Prasad, Indar v Delphi Automotive Systems Aust. Ltd
[2009] VCC 82
•27 February 2009
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI 07 03660
| INDAR PRASAD | Plaintiff |
| v | |
| DELPHI AUTOMOTIVE SYSTEMS | Defendant |
| AUSTRALIA LTD |
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| JUDGE: | Wodak |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20, 21 October 2008 |
| DATE OF JUDGMENT: | 27 February 2009 |
| CASE MAY BE CITED AS: | Prasad, Indar v Delphi Automotive Systems Aust. Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0082 |
REASONS FOR JUDGMENT
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Catchwords: serious injury application – s134AB Accident Compensation Act – pain and suffering serious injury admitted – pecuniary loss serious injury in issue
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with | Maurice Blackburn |
| Mr D Purcell | ||
| For the Defendant | Mr A Middleton | Minter Ellison |
1
27/02/2009VCC0082.doc
Introduction:
1 Indar Prasad began working for Delphi Automotive Systems Australia Ltd, a car parts manufacturer, as a process worker and team leader in 2001. Ms Prasad claims that she injured her cervical spine after some heavy lifting during the course of her work with Delphi on 21 March 2005. She claims that this is a “serious injury” within s134AB Accident Compensation Act.
2 Delphi admits that Ms Prasad suffered a serious injury as to pain and suffering. Ms Prasad seeks leave to commence a proceeding for damages for pecuniary loss, arising from this injury. DeLphi disputes that Ms Prasad has a serious injury concerning her claim for pecuniary loss.
The evidence
(i) relied on by Ms Prasad 3 Mr Mighell relied on an affidavit sworn by Ms Prasad[66], and in addition, tendered the following material:
[66] Sworn 15 May 2007, PCB pp13-17
No Author Description Date PCB pages
1. Dr R Mirhom Medical report 14-09-06 018-019 2. Dr R Mirhom Medical report 20-08-08 020 3. Dr R Mirhom Medical report 04-09-08 021 4. Dr M Robb Medical report 22-06-06 022 5. Dr R Freilich Medical report 21-07-06 023 6. Dr S Hall Medical report 08-11-06 024-025 7. Mr M Rogers Medical report 28-08-06 026-028 8. Mr M Rogers Operation note 20-10-05 029 9. Mr M Rogers Medical report 18-08-05 030
10. Mr M Rogers Medical report 18-08-05 031 11. Dr T Lim Medical report 21-05-07 032-039 12. Dr T Lim Medical report 17-02-06 040 13. Dr T Sacks Medical report 27-06-08 041-048 14. Dr C Thomas Medical report 06-08-08 049-052 15. Ms K Angel Vocational assessment 03-09-08 053-063 16. Dr R Bittar Medical report 13-08-08 064-068 17. Mr R Carey Medical report 15-02-07 069-073 18. Dr J Douglas Medical report 17-i-07 074-082 19. Dandenong EEG EMG Study report 20-04-06 083 20. Dandenong EEG EMG Study report 06-06-07 084 21. Dr V Healy MRI report 09-05-05 085 22. Dr A McKenzie MRI report 16-05-07 086 23. Dr A McKenzie MRI report 12-01-07 087 24. Dr C Wreidt CT scan report 29-03-05 088 25. Dr P James CT scan report 16-09-06 089 26. Dr C Wreidt x-ray report 31-01-06 090 27. Dr G Koulouris x-ray report 02-06-05 091 28. Dr M Jain Ultrasound report 24-03-05 092 29. Summary of taxation Various 093 30. Dr L Sedal Medical report 22-03-07 094-098 (ii) relied on by Delphi
4 Mr Middleton tendered the following material:
No Author Description Date DCB pages
1. Resolve Facsimile 13-09-06 07 Rehabilitation
Services
2. Mr D McKenzie Return to work offer 15-06-05 035-037 3. Mr D McKenzie Return to work offer 12-07-05 038-040 4. Mr D McKenzie Return to work offer 08-08-05 041-043 5. Mr D McKenzie Return to work offer 12-09-05 044-046 6. Return to work plan 23-08-06 047-049 7. Return to work plan 28-08-06 050-052 8. Return to work plan 04-10-06 053-055 9. Return to work plan 05-12-06 056-059 10. Return to work plan 16-01-07 060-063 11. Return to work plan 22-01-07 064-067 12. Return to work plan 06-03-07 068-070
13. Dr P Stevenson Medical report 15-09-08 090-097 14. Dr P Stevenson Medical report 15-09-08 098-102 15. Mr I Jones Medical report 07-09-07 103-107 16. Mr I Jones Medical report 29-09-08 108-110 17. Dr S Kennedy Psychology report 31-05-07 111-121
Ms Prasad’s background:
5 Indar Prasad was born in Fiji in 1970. She completed the equivalent of year 12 before coming to live in Australia when aged about 18. Ms Prasad completed one year of a computer programming course[67], and then began factory work, as a machinist. At the time of the hearing, she was about 38.
[67] Obtaining a diploma in data principles – see transcript p17
6 Ms Prasad is married but separated from her husband.
The nature of Ms Prasad’s employment with Delphi
7 Ms Prasad worked for Delphi, full time, as a machinist and team leader. Her work involved, from time to time, repetitive heavy lifting. This involved pulling heavy pallets of materials and lifting containers of parts onto a production line[68].
