Pyrchla v Apvc Holding Pty Ltd
[2013] VCC 821
•21 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00870
| BEATA PYRCHLA | Plaintiff |
| v | |
| APVC HOLDING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 June 2013 | |
DATE OF JUDGMENT: | 21 June 2013 | |
CASE MAY BE CITED AS: | Pyrchla v APVC Holding Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 821 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – low back injury – pain and suffering damages certificate conceded – loss of earning capacity disputed – whether plaintiff can do alternative duties – whether injury satisfies the threshold test for loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235
Judgment: Plaintiff granted leave to bring a claim for damages for loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J V Richards SC with Miss J Federico | Slater & Gordon |
| For the Defendant | Ms R L Kaye | Hall & Wilcox |
HIS HONOUR:
Introduction
1 This application is brought by Originating Motion filed on 27 February 2012, by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant between 28 November 2007 and February of 2008.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity. Immediately prior to the commencement of the hearing in this application, the defendant conceded that the plaintiff have leave to bring proceedings for pain and suffering damages only. The application proceeded on the basis that the only issue in dispute between the parties was whether or not the plaintiff be granted leave to recover damages for loss of earning capacity as a result of the injury.
3 The plaintiff alleges that in the course of her employment with the defendant on or about 28 November 2007, and the period to February of 2008, she suffered injury to her lower back.
4 The following evidence was adduced or tendered during the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§Exhibit A – Plaintiff’s Court Book (“PCB”) pages 8-12, 23-48, 51- 53, 55-62B, 64- 74, 78- 86, 89-137, and pages to 174-200
§Exhibit B – Defendant’s Court Book (“DCB”) pages 20-29 and page 56
·The defendant tendered the following documents:
§Exhibit 1 – Plaintiff’s Court Book pages 49 and 60
§Exhibit 2 – Defendant’s Court Book pages 1-6, 11-19, 30-44 and page 55
§Exhibit 3 – DVD surveillance films (three) for the dates 2 September 2011, 16 March 2012 and 26 March 2012.
5 This application is brought under the definition of “serious injury” contained in sub-section 37(a) of the Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of body function”. The loss o body function in this case is the low back.
6 Ms Kaye, on behalf of the defendant, identified the issue in this application as the loss of earning capacity for the plaintiff as a result of the loss of body function. The first issue is, pursuant to s134AB(38)(e) and (f), whether the plaintiff has a loss of earning capacity of 40 per cent or more when measured comparing the gross income she is capable of earning in suitable employment as against the income she was earning from personal exertion or capable of earning in the three years before and the three years after as most fairly reflects her earning capacity.
7 The second sub-issue is whether the loss of earning capacity is permanent.
8 The third issue is whether the permanency and amount of the reduction in earning capacity is assessed after the plaintiff has completed rehabilitation and retraining, taking into account the reasonableness of the plaintiff’s attempts to participate in rehabilitation and retraining.
The Statutory Scheme
9 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course or in the course of her employment on or after 20 October 1999.[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
11 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
12 The plaintiff was born in July 1969. She is forty-three years old. In 1992, when she was twenty-three years old, the plaintiff migrated from Poland to Australia.[3] The plaintiff is a married woman with two children. Both of her children live with her and her husband. The eldest child is a university student and the younger child is still at secondary school.[4]
[3]Transcript (“T”) 15
[4]T44
13 The plaintiff completed an Applied Diploma in Ceramics in Poland prior to migrating to Australia. In 1994, she attended Preston TAFE and completed a commercial cookery course.[5] In 1999, she returned to Preston TAFE, did an apprenticeship in cooking and became a chef.[6] In 2002, she commenced a Diploma of Business at NMIT. The plaintiff did not complete this course.
[5]T16
[6]T17
14 The plaintiff’s work history in Poland was that of an insurance sales agent. Upon her arrival in Australia, her first work was at an Italian restaurant in Fitzroy. This employment was between the period 1994 to 1996.[7]
[7]PCB 24, paragraph 6
15 In 1996, the plaintiff commenced work as a chef with the defendant company. The plaintiff continued to work with the defendant company until the time of her injury the subject of this application. At the time of her injury, the plaintiff was employed at the Grand Mercure Apartments situated at Flinders Lane, Melbourne. She was a commi chef at that time.
Injury with the Defendant
16 The plaintiff, in the course of her employment on 28 November 2007, was preparing buffet meals at the defendant’s premises. In the course of that work, she was required to lean forward over the preparation benches, bending over and into ovens and the lower racks in the kitchen area, and like duties. During a break in her work on that morning, she went to stand up and noticed an onset of low back pain and some tingling and numbness in her left foot.
17 The plaintiff consulted Dr Vindigni. Dr Vindigni referred the plaintiff for x‑ray on 29 November 2007.[8] The plaintiff was on and off work until the end of 2007. She took holidays and was away from work for January of 2008.
[8]PCB 26
18 The plaintiff returned to work in February 2008 and returned to her normal chef duties. Over a number of weeks of the resumed duties, the plaintiff noticed increased severity of her symptoms in her back and left leg. The plaintiff attended physiotherapy treatment and ultimately consulted her general practitioner, Dr Baglar, at the Dalton Medical Clinic in Epping. On 6 March 2008, she was sent for a CT scan of her lumbar spine.[9] The plaintiff was put off work by Dr Baglar at that time.
[9]PCB 26
19 The defendant accepts that the injury occurred in the manner described by the plaintiff. The defendant has previously announced that it had granted the plaintiff a certificate for pain and suffering damages in respect of this application.
