot.  Does get pins and needles in the left foot.”

164     It was noted Endep has not helped with sciatica.  Went up to 20 milligrams daily, but that made the plaintiff feel dopey.  Pain still there.  She was taking Codeine, 30 milligrams, four to six hours every day.  It was noted “past CTs of the lumbosacral spine and cervical spine show nerve root compression” (2012).

165     It was noted the plaintiff was referred to Austin Neurosurgery Outpatients Clinic and a back and neck questionnaires was completed.  Lyrica was trialled, starting at 75 milligrams at night, then gradually increased.  It was noted that the aim was to wean off Codeine if this was effective, and may increase to 150 milligrams of Lyrica tablets if needed.  Lyrica was added and there was a general referral letter to Mr Gavin Fabyinyi.

Treaters’ reports

166     Dr Kan was the plaintiff’s general practitioner until September 2016, when she started to see other practitioners at the Wantirna Clinic.  In a new claim medical practitioner questionnaire completed by Dr Kan on 23 August 2012, he set out as follows:

“Left lumbar mechanical back injury.  Patient states that she injured her back at home originally in July 2011 while reaching over to point out something on computer screen.  This was improving with chiropractic treatment, but flared up again on 10 September 2011 with pulling on pallet jacket work.  Patient seen for three consultations from 21 September to 11 October then again 19 July 2012.”

167     Dr Kan noted the plaintiff previously had not had the same medical condition or reported the same or similar symptoms.  In terms of the mechanism of injury, he noted the previous back injury of July 2011 (“the computer incident”), pulling heavy pallet jack when possibly not fully recovered from injury on July 2011.

168     Dr Kan thought the plaintiff then had a capacity for modified or alternate duties with the pre-injury employer with a 5-kilogram maximum lift and no limit on sitting, standing or walking.  He thought physiotherapy might help.  He noted there were no medications.  There were no investigations at this stage, as the plaintiff was improving.  The plaintiff was to present for review as required.

169     Dr Kan noted the prognosis was uncertain and there was uncertainty regarding the expected resolution of incapacity for work, as the plaintiff had not been assessed frequently enough recently for this to be determined.

170     In his report of 27 September 2012, Dr Kan set out that the plaintiff initially presented on 21 September 2011, when she reported she initially had left lumbar back pain with some radiation of pain into her left leg which was a sudden onset about two months prior while reaching over her seated husband to point out something on a computer screen.  She recorded this was initially improving with chiropractic treatment but flared up again on 10 September 2011 while pulling a heavy pallet at work (he had recently corrected that to be 3 September 2011.)

171     The plaintiff re-attended on 27 September and 11 October 2011, and stated her pain was slowly improving with analgesia and treatment with a chiropractor and physiotherapy.

172     The plaintiff did not attend again regarding her back pain until 19 July 2012, when she requested a WorkCover certificate regarding her injury.  She attended on 1 September 2012 with ongoing left buttock and left leg pain, paraesthesia and reduced sensation.  She was sent for a CT scan in September 2012.  Her diagnosis was then back and leg pain due to an L5-S1 radiculopathy.

173     Dr Kan then thought the plaintiff’s employment was likely to have aggravated her initial injury sustained at home while reaching.  He believed her current symptoms and incapacity were as a result of her injury.

174     Dr Kan then thought the plaintiff had a capacity to lift items under 5 kilograms and should not do any pulling type activities or bending at the waist.  He noted she was currently working as a delivery driver and that work was suitable.  He thought she was then having physiotherapy intermittently and analgesia as required, for example Mersyndol, which may be beneficial in helping her remain at work and possibly to be able to increase her duties in time.  If her symptoms did not improve with physiotherapy on a regular basis, Dr Kan advised the plaintiff be reviewed by neurosurgeon.

175     Dr Kan most recently reported in February 2017, at which stage he thought the diagnosis remained unchanged with lumbar back and left leg radicular pain relating to L4-5 disc prolapse and left L5 radiculopathy.

176     Dr Kan noted that despite extensive surgery and treatment, the plaintiff continued to have debilitating back and left leg pain that affected her functioning.

177     Dr Kan then thought the plaintiff remained unfit for her pre-injury employment due to her physical back injury.  This was due to her ongoing pain symptoms, reduced physical functioning and the physical nature of pre-injury employment.

178     Dr Kan considered that the plaintiff would be unlikely to be able to undertake any alternative employment then because of the significant persisting symptoms she continued to experience as a result of her injury, her education and occupational history of having finished school at Year 10 and a self-described history of unskilled and often physically intensive work in factories and retail.

179     Dr Kan thought the plaintiff’s symptoms were likely to continue into the foreseeable future due to the persisting chronic nature of her symptoms and the lack of improvement with treatment so far, including ongoing high requirements for analgesic medication.

180     On 21 April 2012, the plaintiff presented to Back in Motion at Bayswater with left-sided lower back pain extending down into the back of her hamstring, which was progressively worsening.

181     Angela Tu, physiotherapist, noted the plaintiff was unable to work full hours without experiencing a significant amount of pain.  When she is unable to self manage her pain with exercise, heat or medication, she has privately paid for physiotherapy.