[68] See Ms Prasad’s affidavit, paragraph 6, PCB p14
8 In early March 2005, Ms Prasad experienced pain in her right shoulder, and saw Dr Mirhom, who certified that she should not work for three days[69]. On 21 March 2005, Ms Prasad was involved in two separate lifting episodes, as part of her normal duties. She developed pain in her right shoulder, which she reported.
[69] See transcript p19
9 Ms Prasad saw the factory doctor, Dr Robb, and was given a certificate for six days off work, and prescribed physiotherapy, anti inflammatory and analgesic medication. On review, she had not improved.
10 The course of Ms Prasad’s medical treatment will be discussed further shortly. She underwent surgery on her neck on 20 October 2005.
Ms Prasad’s present circumstances
11 Ms Prasad resumed work in about September 2006, performing clerical work[70]. At first, she worked for two hours a day, and has gradually increased her work to four hours a day, for a total of twenty hours a week. She now does data entry work.
[70] See Ms Prasad’s affidavit, paragraph 16, PCB p16, and transcript pp13-14
12 Ms Prasad finds that after about an hour, she develops pain in her neck and right shoulder, extending to the fingers of her right hand, where she has pins and needles. Although she is seated when working, she has to stand and exercise to reduce the pain. She takes a ten minute break every hour. After four hours of work she is:
“…Very stressed and very painful.”[71]
[71] See transcript p15
13 Ms Prasad said that she is coping with her present duties, and with working 20 hours a week[72]. She was asked further about her ability to increase her hours of work:
[72] See transcript pp22-23
“In terms of dong the data entry you're able to do that on the schedule that you're
working now all right? --- Yes.
Is there any reason why you couldn't attempt to increase your hours? --- At the
moment I'm struggling with four hours to do that work within four hours.
So if you're able to go slower and do it over five hours if necessary, is there any
reason why that couldn't be done?-
--(No audible response.)
If you were able to do it slower than you're required to now?-- -Yes, I'll probablybe in a lot of pain.”[73]
[73] See transcript p27
14 Ms Prasad says that she continues:
“…to suffer from persistent ongoing neck pain. I have pain that radiates down my right arm into my hand. I have pins and needles in some of the fingers in my hand and my right thumb.
The pain I experience in my neck is made worse by holding my neck in one position for a long period of time or twisting my neck. It is made worse by repetitively using my arms. My right arm is now weaker.
I have great difficulty sleeping. I need medication to sleep because of neck pain. If I lay on my right arm and shoulder, the pain is severe.
I have difficulty doing normal domestic activities that I had previously enjoyed such as gardening and cooking. I can drive a car but after a long period of time my pain increases.
I am restricted in my ability to carry out social activities that I had previously enjoyed…”[74].
[74] See Ms Prasad’s affidavit, paragraphs 19-23, PCB pp16-17
15 When Ms Prasad gets home from work, she applies heat packs, has a hot shower, and performs exercises to control her pain. One of the prescription medicines she takes, Lyrica, makes her drowsy, although she is now coping better with it. Ms Prasad does not experience the same level of pain on weekends as she does on the week days, when she works [75].
[75] See transcript pp15-16
16 During cross examination of Ms Prasad, Mr Middleton showed some video surveillance film of Ms Prasad[76]. I did not regard the film as showing any inconsistency with the evidence of Ms Prasad such that her credibility was damaged, or that she was shown to have physical capacity, generally, different to that about which she testified.
[76] Exhibit 1, taken on 30, 31 August and 1 September 2007
17 Ms Prasad continues to see Dr Mirhom and Dr Lim, and to take Lyrica and Endep, both prescription medications.
Ms Prasad’s medical treatment and diagnosis
(i) Medical evidence relied on by Ms Prasad 18 The course of Ms Prasad’s medical management commenced when she saw Dr Robb on 23 March 2005. He diagnosed a pulled right trapezius muscle, with pain radiating down her neck, and anteriorly to her right pectoral muscles. All movements of the right shoulder were painful.
19 When Dr Robb reviewed Ms Prasad on 28 March 2005, she had developed parasthesiae down her right arm, following the distribution of C6-7-8, and was tender over C6-7-8 and the cervical paravertebral muscles. Dr Robb suspected a cervical disc lesion. He ordered a CT scan, which was consistent with long standing osteophytic development at C5-6.
20 Dr Robb considered that the:
“…cervical abnormality could have been aggravated by her lifting at work, but the
lifting on the day did not cause the osteophyte – it was pre-existing.”[77]
[77] See Dr Robb’s report, PCB p22
21 Later investigations demonstrated that the osteophyte extended into the right C6 nerve root foramen, compromising and protruding into the C6 nerve root[78].
[78] See Dr Mirhom’s report, PCB p18
22 On 29 April 2005, Ms Prasad was seen by Dr Freilich, neurologist, referred by Dr Mirhom. Dr Freilich considered that her injury was a right C6 radiculopathy[79], and referred Ms Prasad to Dr Hall. He considered that the location of Ms Prasad’s pain was between the right side of her neck and the point of her right shoulder, with little pain extending down her right arm. He did not regard Ms Prasad as presenting with true shoulder pain or rotator cuff tendinitis, but rather that she had pain referred from her neck.
[79] See Dr Hall’s report, PCB p24
23 Dr Hall believed that Ms Prasad’s employment, and especially the duties she performed on 21 March 2005 led to the development of the pain emanating from her neck[80]. Dr Freilich also believed that Ms Prasad’s injury was the result of her work[81].
[80] See Dr Hall’s report, PCB p24
[81] See Dr Freilich’s report, PCB p23
24 Dr Freilich also referred Ms Prasad to Mr Rogers, neurosurgeon, who first saw her on 18 August 2005, and advised surgical intervention. This was undertaken on 20 October 2005, based on his diagnosis of C6 nerve root compression. The procedure was that of cervical spinal cord nerve root decompression with an interbody graft[82].
[82] See Mr Rogers’ Operation note, PCB p29
25 Mr Rogers considered that the work incident aggravated pre-existing degeneration in Ms Prasad’s cervical spine, causing nerve root compression, as well as referred right arm and hand pain[83].
[83] See Mr Rogers’ report, PCB p28
26 Mr Rogers referred Ms Prasad to Dr Lim, a consultant in rehabilitation and pain medicine, and he first saw Ms Prasad, after the operation, on 30 November 2005, and last reviewed her on 2 March 2007 at the time of his report[84]. He was due to see her again, but there is no later report.
[84] Dated 21 May 2007, PCB p32
27 Dr Lim’s involvement with Ms Prasad was because of her chronic right sided neck/shoulder girdle pain. He considered that her pain was due to a combination of myopathic muscle pain around her neck and shoulder girdle, which had become hyperirritable, resulting from her initial injury and the consequence of the operation[85]. In his opinion, Ms Prasad’s presentation was consistent with myofascial pain syndrome, a chronic condition, usually regional in distribution. It involves trigger points, which refer pain. In his view, the location of the pain experienced may not be where the pain is coming from.[86] He did not believe that the condition was susceptible to cure, and required a normalisation of lifestyle. He warned that unless:
“…the chronic pain sufferer can accept this compromise and can be an active participant, both physically and psychologically in the programme, then prognosis is poor. This can then lead to increasing entrenchment in a Chronic Pain Syndrome, where one’s life is totally focussed on and dominated by the pain, leaving the sufferer dependent on the health system, depressed and significantly disabled, even if the condition causing the pain is relatively innocuous.”[87]
[85] See Dr Lim’s report, PCB p34
[86] See Dr Lim’s report, PCB, p34
[87] See Dr Lim’s report, PCB p36
28 Dr Lim referred Ms Prasad for physiotherapy, and prescribed a nerve membrane stabiliser with pain reducing effects. He ceased physiotherapy, which was proving ineffective. On 13 June 2006, Ms Prasad commenced a two week in-patient intensive pain rehabilitation program, which gradually achieved some benefit for her. He added to her medication an anti depressant, in low dose, to combat chronic pain.
29 Dr Sacks, a consultant psychiatrist, began treating Ms Prasad on 13 June 2007. He considered that she showed features of a chronic pain disorder associated with both psychological factors and sensitization of her Central Nervous System pain pathways, which was maintained by local muscle hyperirritability. He considered that this was in response to injury to her C5-6 nerve root[88]. In addition, Ms Prasad’s persistent intractable pain had led to the development of a secondary adjustment disorder with mixed anxiety and depressed mood[89].
[88] See the report of Dr Sacks, PCB, p45
[89] See the report of Dr Sacks, PCB p46
30 Dr Clayton Thomas, a consultant in rehabilitation and pain management provided a medico-legal assessment of Ms Prasad, whom he saw on 5 August 2008. He diagnosed aggravation of the C5-6 disc injury, from which there developed a right C6 radiculopathy[90], resulting from compression of the right C6 nerve root. Like Dr Lim, he thought that Ms Prasad had myofascial pain syndrome, which accounted for the significant pain and stiffness of her right shoulder. He added:
“The diagnosed injury is organic in nature. The presentation points away from
psychological interference.”[91]
[90] This was also the diagnosis of Mr Bittar: see his report PCB, p67
[91] See the report of Dr Thomas, PCB p51
31 He thought that her prognosis was for persistent pain and disability. Dr Thomas did not regard Ms Prasad as “work shy”. In his opinion, future medical treatment should be supportive and palliative[92].
[92] See the report of Dr Thomas, PCB p52
32 Mr Bittar, neurosurgeon, also assessed Ms Prasad for medico-legal purposes. He saw her on 13 August 2008. Apart from his diagnosis of right C6 radiculopathy, with persistent neck and arm pain, Mr Bittar also diagnosed cervicogenic headaches, arising from Ms Prasad’s neck, and right carpal tunnel syndrome. He considered that the radiculopathy and cervicogenic headaches were work related, in which the injury at work on 21 March 2005 was the dominant contributing factor. He thought that her prognosis was guarded, and that she would:
“…almost certainly suffer from significant pain and disability into the foreseeable
future.”[93]
[93] See the report of Mr Bittar, PCB p68
33 Another assessment of Ms Prasad was undertaken, by Mr Carey, orthopaedic surgeon, who saw Ms Prasad on 14 February 2007. Although Mr Carey considered that clinically Ms Prasad had injured her C5-6 intervertebral disc with probable development of symptoms relating to C6 nerve root compression, but:
“…her symptoms were also of a much more widespread distribution.”[94].
[94] See the report of Mr Carey, PCB p71
34 Mr Carey found no objective clinical signs of radiculopathy. He explained Ms Prasad’s symptoms in her right upper arm and shoulder as pain referred from the neck injury[95].
[95] See the report of Mr Carey, PCB p72
35 On 16 January 2007, Dr Douglas, a consultant psychiatrist, interviewed Ms Prasad, and diagnosed that she had a degenerative disorder of the cervical spine, producing pain and some disability. She presented with some associated symptoms of irritability and depression, but not to such a level as to amount to an adjustment disorder or any other psychiatric disorder[96].