182     Ms Tu thought that the plaintiff’s injury was caused by the incident where she was required to exert a heavy pulling force on a pallet which was stuck.  In her view, this was the reason why the plaintiff had ongoing lower back pain.

183     Ms Tu noted that the plaintiff reported having to drive for 96 per cent of the working day to deliver parts, which could vary from very light to heavy.  She thought the plaintiff’s duties aggravated and made worse her injury, and that was reflected in the plaintiff reporting she was unable to work a full day without pain.  She was made to sit for long periods and lift over 5 kilograms without aggravating her pain.

184     Ms Tu noted the plaintiff reported that the 5-kilogram restriction imposed by her general practitioner was helping but she was still required to sit for long periods, which aggravated her injury

185     Ms Tu also noted the plaintiff had problems at that stage fulfilling full household duties.

186     The plaintiff attended eight physiotherapy sessions from 21 April to 3 October 2012 with Ms Tu.  Physiotherapy, consisting of manual therapy, together with a clinical Pilates program, to allow the plaintiff to remain at work, decrease her pain and achieve functional gains.

187     The plaintiff was referred by Dr Carlose, general practitioner, to Angliss Physiotherapy on 18 September 2012.  The history of presenting complaint was:

“Hurt back at work one year ago pulling a heavy pallet working at Ikea. Initially seen in September 11 for this condition – had back pain prior and then it flared with activity at work.  Hurt the left lower back radiated to the left leg.  Saw a chiropractor, physiotherapy.  Initially not on WorkCover. Applying now to be back paid.  Now back is sore.  Using OTC painkillers and hot water bottles after a hard day.  Example, if does some cleaning after a day of work it really flares.  Sits for driving at work.  Sitting is more comfortable.  Walking is where it starts playing up.  Leaning forward worse. Pain is from middle of left buttock radiating down left leg.  If flares gets pins and needles to the left outer part of the toes.  On examination the sore spot was in the middle of the left buttock.  There was limited right lateral flexion. Whilst normal power there is reduced sensation in the left foot lateral part.”

188     Dr Alexander completed a back and neck questionnaire on 18 November 2013.  She noted that there were two years of left lower limb sciatic pain which was constant day and night.  The current condition was left-sided leg pain, bilateral pins and needles in hands and on the medial side, with the date of onset being 20 September 2011.

189     The plaintiff was then taking Codeine, four to six daily.  It was noted that Endep was not helpful and there was some residual pain, even though taking four to six Codeine a day.  Walking duration was 50 to 100 metres and sitting for five to fifteen minutes.  It was noted that sleep was significantly disturbed.

190     The plaintiff was referred by Dr Alexander to Mr Fabyinyi, neurosurgeon, at The Alfred hospital in November 2013.

191     Dr Alexander advised that the plaintiff was sent regarding her left lower limb sciatica pain, also bilateral hand pins and needles.  It was noted that the plaintiff had had two years of moderate to severe left leg pain, which was present day and night, and she was now being started on a trial of Pregabalin, having already been on Codeine, four to six hourly.  It was noted that the plaintiff was then taking 75 milligrams of Lyrica.

192     Wantirna Medical Centre referred the plaintiff to Back in Motion physiotherapy in January 2014 with chronic back pain, left-sided sciatic pain down to the heel.  It was noted the plaintiff was then responding to Lyrica.

193     Ms Burden from that practice reported in February 2014 that the plaintiff was undergoing treatment and was progressing well with her exercises.

194     Spinal surgeon, Mr Greg Etherington, wrote to Dr Kan in May 2015.

195     Mr Etherington noted the plaintiff’s history began in September 2011 with the Ikea incident.  The plaintiff advised that essentially since then, she had had persisting pain in her lumber spine and down her left leg.

196     On examination on 23 April 2015, the plaintiff complained her main pain was centred in the left buttock.  It went down the posterior thigh, posterolateral side of the lower leg on to the dorsolateral side of the left foot.  She found standing and walking around was quite uncomfortable, and she used a walking stick quite frequently.

197     Mr Etherington noted in the past, the plaintiff had had a number of unrelated health problems.

198     Mr Etherington had available the lumbar CT scan of 17 September 2012.

199     Mr Etherington noted the plaintiff had persistent pain which had been there for three years which would be consistent with degenerative lumbar problems.

200     Mr Etherington organised for the plaintiff to have an MRI scan, an x-ray, a repeat CT scan and a left L5-S1 epidural injection and planned to see her again when everything was done.

201     Jane Dixon, senior musculoskeletal physiotherapist at the Austin, wrote to Dr Kan in November 2015.

202     Ms Dixon noted that she had reviewed the plaintiff’s clinical presentation and MRI scan with Mr Gonzalvo, neurosurgeon, who then further consulted with the plaintiff. 

203     Ms Dixon noted the lumbar MRI scan showed a mild disc bulge at L4-5 with bilateral foraminal narrowing causing contact of the L5 nerve on the left.  She noted Mr Gonzalvo felt the plaintiff may well need decompressive surgery; however, they would like to try an L4-5 epidural first.  There would be further review in three months to decide whether or not to proceed with surgery.