[96] See the report of Dr Douglas, PCB p79
36 Dr Sedal, neurologist, reviewed Ms Prasad on 22 March 2007. He confirmed his diagnosis of asymptomatic pre-existing degenerative change at C5-6, and injury on 21 March 2005 at work, lifting boxes, in which Ms Prasad suffered a disc prolapse:
“…irritating and compressing the right C6 nerve root.”[97]
[97] See the report of Dr Sedal, PCB pp96-97
37 Dr Sedal considered that Ms Prasad’s symptoms continued, after surgery and rehabilitation. He believed that her work had significantly contributed to her condition and that it continued to do so materially[98]. Dr Sedal considered that Ms Prasad’s condition was stable, and her prognosis guarded. Like Mr Carey, Dr Sedal found no signs of radiculopathy[99].
[98] See the report of Dr Sedal, PCB p96
[99] See the report of Dr Sedal, PCB p97
(ii) Medical evidence relied on by Delphi 38 On 3 September 2007, Dr Stevenson, a consultant physician, assessed Ms Prasad. He thought that a work related injury caused by the lifting duties performed by Ms Prasad was “highly speculative”, and that she had non specific arm pain and may have adhesive capsulitis in her shoulder joint. He too did not find any basis for diagnosing radiculopathy. Dr Stevenson considered that there existed:
“…background distress and marital breakdown which are risk factors for non-
specific arm pain.”[100]
[100] See the report of Dr Stevenson, DCB p95
39 In Dr Stevenson’s view, non work related factors were “quite significant” and likely to cause emotional distress and amplify pain. As well, he thought that underlying degenerative disease is predominantly genetic[101]. He regarded the prognosis for Ms Prasad as “medically good”[102].
[101] See the report of Dr Stevenson, DCB p95
[102] See the report of Dr Stevenson, DCB p96
40 Dr Stevenson reviewed Ms Prasad on 15 September 2008. He regarded Ms Prasad’s statement that her condition is unchanged, or worse since he had seen her previously as “inconsistent with physical injury”, and suggestive of psychosocial factors, the impact of which he considered to be “very substantial”[103]. He regarded her emotional distress as considerable. His assessment remained as given in his earlier report.
[103] See the report of Dr Stevenson, DCB p100
41 Mr Ian Jones, orthopaedic surgeon, saw Ms Prasad on two occasions, on 3 September 2007, and then on 29 September 2008. He accepted that Ms Prasad sustained a work related injury on 22 March 2005, when she aggravated pre-existing degenerative changes, particularly at C5-6. He thought that Ms Prasad had some functional symptoms, which affected her presentation as well as her work capability[104].
[104] See the report of Mr Jones, DCB pp103-107
42 On his review of her, Ms Prasad reported that her condition had deteriorated. Once again, Mr Jones considered that Ms Prasad’s presentation had functional symptoms –
“…the reported parasthesia affecting the whole of the arm including the anterior chest wall in my opinion has no anatomical basis. She otherwise gives no indication of any non organic factors in affecting her recovery and capacity for work.”[105].
[105] See the report of Mr Jones, DCB p109
43 Mr Jones considered that the prognosis for Ms Prasad was likely to be:
“…one of persisting symptoms in her neck and right shoulder girdle and arm. I am unsure as to the basis of her claimed symptoms and numbness affecting the right arm and hand, as I believe that there is no organic basis for these symptoms.”[106]
[106] See the report of Mr Jones, DCB p110
44 On 24 May 2007, Dr Simon Kennedy, clinical psychologist completed an evaluation of Ms Prasad. He considered that she appeared genuine. He noted that Ms Prasad was divorced in 2004, and felt that she had been used by her ex partner to enable him to get to Australia, and that in 2006, she had undergone a complete hysterectomy. This had been difficult for her, although she had support from her parents and family, who lived in Australia.
45 Dr Kennedy diagnosed an adjustment disorder with mixed anxiety and depressed mood, and chronic pain disorder with psychological and physical factors. He thought that her psychological factors were largely due to her feeling of a loss of independence, her pain, and the alteration to her work. He did not think that there was any pre-existing psychological disorder. He did not consider that Ms Prasad’s psychological disorder itself led to any incapacity[107].
[107] See the report of Dr Kennedy, DCB pp114-116
(iii) Medical assessment of Ms Prasad’s capacity for work 46 Not all of the doctors whose reports have been discussed have expressed views about Ms Prasad’s capacity for work.
47 Dr Mirhom, Ms Prasad’s general practitioner considered that Ms Prasad was only able to perform her modified duties –
“…five days a week with no lifting more than five kg and no repetitive movements
with the upper limbs and no reaching above the shoulders.”[108]
[108] See the report of Dr Mirhom, PCB p20
48 Dr Mirhom clarified that the present modified work capacity of Ms Prasad was for four hours a day for five days a week[109].
[109] See the report of Dr Mirhom, PCB p21
49 Mr Rogers, the treating surgeon expressed the opinion less than 12 months after her operation that Ms Prasad could resume “suitable employment”, which did not entail repetitive bending, twisting and lifting. He thought that she could resume her pre-injury duties, but that this was not advisable[110].