204     Mr Gonzalvo wrote to the plaintiff’s general practitioner in February 2016.  He noted the plaintiff had had an injury at work about four years ago and, since then, had been suffering from excruciating low back and left sciatic pain.  She was then taking Lyrica and also had the opinion of a pain management group. 

205     Mr Gonzalvo noted that the lumbar MRI scan in July 2015 showed a small disc bulge at L-5 as well as lateral recess stenosis.

206     Given conservative management had been exhausted and the plaintiff had had pain for more than four years, Mr Gonzalvo advised surgery to decompress the left L5 nerve root in the lateral recess would be the last option.  It was then noted that the plaintiff was on a waiting list (Category 3) for a left L4-5 procedure.

207     An operation report from the Austin dated 23 June 2016 set out that surgery in the form of a left L5 hemilaminectomy, lateral recess decompression, L4-5 rhizolysis was undertaken in June 2016 by Dr Cheung, neurosurgeon.

208     The plaintiff was referred by general practitioner, Dr Douglas, to Eastern Health Pain Management Clinic by letter dated 11 November 2016. 

209     Dr Douglas advised of the surgery and that, unfortunately, the plaintiff found it too painful to complete a post-operative rehabilitation program and had been delayed in a follow up with the neurosurgical team, who were apparently going to refer her to a chronic pain service.

210     Dr Douglas also advised of her concerns of the plaintiff’s opioid requirements continuing to escalate, and requested further assessment and management.

211     The Neurosurgery Registrar at the Austin reviewed the plaintiff in December 2016.  It was then noted that the plaintiff’s left L4-5 pain unfortunately did not improve at all since the surgery.  The plaintiff was advised that a CT-guided left L5 nerve root injection would be undertaken and there would be a repeat MRI scan and review in three months’ time.

212     The plaintiff’s current practitioner, Dr Zhu, reported twice in July this year.  He has seen the plaintiff five times since 2 March 2017.

213     In his first report, Dr Zhu concluded that given the plaintiff’s physical restrictions, the role of mystery shopper was suitable.  Cashier work would be suitable provided the manual handling restrictions were adhered to.  The job of courier was not suitable.  Given the plaintiff’s physical restrictions, the roles of customer service and receptionist were appropriate for her.

214     Dr Zhu noted the plaintiff had experienced her symptoms for a number of years, consulting numerous practitioners and had various treatment including surgery. Despite that, she was still experiencing significant distress from her symptoms, which were likely to persist into the foreseeable future.

215     Dr Zhu provided a supplementary report, having been given Dr Macbeth’s report.

216     Dr Zhu advised he had only given consideration to the physical demands of the suggested roles. He acknowledged the other factors, including cognitive capacity, that must be considered when determining the suitability of a role.  Dr Zhu advised he valued and respected Dr Macbeth’s opinion as a specialist occupational physician and thus deferred to her expertise and her view as to the inability of the plaintiff to do the jobs for cognitive reasons.

The Plaintiff’s medico-legal evidence

217     The plaintiff was examined by psychiatrist, Dr Sheehan, in March 2013.

218     The plaintiff then described pain in her left buttock and left leg that occurred at least once or twice a week.

219     Dr Sheehan diagnosed a mild Chronic Adjustment Disorder with Depressed and Anxious Mood as a result of the Ikea incident.  He did not think the plaintiff’s psychiatric condition was such it would interfere with her work.

220     Mr Dunin, orthopaedic surgeon, examined the plaintiff in April 2013.

221     On examination, the plaintiff told Mr Dunin that her lower back pain varied in intensity.

222     The plaintiff advised that, in February 2010, she developed mild lower back pain after moving some tiles, had no time off work and her symptoms completely resolved after several days.  She also told him about the computer incident with acute lower back pain for a week not associated with any referred pain to the leg.

223     Mr Dunin thought the plaintiff developed acute back pain associated with radicular leg pain after the Ikea incident.  That caused persistent left lower leg pain, which was slowly improving, although the symptoms had not completely resolved.  He thought the symptoms were more in keeping with nerve root compression, slight irritation rather than mechanical back pain, and that those symptoms were quite different to the short episodes of pain the plaintiff had had in the past.

224     Mr Dunin considered the most likely cause of the pain after the Ikea incident was a lumbar disc prolapse bulge, and that was in keeping with the MRI scan findings.  Given the previous back symptoms were short lived and completely resolved, and were different to those after the incident, Mr Dunin considered the work-related injury was a new condition and that the incident injuries continued to contribute to the plaintiff’s present symptoms.

225     Mr Dunin then thought the plaintiff was limited in work capacity as a result of the injury.  She was no longer able to do labouring work.  She was able to lift light weights and drive a car without difficulty.  He thought her prognosis was good, but it was unlikely she would be able to return to her pre-injury duties.  At that stage, he did not think she would require any surgical treatment, noting she did get some improvement from physiotherapy.