[110] See the report of Mr Rogers, PCB p28
50 As at 2 March 2007, Ms Prasad was working for 4 hours a day, 4 days a week in office-based duties. Dr Lim regarded that as representing her maximum capacity, as long as her duties were varied and non repetitive light duties. For her to be able to continue working, Ms Prasad would need to be provided with suitably assessed office-based work.[111]
[111] See the report of Dr Lim, PCB pp38-39
51 The psychiatrist, Dr Sacks, assessed Ms Prasad as permanently disabled by the physical and psychological sequelae of her injuries, which included the chronic, severe pain in her neck and right shoulder. He thought she was precluded from returning to her pre-injury duties, or from engaging in full time work for which she is qualified by education, training and experience. He considered her capable of part-time clerical work[112].
[112] See the report of Dr Lim, PCB p47
52 As at 6 August 2008, Dr Thomas thought that Ms Prasad would find it difficult to perform manual work. He thought that she was capable of restricted duties, with lifting of up to 4kgs, for 12 hours a week. He thought it reasonable that she could continue to perform office work for 20 hours a week. He explained that the restriction is permanent, and based on the organic nature of her injury[113].
[113] See the report of Dr Thomas, PCB pp51-52
53 Mr Bittar’s assessment of the capacity of Ms Prasad was made about a week after that of Dr Thomas. He considered that there should be restrictions on her work because –
“…she is unable to lift objects weighing more than 2 or 3 kgs with her right arm and cannot engage in any repetitive neck or right upper limb movements. She is also unable to place her neck in positions of flexion or extension for more than a few minutes without experiencing significant pain. In terms of the number of hours she can work on modified duties, her upper limit appears to be 15-20 hours per week. This may deteriorate in the future if her symptoms continue to worsen.
In my opinion, the restrictions identified, as well as her partial incapacity for work
and total incapacity for pre-injury employment are permanent.”[114]
[114] See the report of Mr Bittar, PCB p68
54 On 22 March 2007, Dr Sedal considered Ms Prasad was able to work for not more than four hours a day on light duties. Over time, and with further rehabilitation, he thought that she may be able to increase these hours. He thought it highly unlikely that she could return to her previous unrestricted duties. Dr Sedal thought that suitable work would not include lifting, straining or activities involving a fixed or rapidly moving position of her neck and which could be performed with only limited use of her painful and numb right arm[115].
[115] See the report of Dr Sedal, PCB p97
55 When he examined Ms Prasad on 3 September 2007, Dr Stevenson saw no reason why she could not resume full time work on a restricted basis. He thought she could perform her pre-injury work[116]. Dr Stevenson appears to have misinterpreted the qualified observation of Mr Rogers as to Ms Prasad’s work capacity[117].
[116] See the report of Dr Stevenson, DCB p96
[117] See the report of Mr Rogers, PCB p28 and the report of Dr Stevenson, DCB p96
56 I do not accept Dr Stevenson’s interpretation of Mr Rogers’ assessment, made within one year of the operation, that Ms Prasad could return to her pre- injury work, but which was “probably not advisable”.
57 On reviewing Ms Prasad on 1 September 2008, Dr Stevenson considered that she could do more than the part time light work she was then undertaking. He considered that Ms Prasad was capable of administrative work, and that psychosocial factors were important as well as the underlying constitutional condition[118].
[118] See the report of Dr Stevenson, DCB p101
58 On 3 September 2007, Mr Jones assessed Ms Prasad as able to continue working at her then current level, and thought that she may be able to gradually increase her hours. He thought she would manage full time clerical or supervisory work in the future, without any requirement to lift, push or carry[119]. She was unfit to resume her former duties, and it was inadvisable that she undertook heavy physical work because of the state of her cervical spine[120].
[119] See the report of Mr Jones, DCB p106
[120] See the report of Mr Jones, DCB pp106-107
59 On 29 September 2008, Mr Jones saw Ms Prasad again, and thought that there were some functional components in her presentation. He thought that Ms Prasad could then undertake full time clerical work, but that she could never return to her former work. He also considered that she was capable of light processing work, without heavy pulling, pushing, lifting or extreme use of her neck, and that she could do so at the present time and in the future[121].
[121] See the report of Mr Jones, DCB p110
The legal principles applying to this application:
60 This application is governed under s134AB(1) and (2) Accident Compensation Act, which, so far as is relevant provides:
“(1) A worker who is, or the dependants of a worker who are or may be, entitled to
compensation in respect of an injury arising out of or in the course of, or due to the
nature of, employment on or after 20 October 1999—
(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except—
(iii) . . . . . .as permitted by and in accordance with this section; and
(b) shall not, in proceedings in respect of the injury recover any damages for
pecuniary loss except—(ii) . . . . . .as permitted by and in accordance with this section.”
(2) A worker may recover damages in respect of an injury arising out of, or in thecourse of, or due to the nature of, employment if the injury is a serious injury and
arose on or after 20 October 1999.”