226     Mr Roy Carey, orthopaedic surgeon, examined the plaintiff on 26 November 2013 on behalf of QBE for the purposes of an impairment assessment.

227     In that report, Mr Carey had a history of the Ikea incident and treatment thereafter.

228     At that stage, the plaintiff continued to have mid low back pain, which was constant.  She had never had any right leg symptoms and had constant pain in the left leg, buttock and posterior thigh, and intermittent pain in the left calf.  She had intermittent pins and needles in the outer toes and lower outer shin.

229     Mr Carey noted that the plaintiff told him she never had lower back trouble until working with Aldi in 2006.  She had two days off work and had some physiotherapy after a lifting incident, and returned to work 100 per cent onto full-time normal duties.

230     In about July 2010, there was a lifting incident at Bunnings which produced mid lower back pain without leg radiation.  There might have been a few days off work and then a return to normal duties, with Bunnings giving her a back brace, which she would apply when doing physical activities.

231     Mr Carey then had a history of the computer incident in June 2011, with three days off work, chiropractic treatment, and returning 100 per cent to normal work full time.  The plaintiff’s employment at Bunnings ceased when they stopped giving her shifts, perhaps in July 2011. The plaintiff also decided to take some time off work because of social issues and her daughter’s injury in a dog attack.

232     Mr Carey also noted the plaintiff started working for the employer in mid-August 2011 and went off on 3 September 2011, and her employment was terminated by a phone call in January 2012.

233     In March 2012, the plaintiff took a job as a delivery driver.  The work was always physical.  She was permanent part time, always working over thirty-two hours a week.  The plaintiff’s back and left leg trouble had never resolved after she left the employer, but was manageable until about six weeks before this examination, when the back and left leg pain had become unmanageable over the previous few weeks, and she resigned and was not currently working.

234     Following examination, Mr Carey thought the plaintiff had chronic back and left leg pain, likely due to aggravation of lumbar spondylosis. There was no evidence of radiculopathy.  He noted the range of motion observed at the time of examination was consistent with the plaintiff’s observed behaviour during consultation.  He thought she required further investigation and an opinion for further management which was currently suboptimal.

235     Mr Carey considered the prognosis was for continued discomfort and disability into the foreseeable future.  He allowed a 5 per cent whole person impairment in relation to the lumbar spine.

236     Whilst of the view the plaintiff’s current situation was produced by the subject injury, Mr Carey also commented that the plaintiff’s employment no longer continued to materially contribute to the injury.

237     Dr Robyn MacBeth, specialist occupational and environment physician, examined the plaintiff in February 2017.

238     The plaintiff then complained of constant central lower back pain as well as right and bilateral lower back pain, predominantly on the left.  The lower back pain radiated to the left buttock down to the foot.  The plaintiff rated the severity of her pain at 7 out of 10, and on an average day, between 3 and 10.

239     Dr MacBeth had a history of the Aldi incident and also the computer incident, after which the plaintiff’s back fully resolved.  The latter was not associated with any radiation of pain to the lower limb.  The plaintiff also mentioned the Bunning’s incident in 2010.

240     Based on the assessment and information available, Dr MacBeth thought the plaintiff sustained an acute lumbar spine injury on the background of a degenerative L4-5 disc, causing impingement of the left L5 nerve root, resulting in a left L5 radiculopathy, possibly related to the incident.

241     Those complaints had been refractory to conservative treatment, leading to surgery and a CT injection post surgery.  Dr Macbeth thought the plaintiff had also developed a secondary Chronic Pain Disorder.

242     Given the chronicity of the plaintiff’s lower back and residual left sciatic and lumbar spine dysfunction, Dr MacBeth thought it unlikely her condition would ever resolve.  She thought the plaintiff was likely to benefit from a pain management program of a multidisciplinary nature to assist her to manage her chronic lower back and left leg pain and, in turn, improve her physical function and reduce her level of disability.

243     Dr MacBeth considered the plaintiff would never be fit to return to pre-injury store duties.

244     Dr MacBeth thought the plaintiff was able to undertake alternative suitable employment on a restricted basis in terms of hours and duties based on her Chronic Pain Disorder that had developed as a secondary consequence of her lumbar spine injury, and the residual functional limitations, as well as cognitive side effects of her medication.

245     Dr MacBeth thought the plaintiff was fit for part-time sedentary work with the following restrictions.

·need to alter her posture as often as required according to her symptoms

·avoid bending, stooping and rotation of her spine

·no manual handling or lifting greater than 5 kilograms

·no pulling and pushing greater than 5-kilogram force

·provision for rest breaks when required.

246     Based on the plaintiff’s current physical and cognitive functional capacity, Dr MacBeth thought she was fit to work up to four hours a day, three days a week.

247     In Dr MacBeth’s view, the dominant cause of the plaintiff’s incapacity for pre-injury work is the sequelae of her lumbar spine injury, specifically her organic Pain Disorder and residual functional limitations.  The Chronic Pain Disorder is likely due to central sensitisation and organic change in the central nervous system pathways.

248     Given the chronicity of the plaintiff’s lower back symptoms and residual left-sided sciatica, Dr MacBeth thought it likely her symptoms would persist into the foreseeable future.

249     In her July 2017 report, Dr MacBeth commented on the CoWork vocational assessment.

250     In Dr MacBeth’s view, the mystery shopper role was inappropriate, given the plaintiff’s physical and cognitive functional limitations and permanent medical restrictions, as she would not be fit to safely and efficiently perform the inherent requirements of this role.

251     Dr MacBeth thought the courier role was not appropriate and the plaintiff would require regular breaks from driving to prevent exacerbation or aggravation of her chronic pain which would impact on her ability to efficiently perform the inherent requirements of the role.  Further, this role was not appropriate, as the plaintiff’s fatigue and impaired cognitive function rendered her unfit to drive a courier vehicle safely.

252     Dr MacBeth considered the physical demands of the cashier role would be appropriate, provided the plaintiff could work part-time hours and the employer could accommodate the permanent medical restrictions suggested by Dr MacBeth.  However, given the plaintiff’s fatigue and impaired cognitive capacity, Dr MacBeth thought she would not be fit to fulfil the cognitive demands of the cashier role.

253     Dr MacBeth considered the physical demands of the customer service officer role would be appropriate, provided the plaintiff could work part-time hours and the employer could accommodate the permanent medical restrictions.  However, based on the plaintiff’s fatigue and impaired cognitive capacity, Dr MacBeth thought she would not be fit to fill the cognitive demands of the customer service officer role.

254     In Dr MacBeth’s opinion, the physical demands of the receptionist role would be appropriate, provided the plaintiff could work part-time hours and the employer could accommodate the permanent medical restrictions.  However, given the plaintiff’s fatigue and impaired cognitive capacity, she would not be fit to fill the cognitive demands of the receptionist role.

255     Dr MacBeth thought the plaintiff was fit for part-time sedentary work within permanent medical restrictions.  The jobs that might be suitable for the plaintiff to perform on a part-time basis within her level of education, training, transferrable skills and work experience, as well as the permanent medical restrictions, are jobs that predominantly required seated duty and minimal physical exertion, for example administrative jobs, self-paced light packing work or quality control jobs.

256     Dr MacBeth thought the permanent medical restrictions were likely to continue into the foreseeable future.

257     Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in March 2017.  He had a history of a lifting incident in 2003, the Bunnings incident and the computer screen incident.  Following the computer incident, the plaintiff did not take any time of work and made a full recovery with some chiropractic treatment after a few days.

258     On examination, the plaintiff complained of lower back pain present 90 per cent of time, and the constant pain being worse with standing, bending or walking.  There was left leg pain extending from the buttock down the back of the thigh and side of the lower leg and foot and outer toes, present 90 per cent of the time and burning in nature.

259     On examination, there was restriction of thoracolumbar spinal movements.  There was palpable guarding to the left of the upper spine, but no objective neurological abnormality of the lower limbs, and no signs of radiculopathy.

260     Noting there had not been any previous ongoing lower back or leg pain, with the onset thereof described during the incident of heavy work and a continuation of pain since then, and the radiological demonstration of lumbar degenerative changes, Mr Brownbill considered, on probability, in the incident, the plaintiff sustained aggravation of those lumbar degenerative changes, giving rise to the onset of back and left leg pain, which has continued.

261     Mr Brownbill thought, in the future, the plaintiff will need to avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged sitting or standing.  He considered it was appropriate she be reviewed for treatment by a pain management clinic.

262     Mr Brownbill considered the plaintiff sustained aggravation of lumbar spine degenerative changes as a result of the incident.  He thought she is incapacitated for her pre-injury employment as a store assistant labourer.  Noting her described ongoing activity of exacerbated pain requiring a large level of analgesia, Mr Brownbill considered, on probability, the plaintiff would not be able to perform any employment for which she is suited in an ongoing or reliable fashion.  At this stage, her ongoing pain constituted a “failed back syndrome” and her symptoms were likely to persist into the foreseeable future.

263     Mr Brownbill commented on the CoWork report in a supplementary report of 27 June 2017.  In his view, the jobs suggested appear to adhere to the restrictions necessary; namely, in relation to heavy lifting, full spinal mobility, repeated bending or prolonged standing or sitting.

264     Mr Brownbill thought it would be reasonable from a neurosurgical point of view for the plaintiff to attempt a return to work program involving such positions in a graded fashion under close medical supervision to determine her responses.

265     Mr Brownbill thought it was not possible to state whether the plaintiff could continue with such employment, and the number of hours she could work would be dictated by her responses.  He thought this situation would apply for the foreseeable future.

266     Mr Brownbill confirmed it was appropriate for the plaintiff to be reviewed for treatment by a pain management clinic that had access to all relevant specialties.  It would be appropriate for such review to be carried out before any attempt to a return to work program.

Investigations

267     An x-ray of the lumbar spine of 23 June 2011 was reported to show lumbar lordosis being maintained.  There was slight disc space narrowing at L5-S1 and a gentle lumbar scoliosis, concave to the left.