61 It is for Ms Prasad to demonstrate that the injury is a serious injury, on the balance of probabilities[122]. A “serious injury” for the purpose of this application is defined in sub-section (37) to mean:
“(a) permanent serious impairment or loss of a body function;”
[122] see s134AB(19)(a)
62 In sub-section (37) “serious” and “severe” are explained in sub-section (38):
“(b) the terms "serious" and "severe" are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function,
disfigurement, or mental or behavioural disturbance or disorder, as the case
may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or
behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be
held to be serious for the purposes of sub-section (16) unless the pain and
suffering consequence or the loss of earning capacity consequence is, whenjudged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
* * * * * * * * * *
(e) where a worker relies upon paragraph (a), (b) or (c) of the definition of
serious injury in sub section (37), the Authority or self-insurer shall not grant
a certificate under sub-section (16)(a) and a court shall not grant leave under
sub-section (16)(b) on the basis that the worker has established the loss ofearning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) at the date of a decision under sub-section (16)(a) or at the date of the
hearing of an application under sub-section (16)(b), the worker has a loss of
earning capacity of 40 per centum or more, measured (except in the case of a
worker referred to in section 5A(7) or a worker under the age of 26 years at
the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in section 5A(7) or a workerunder the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning
capacity which will be productive of financial loss of 40 per centum or more;
(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing the worker's gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date with 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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise;
(j) the assessment of "serious injury" shall be made at the time that the
application is heard by the court.”
63 In sub-section (37), “permanent” means “likely to persist in the foreseeable future”. There must also be the probability that the impairment “will last and not mend or repair – or at least not to any significant extent” [123].
[123] see Barwon Spinners, per Phillips JA for the Court at paragraphs 18 and 19
64 In Barwon Spinners, Phillips J A explained that[124]:
[124] see Barwon Spinners, per Phillips JA for the Court at paragraphs 33 and 34; see also Chernov J A in Grech v Orica Australia Pty Ltd [2006] VSCA 172, par 2, and Ashley J A, par 9
“…one can scarcely proceed to consider the consequences to the Plaintiff of either the injury or the impairment before one has identified precisely the nature and extent of the injury relied upon and of the consequent impairment of a body function said to have been produced. A necessary part of that task of identification will be to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future. Only then, it seems to us, can one proceed to the inquiry about the consequences for the Plaintiff: are the consequences such that they satisfy the "very considerable " test set forth in paragraphs (b) and (c)?
Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to last for the foreseeable future; and thirdly, are the consequences for the Plaintiff such as to satisfy the "very considerable" test? If the answer to the second or third of these is no, the injury is not a serious injury as defined by paragraph (a) of sub-s.(37). If the answer to both is yes, it is a serious injury, but then one has identified an impairment which is both permanent and serious (as defined) and the fact that the impairment is permanent will obviously have been a consideration when weighing the consequences; after all, they are the consequences of that impairment. It is hardly likely, if the impairment of the body function will probably last for the foreseeable future, that the consequences upon which the Plaintiff relies to satisfy the "very considerable" test will be otherwise.
Having given the matter much thought, we think it enough to say this: that the impairment of a body function will answer the description "permanent serious impairment" if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the "very considerable" test, is permanent, in the sense of likely to last for the foreseeable future. That sufficiently couples both adjectives - permanent and serious (as defined) - and
beyond that it seems unnecessary to go. Certainly nothing in these four appeals raised any problem in that regard.”
(emphasis added).
65 Thus it is necessary to:
(a)
identify a compensable injury, that is one which arose on or after 20 October 1999;
(b) assess the nature and extent of that injury; (c)
ascertain the impairment or loss of body function resulting from the compensable injury;
(d) determine whether the impairment or loss is “permanent”; and (e)
decide whether the impairment or loss is “serious”, that is, at least “very considerable” for the Plaintiff as to –
(i) pain and suffering and/or
(ii) pecuniary loss
by comparison with other cases; and
(f) decide as to pecuniary loss, whether the Plaintiff has established a loss of earning capacity of 40% or more, by comparing “after
injury earnings” with “without injury earnings”, and whether, with
retraining or rehabilitation, the Plaintiff would have a capacity for
employment which, if exercised, would result in earning more
than 60% of gross income.
66 I must decide whether Ms Prasad has suffered serious injury taking account of all the evidence[125]. As Ashley JA explained, this requires resolution of the issues on the evidence, rather than by –
“…trial by doctors’ opinions; nor a trial in which relevant questions
were to be decided on the footing, in effect, that medical opinion didnot of itself provide answers to those questions.”[126][125] see Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 17, per Ashley JA
[126] see Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at 611, par 35 per Ashley JA
67 I must be persuaded that Ms Prasad has a physically based impairment or loss of function the consequences of which are serious in terms of pain and suffering or loss of earning capacity, so as to satisfy the definition of “serious injury” under sub section 37(a)[127]. The same test applies with appropriate adaptation to an application under sub section 37(c) for permanent severe mental or permanent severe behavioural disturbance or disorder.
[127] see Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, par 18, per Ashley JA
68 Both parties have conducted the case on the basis of a physical injury, and symptoms caused by organic injury. There is no need to go beyond the way in which the case was conducted.
The issues to be resolved:
69 Delphi concedes that Ms Prasad has a serious injury as to pain and suffering, but disputes that Ms Prasad has a serious injury as to economic loss.
70 Put simply, Delphi’s position is that Ms Prasad is at present working for four hours a day for five days a week on restricted duties. The question is whether she can either increase her hours in her present type of work, or engage in some other type of work. Mr Middleton contends that Ms Prasad must establish a loss of earning capacity of 40% or more, by comparing her “after injury earnings” with “without injury earnings”, and show that, with retraining or rehabilitation, she would not have the capacity for employment which, if exercised, would result in earning more than 60% of gross income.
71 Mr Mighell contends simply that the present level of restricted work Ms Prasad is performing represents the maximum extent to which she is and will remain able to work.
72 Mr Mighell argues that Ms Prasad suffered an identifiable organic injury with identifiable consequences. He submits that there is no need to “disentangle” the organic from any non-organic basis, if those consequences can be identified, which he submits is so in this case.