268     There was a CT scan of the plaintiff’s lumbar spine carried out on 17 September 2012.  The clinical notes indicated there was a work injury one year ago with mild back pain previously.

269     It was reported that at L4-5, there was a mild broad-based disc bulge and more focal left paracentral and foraminal disc protrusion.  There was left lateral recess stenosis with disc placement of the bulging left S1 nerve root.  There was also a mild to moderate left neural exit foraminal narrowing, possibly compressing the exiting L5 left nerve root.

270     There was an MRI scan of the lumbar spine organised by Mr Etherington in July 2015.  It was reported there was L4-5 disc degeneration and mild diffuse bulge with bilateral neural foraminal narrowing, more so on the left side, contacting the exiting L5 nerve root on the left.

271     There was an x-ray of the lumbar spine and also a CT scan in July 2015.  While it was reported there was disc degeneration with narrow disc spaces, there was no significant bulge or protrusion.  There was mild to moderate lower lumbar facet joint degeneration and borderline canal dimensions at L4-5.

272     The plaintiff underwent a CT nerve root injection on 20 February 2017.

345     As at the said date, the plaintiff was not taking any medication and had last seen her chiropractor on 1 July 2011.  When she saw her general practitioner on that date, there was no mention of back of leg pain.

346     At the time of the Ikea incident, there was no residual incapacity or ongoing treatment.  As the plaintiff confirmed, she was fit and healthy at the time she commenced the Ikea job.[111] If back pain was persisting, she would have continued chiropractic treatment.[112]

[111]T37

[112]T43

Do the effects of the Ikea incident injury continue?

347     The next issue for determination is whether the Ikea injury continues to materially contribute to the plaintiff’s present back condition.

348     Counsel for the defendant submitted this was not the case: “There has now been a lot of water under the bridge and that water under the bridge shows a cessation of the work contribution to her presentation.”  In support thereof, counsel for the defendant relied on Mr Shannon’s view and “common sense”.[113]

[113]T140

349     It was submitted there is no link between the work with the employer and the plaintiff’s current condition given her ability to undertake heavy work at Grant Walker for eighteen months as she was shown performing freely on the film.[114]

[114]T141

350     Further, the film was relied on to support Mr Shannon’s view there had been an aggravation which had then ceased.[115] Counsel for the defendant described the work with Grant Walker as “eighteen months, which interrupted the plaintiff’s tale she had been in continuing pain”.[116]

[115]T59

[116]T60

351     It was submitted any suggestion there was a gradual deterioration in the plaintiffs back condition was not borne out by the objective contemporaneous records.[117]

[117]T141

352     The plaintiff attended her general practitioner on twenty occasions from late September 2012 to October 2013, during which time there was one complaint by her of back pain in March 2013.[118]  Whilst it was conceded there being no supervening event is a point in the plaintiff’s favour, it was submitted it is “not the ace of spades”.[119] There is simply a degenerative back that is “ticking along”.[120]

[118]T143

[119]T142

[120]T143

353     Further, counsel for the defendant submitted that the doctors who support an ongoing contribution from the Ikea injury not only do not know of the earlier sciatica, they also do not know of the heavy Grant Walker work.[121]

[121]T144

354     Taking into account all the evidence, I am satisfied however the plaintiff’s Ikea injury continues to contribute to her current back condition.

355     When Mr Scott saw the plaintiff in August 2012, he noted her pain from the Ikea incident had improved but not resolved.

356     Dr Kan, who had treated the plaintiff throughout, in his September 2012 report, linked the plaintiff’s ongoing symptoms with the Ikea incident.[122]  At that time, he said prophetically, if her symptoms do not improve with regular physiotherapy, he would advise her to be reviewed by a neurosurgeon.[123]

[122]T163

[123]T164

357     Whilst there is a gap in treatment by a general practitioner from late September 2012 to October 2013, save for one attendance in March 2013 when the plaintiff requested medication for back pain, I accept the plaintiff had ongoing back problems during this period.  Her apparent failure to mention this situation to her doctor was consistent with his advice of September 2012 that conservative treatment was appropriate.[124]

[124]T170

358     To get through her workday at Grant Walker, the plaintiff took Mersyndol regularly and at times had to wear a back brace.  At the time the plaintiff was filmed at work, she was requesting medication for her back from her doctor.  In the early months, the plaintiff had physiotherapy treatment but had to stop as she could not afford it.[125] 

[125]T164

359     I accept that despite ongoing back pain, the plaintiff pushed on with work as a matter of financial necessity until she was forced to cease when her back and left leg pain became unmanageable in October 2013 as she told Mr Carey on examination the following month.

360     At that stage, the plaintiff’s treating doctors recorded increasing back pain and specialist referrals commenced.

361     On 8 October 2013, Dr Alexander noted “ongoing left sciatic pain is ongoing still, after two years would like to see a specialist”.  The following month, the plaintiff was referred to the Austin Neurology and Lyrica was trialled.  That referral letter set out a history of two years of moderate to severe left leg pain that is present day and night.

362     On the 18 November 2013 examination, Dr Alexander also noted pain going down to the plaintiff’s left foot for the first time.[126]

[126]T172

363     Despite her ongoing significant back pain, the plaintiff resumed work in March 2014 as a part-time shop assistant at the butchers.  She continued in this role for about three months, with difficulty, requiring Panadeine Forte until she had to stop work due to ongoing lower back pain.[127]

[127]T107

364     The plaintiff continued to be prescribed OxyContin during 2014 and was referred to spinal surgeon, Mr Etherington, in April the following year.  After an epidural injection in December 2015, surgery was ultimately undertaken in June 2016.

365     As Dr Kan set out in his 2017 report, the plaintiff’s symptoms persisted to the stage where surgery was required.

366     While the onus is on the plaintiff to establish the incident injury continues to materially contribute to her current presentation, there is no evidence of any other supervening event or alternative call for the need for surgery for the plaintiff’s current significant lumbar problems.  There is no novus actus that changed the clinical picture. [128]

[128]T173

367     There is no medical evidence that the work at either Grant Walker or the butchers was of such significance to break the chain of causation of the Ikea incident to the plaintiff’s injury.

368     There is no medical evidence nor was the plaintiff cross-examined as to any event that intervened between the said date and the subsequent investigations, treatment and surgery undertaken.  In the absence of such evidence, it can be more readily accepted that the Ikea injury is a cause of the plaintiff’s current injury, incapacity, surgery and need for ongoing treatment.

369     Taking into account all the evidence, both contemporaneous and medico-legal, I am satisfied the Ikea incident contribution continues.

370     Mr Shannon is the only practitioner who does not share that view.  Following his one examination of the plaintiff in 2013, Mr Shannon found the Ikea incident could have aggravated the plaintiff’s back condition and that she was still experiencing some restriction of movement with spasm.  

371     It is difficult to understand how Mr Shannon, in his brief supplementary report of 2017, having been told of the plaintiff’s sciatic symptoms prior to the Ikea incident and noting her ability to perform moderately heavy work, then thought it was likely the aggravation of back pain ceased.  This view, not following a re-examination of the plaintiff, fails to take into account her ongoing difficulties with work at Grant Walker and also ignores the September 2012 CT findings.

372     Other medical practitioners do not share Mr Shannon’s view. 

373     When Mr Dunin saw the plaintiff in April 2013, he noted her symptoms had then improved, although not completely resolved.  In his view, the incident injury continued to contribute to her symptoms.

374     Having a history of previous back pain, Mr Dunin thought the plaintiff’s symptoms at that time, in keeping with nerve root compression, were quite different to the short episodes of back pain she had had in the past, and the most likely cause of the pain after the incident was a lumbar disc prolapse bulge, in keeping with the MRI scan findings.

375     In March this year, Mr Brownbill thought the plaintiff sustained aggravation of lumbar degenerative changes in the lumbar spine giving rise to the aggravation of lumbar spine degenerative changes with resulting ongoing pain for which she underwent surgery in 2016.

376     Whilst not given a history from the plaintiff, Mr Dooley was fully briefed with details of the plaintiff’s back condition prior to the Ikea incident when he saw her earlier this year.[129]

[129]See paragraphs [306]-[310] of this Judgment

377     Mr Dooley then concluded that during her work at Ikea, the plaintiff sustained a soft tissue injury to the lumbar spine that has involved some aggravation of the underlying disc degenerative disease.  He considered her current condition relates to the Ikea incident, the natural evolution of that disease and to a psychological reaction to that situation.[130]

[130]T169

378     Taking into account all the evidence, I am satisfied that once the lumbar disc was damaged in the Ikea incident, the plaintiff has had persisting back and left lower leg pain, ultimately culminating in the need for surgery and resultant incapacity.

Credit

379     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[131]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[131](2010) 31 VR 1 at paragraph [12]

380     Counsel for the defendant conceded credit was not really an issue but it was submitted it was more of a case of the plaintiff wanting to believe what would assist her case such as she was 100 per cent better before the Ikea incident.[132]  

[132]T134

381     As I indicated to the parties during the hearing, I found the plaintiff to be a witness of truth, an honest lady who did her best and did not overstate things.[133]

[133]T179

382     I accept that the plaintiff has had increasing back pain of fluctuating severity since the incident, leading to significant treatment from 2013 and ultimately surgery in 2016.  At present, she suffers from significant ongoing lower back pain and left leg pain.

383     As counsel for the defendant conceded, it would be difficult to resist a pain and suffering certificate where there was a compensable injury resulting in surgery.[134] 

[134]T23, T155

384     Further, the plaintiff continues to require significant medication for chronic pain including Lyrica, OxyContin and Endone – a factor which would “… according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[135]

[135]as Dodd-Streeton J described in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592

385     I accept the plaintiff’s back injury also results in profound consequences in terms of her physical mobility, problems with sleep and difficulty with all domestic activities.

386     The consensus of medical opinion is that the plaintiff no longer has a capacity for unrestricted physical work, a consequence which in itself is serious for a plaintiff with a background of largely unskilled and physical work.  