73 Mr Middleton does not dispute this proposition or that it applies in this application.
Findings
(a) Has Ms Prasad suffered a serious injury, and is so what is the body function lost or impaired?
74 As Delphi has conceded that Ms Prasad has suffered a serious injury as to pain and suffering, the starting point is that identification of the injury has been made. The injury diagnosed by the treating surgeon, Mr Rogers, is compression of the C6 nerve root. That diagnosis was agreed to by most of the doctors whose reports have been discussed, but not by Dr Stevenson, and perhaps not by Mr Jones.
75 I accept Mr Rogers’ diagnosis of a C6 nerve root compression, supported as it is by his operation findings. It is consistent with the opinions of a number of other medical examiners.
76 In my view compression of the C6 nerve root is the relevant injury. Delphi’s admission of that for the limited purpose of pain and suffering is sufficient. Even without such a concession, I am satisfied on all of the evidence that this is the injury suffered by Ms Prasad as a result of the incident at work on 21 March 2005.
77 I fiind that this injury has led to an impairment of the function of Ms Prasad’s cervical spine, and her neck. I am satisfied that the injury and the resultant impairment of the function of Ms Prasad’s cervical spine and neck has produced limitations on Ms Prasad’s activities.
78 I am satisfied that the operation performed by Mr Rogers was necessitated by this injury, which arose out of the incident on 21 March 2005, and that Ms Prasad was, and remains unable to resume working in the capacity in which she was working at the time of her injury, because of the injury, and the resultant impairment of the function of her cervical spine and neck. The strong weight of medical opinion is that Ms Prasad should not resume her former work. I accept these opinions.
79 I reject the proposition that Mr Rogers considered that Ms Prasad could return to her former work. In my view his qualifying words that it would be inadvisable for her to do so really means that she should not do so. In any event, his opinion was based on seeing her comparatively soon after the operation, and before she had resumed any work. He has not assessed Ms Prasad at any time recently, and his opinion carries little weight for this reason.
80 Dr Stevenson’s finding that the proposition that Ms Prasad suffered a work related injury caused by her lifting duties was highly speculative does not reconcile with the concession by Delphi that Ms Prasad has suffered a serious injury. That, on its own, sufficies to detract from reliance on the opinion of Dr Stevenson. When there is added the fact that the overwhelming weight of medical opinion discussed accepts the work relationship, and that the occurrence of the injury accords with a common sense acceptance of the account of Ms Prasad, which was unchallenged, Dr Stevenson’s opinion cannot be preferred to the contrary view.
81 Ms Prasad returned to work in about September 2006, and has worked since that time. Before the injury she was a factory worker. Since resuming work on a graduated basis, she has done general clerical work, and, in more recent times, data entry work.
82 In adapting to her current duties, Ms Prasad has, in an informal way, undergone retraining. I am satisfied that she has made use of her intelligence, education, and training and has applied herself to learning the skills needed to perform the work allocated to her. She is currently working for Delphi, and has not had to seek work in a competitive labour market.
83 Although there are differing views about Ms Prasad’s capacity for work, now, and in the future, I am satisfied that because of the impairment of the function of her cervical spine and neck, she cannot now work, and will remain in the future, unable to work in the capacity in which she worked at the time of her injury. Dr Stevenson apart, that is the prevailing opinion of the medical evidence. I accept it.
84 As Ms Prasad will remain unable to resume unrestricted factory work, or other similar work, her employment is, and in my view, will remain confined, by the restrictions placed on her employability by medical opinion, which I accept. The relevant restrictions include no lifting of heavy weights, no repetitive movements of the upper limbs, no reaching above the shoulders[128], and no repetitive bending, twisting or lifting[129]. I accept Ms Prasad’s evidence that she continues to experience the symptoms she described.[130] Those symptoms make the limitations set out above appropriate.
[128] see the report of Dr Mirhom, PCB p21
[129] see the report of Mr Rogers, PCB p28, the report of Dr Lim, PCB pp38-39; the report of Dr Thomas, PCB pp51-52; the report of Mr Bittar, PCB p68; the report of Dr Sedal, PCB p97; the report of Mr Jones, DCB p106
[130] see paragraphs 12-14 above
85 Given Ms Prasad’s age, education, training and occupational history, I am satisfied that she cannot now perform work more physically demanding than her current duties. I consider that she is now and will remain capable of light work, of a clerical nature.
86 Mr Jones considers that Ms Prasad is now able to perform clerical work full time. She is currently working 20 hours a week.
87 I accept Ms Prasad’s evidence that she can cope with the work she is presently performing. I consider that she is able to do so because of the care she takes, exercising for 10 minutes every hour, and by using her medication in such a way that she can complete her work each day.
88 In my view, the opinions of Dr Thomas and Mr Bittar are consistent with Ms Prasad’s evidence, and are largely supported by the opinions of Dr Lim and Dr Sedal. Dr Lim considered that Ms Prasad could not manage more than 16 hours of work a week. She is working 20 hours a week. Even if Dr Lim’s assessment is inconsistent with Ms Prasad’s evidence about the amount of work she is now capable of, I consider that his assessment is consistent with a conclusion that she cannot work for more hours than she is presently working.
89 For these reasons, I consider that Ms Prasad does not now have the capacity to work for more than 20 hours a week, performing light clerical duties. I consider that this work is suitable work for Ms Prasad in the circumstances.
90 I accept the opinion of Dr Lim as to the limit to which Ms Prasad can be further rehabilitated, and the importance of a knowing and understanding employer if she is to be able to continue to work at her present level[131]. I do not consider that Ms Prasad can increase
[131] See the report of Mr Lim, PCB p39
(b) Has Ms Prasad established a claim as to loss of earning capacity? 91 Ms Prasad is now aged 38. Her occupational history to the time of injury is one of performing sales work and manual factory work. Her educational achievement includes completion of year 12 of secondary school and one year of a computer course. Before being injured, she had sales experience and had worked as a machinist.
92 Since being injured, and after recovering from surgery, Ms Prasad has resumed part time clerical work.
93 I must consider Ms Prasad’s position as it now is, taking into account the future so far as that can be established on the evidence.
94 I am satisfied that Ms Prasad cannot now return to her previous duties, and that she will remain unable to do so permanently. I have reached this conclusion taking into account the nature of the injury, the operation performed, and Ms Prasad’s post operative history, as these are established by the evidence discussed. I act on Ms Prasad’s evidence, which generally I found to be reasonable, reliable and credible, and on the opinions of Dr Mirhom, Dr Thomas, Mr Bittar, Dr Hall, Dr Lim, Mr Carey, Dr Sedal and to a lesser extent, Mr Rogers. I consider that the explanation for Ms Prasad’s on going pain and symptoms and physical limitations is as explained by many of these doctors as emanating and resulting from the injury to the C6 intervertebral disc, causing nerve root compression.
95 I have already found that Ms Prasad is permanently precluded from resuming unrestricted manual work. That leaves for determination, her remaining work capacity. In my view, she does not have capacity for further rehabilitation for retraining, given her present physical limitations. I am satisfied that Ms Prasad has rehabilitated, and been retrained to the extent that she has resumed work, and found work of which she is capable, and which is suitable work for her. I am satisfied that her continuing capacity for work, bearing in mind her age, education, occupational history, and transferrable work skills, and the limitations on her physical capabilities previously discussed is for light work of a clerical nature.
96 At this time, Ms Prasad works 20 hours a week. She does so by carefully managing her medication, so that it enables her to complete four hours of work a day, and by taking hourly breaks for exercise.
97 I am satisfied that at the end of each day’s work, that is, after four hours, Ms Prasad’s symptoms are exacerbated to the extent that she would not be able to work for longer each day. In my opinion, she is capable of performing no more than 20 hours of light clerical duties a week. In this respect I accept the opinions of Dr Mirhom, Mr Bittar, Dr Thomas, Dr Sedal and Dr Lim.
98 Although Ms Prasad has not attempted to work for more than 20 hours a week, I consider that she has participated in a graduated resumption of work, and has built up to her present level of work. In my assessment of her, Ms Prasad would work for longer than her present level of work if she was capable of it, and if medically advised to do so, or attempt to do so.
99 Given the medication she needs to take in order to complete her current work level, I consider that it is unlikely that she will, in the future, be capable of working for more than 20 hours a week: see the opinions of Dr Thomas, Mr Bittar and Dr Sedal in particular. Although Dr Sedal considers that her hours of work may be increased with further rehabilitation, I regard this as speculative, given the history since Ms Prasad’s in jury and her operation.
100 In arriving at this view, I have not taken into account the symptoms of which Ms Prasad complains in her arm, and have confined my attention to the impairment of function of her cervical spine and neck.
101 I have found little assistance from the vocational assessments. In my opinion, Ms Prasad’s capacity for work is properly and adequately discussed in the various medical reports. I consider that it is for the doctors who have assessed Ms Prasad to gauge what it is that she is capable of, or not able to do.
102 In this case, with the exception of Dr Stevenson, all doctors regard Ms Prasad as now suited to what is often referred to as light work. She is performing work that comes within that description, according to the doctors. This is not a case in which some other form of work may be more suitable for Ms Prasad.
Ms Prasad’s earnings
103 As to Ms Prasad’s earnings, Mr Mighell put some figures on behalf of Ms Prasad. These figures were not controversial. I propose to adopt them.
104 For the year ended 30 June 2004, Ms Prasad earned $48,297, gross, or $928.78 per week gross. For Ms Prasad to earn 60% of that sum, she would need to earn $557.27 gross per week.
105 According to Ms Angel, if Ms Prasad was still working in her pre-injury occupation, her award annual income for the year ended 30 June 2008 would have been $56,227.85 gross, or $1,081.30 gross per week.[132] To earn 60% of that wage, Ms Prasad would need to earn $648.78 gross per week. Mr Mighell contends that the threshold for a three year period after injury is represented by that weekly sum.
[132] See the report of Ms Angel, PCB p59
106 At the time of her injury, Ms Prasad was earning at the rate of $15.68 per hour. At the time of the hearing, Ms Prasad was being paid $19.06 per hour. For a twenty hour week, she is earning $381.20 gross, or a little over 35% of $1,081.30 gross per week.
107 Thus, the figures demonstrate that Ms Prasad is currently earning about 35% of her without injury earnings. For reasons already discussed, I am satisfied that Ms Prasad does not have a capacity for employment which is suitable for her which would, in the future, if exercised, enable her to earn more than 60% of her pre-injury gross income.
108 Ms Prasad has therefore established that she has a serious injury as to economic loss.
109 Ms Prasad succeeds on her application for leave to commence a proceeding for damages for personal injuries for the injury the subject of this application.
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