387     Having found the plaintiff suffered a compensable injury in the incident, the effects of which continue, I am satisfied that the consequences thereof are serious and grant leave to bring proceedings for damages for pain and suffering.

Loss of earning capacity

388     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

389     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings.

390 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

391     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

392     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

393     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak.[136]

[136](Supra) at paragraph [70]

394     I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.

395     Counsel for the defendant suggested the appropriate figure was $817 per week on an annualised basis – $42,484, 60 per cent of which is $490 per week.  It was conceded, on that figure, the plaintiff would succeed in her loss of earnings application if she could not work in excess of 20 hours per week in the jobs suggested.[137]

[137]T151

396     Counsel for the plaintiff ultimately did not put a figure, submitting that the plaintiff’s incapacity for employment was effectively total.

397     Counsel for the defendant submitted it would be hard to say that working 12 or 15 hours per week is the plaintiff’s true capacity when she is “in the throes of pain management”[138] and attempts are currently being made to wean her off strong painkilling medication.[139]

[138]T146

[139]T147

398     It was submitted the plaintiff gave a very good account of herself in the witness box.  She possessed a range of work skills and was not reliant on her physical capacity to earn.[140]

[140]T148

399     Whilst the plaintiff claims to be restricted in her ability to sit and stand, it was submitted she did not mention these issues as barriers to the suggested jobs when interviewed by Co Work.[141]

[141]T148

400     Reliance was placed on Dr Zhu’s original report where he was supportive of the plaintiff’s return to work in a number of roles.[142]  It was submitted the plaintiff had shown a reluctance to return to work when she queried Dr Zhu’s original opinion.[143]

[142]T149

[143]T150

401     It was submitted Dr MacBeth’s twelve hours a week was a starting point and that the plaintiff could work more hours with the appropriate restrictions[144] and that it was quite open to find the plaintiff would get back to full-time work in due course given her involvement in the pain management program and her resilience when she last had back pain.[145]

[144]T152

[145]T153

402     In all the circumstances, it was submitted the plaintiff would ultimately be able to work in a number of the suggested roles and would not suffer the requisite loss working the hours supported by Mr Dooley or on returning to full-time duties.[146]

[146]T154

403     Counsel for the plaintiff submitted that in all reality, the plaintiff has no capacity for suitable employment for the foreseeable future.  Dr Zhu has seen her only five times this year and not examined her.  In any event, he deferred to occupational physician, Dr MacBeth’s views as to the plaintiff’s very limited work capacity.

404     The plaintiff’s previous general practitioner, Dr Kan, saw her many times to 15 September 2016 when he thought she was not fit to work for the foreseeable future.[147]

[147]T176

405     Whilst Mr Dooley thought the plaintiff would have a physical capacity to do a number of the suggested jobs, he considered any return to work should be on a graduated basis with a physical capacity to increase to 20 to 24 hours a week. He did not consider the plaintiff was currently capable of these hours.  Further, he did not consider the effect of the plaintiff’s strong painkilling medication on her work capacity.

406     In my view, the plaintiff would be able to work only minimal hours per day given the unpredictable nature of her back pain and her very limited sitting and standing tolerances as were in fact noted in the CoWork report.  

407     The plaintiff would not be able to attend work on a reliable basis.  When at work, her performance would be significantly affected by her strong painkilling medication and resultant problems with memory and fatigue as described by Dr Macbeth.

408     I accept the plaintiff’s evidence that she would like to work again, as evidenced by her good work history, but it would depend on how her pain went and what happened with pain management.  Further, it is relevant when considering this issue, the plaintiff’s evidence, of increasing pain and that depending on her ability to sleep during the night, she is often totally immobile the following day.  Although there are attempts being made to reduce her OxyContin intake, when that was done, her pain increased.

409     In these circumstances. I am not satisfied that the plaintiff could participate in any of the five suggested jobs by CoWork or other alternate employment[148] to such an extent that she would not suffer the requisite loss.

[148]The view of vocational assessor, Paul Hartley, 22 June 2017

410     I am satisfied that the plaintiff’s present lumbar impairment is permanent, as a number of medical practitioners have opined, despite her being in the initial stages of a pain management program.  To date, that program has only involved an attempt to reduce her OxyContin intake, which continues. 

411     Pain management, of its nature, is directed towards management of a patient’s pain. There is no medical evidence that such a program would significantly increase the plaintiff’s work capacity where she now suffers from “failed back syndrome” as Mr Brownbill described. 

412     I am satisfied that the plaintiff’s significant lumbar problems are likely to continue for the foreseeable future and that any pain management program would not significantly alter the situation that she has suffered the requisite loss of earning capacity.

413     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

414 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).

415     Accordingly, I also grant the plaintiff leave to bring proceedings for loss of earning capacity.

416 Whilst I am satisfied that the pain and suffering consequences of the plaintiff’s back impairment are serious, having satisfied the test laid down by the Act in relation to loss of earning capacity, she is at large to make a claim for damages (ie both for pain and suffering and loss of earning capacity).[149]

[149]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147]; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170

417     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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