Medical treatment
20 Dr Baglar, the plaintiff’s general practitioner, ordered her to attend for a CT scan on 6 March 2008. On the results of that scan being known, Dr Baglar certified the plaintiff as being unfit to work. The CT scan was followed by an MRI scan of the lumbar spine which was performed on 14 April 2008.[10]
[10]PCB 41
21 On 23 May 2008, Dr Baglar referred the plaintiff for assessment by the neurosurgeon, Mr D’Urso.[11]
[11]PCB 27, paragraph 18
22 On 23 July 2008, Mr D’Urso, neurosurgeon, operated on the plaintiff. The operation was an L5-S1 micro discectomy and rhizolysis. On the left side, there was epidural fibrosis and a small amount of disc prolapse causing S1 nerve root compression. Mr D’Urso reported a satisfactory decompression and rhizolysis was performed.[12]
[12]PCB 89
23 In September of 2008, Mr D’Urso referred the plaintiff to Dr Clayton Thomas, a pain consultant specialist.
24 On 22 September 2008, the plaintiff attended Dr Clayton Thomas. At that time, the plaintiff was complaining of back and leg pain, more on the left side than the right. The plaintiff was complaining to Dr Clayton Thomas about numbness in the back and in her legs. At that time, the plaintiff was taking Tramadol, 50-milligram tablets, four per day, and Naproxen, 500 milligrams, twice daily. The plaintiff was also receiving inter differential and other forms of diathermy twice weekly. She was having massage treatment.[13]
[13]PCB 101
25 Mr D’Urso referred the plaintiff for an MRI scan on her lumbar spine on 14 November 2008.[14] This MRI scan was post the surgery performed by Mr D’Urso in July 2008. The MRI scan demonstrated a broad-based L4-5 disc bulge with some foraminal narrowing but no nerve root compromise at that level. At the L5-S1 level, there was moderate generalised disc bulge causing moderate to marked left-sided and moderate right-sided foraminal narrowing displacing the existing left nerve root.
[14]PCB 42 and 43
26 By the end of 2009, the plaintiff was suffering from excruciating pain in her left leg. She noticed that she was having twitches in her left foot and toes.[15] She was, at that time, receiving treatment from Ms Nguyen, physiotherapist, by way of acupuncture to her left leg.
[15]PCB 28
27 The plaintiff was referred to Mr Jithoo, neurosurgeon, in October 2009. Mr Jithoo organised a further MRI scan of the plaintiff on 30 November 2009.[16] Mr Jithoo referred the plaintiff to Mr Gonzales at the Knox Private Hospital. The plaintiff underwent a CT spine injection on 4 January 2010 at the Epworth Hospital at the hands of Mr Gonzales.
[16]PCB 45 and 46
28 The plaintiff has also had nerve conduction studies done in relation to her pain to her left leg. These studies were performed on 30 April 2010.[17]
[17]PCB 29
29 Mr Jithoo referred the plaintiff to Mr Malham, neurosurgeon. Mr Malham reviewed the plaintiff on 27 September 2010. Mr Malham diagnosed the plaintiff as having an L5-S1 symptomatic disc degeneration with bilateral L5‑S1 foraminal stenosis causing left greater than right L5 and S1 radicular lower limb pain.[18] Mr Malham recommended a procedure of L5-S1 posterior lumbar interbody fusion (“PLIF”) for decompression of L5 and S1 nerve roots, resection of the scar tissue and the total discectomy with disc space distraction and insertion of PEEK interbody cages, which would be secured by pedicle screws/rod fixation and bone grafting optimised by supplementary bone morphogenic protein to enhance the fusion status.[19]
[18]PCB 121
[19]PCB 118
30 At this point in time, the plaintiff has not undergone that radical surgery to her lower back recommended by Mr Malham.
31 The plaintiff is currently being treated by Dr Clayton Thomas and her general practitioner, Dr Baglar. Dr Clayton Thomas recently tried Topamax, 25 milligrams per day, to manage the plaintiff’s pain. On 10 April 2013, Dr Clayton Thomas agreed with the plaintiff that she stop taking that medication due to the side effects of nasal discharge and headaches.[20]
[20]DCB 56
32 In the past, the plaintiff has had medications in the form of Lyrica, Gabapentin, Tegretol, Durogesic, Durolex and Panadol Osteo in an attempt to control her pain symptoms.[21] Dr Clayton Thomas has recommended that the plaintiff trial some Allegron, 10 milligrams, increasing to a dose of 50 milligrams if the plaintiff can tolerate it. That mediation has yet to be approved for the plaintiff. Dr Clayton Thomas has recommended that if those side effects are too much for the plaintiff, then she can be tried on Endep or Epilim or a combination of both for her.[22]
[21]PCB 34
[22]PCB 110A
33 Dr Baglar continues to certify the plaintiff as being totally unfit for any duties. The latest certification in that regard was on 18 March 2013.[23]
[23]PCB 66A and 66B
34 The plaintiff also continues to receive physiotherapy treatment from Ms Nguyen. The physiotherapy treatments are on a fortnightly basis.
35 The plaintiff has undergone a 16-week job seeker plan with Recovre. The course commenced on 9 May 2012 and was scheduled to be completed on 29 August 2012.[24] The plaintiff gave evidence that she attended at this course one day a week for three hours. The plaintiff stated that she had a sitting session of one-and-a-half hours, then a ten-minute break and then a further sitting session of one-and-a-half hours. In the course of that process, she was required to prepare a résumé for employment and apply for jobs. The plaintiff’s evidence is that at the end of the course, she could not fully complete it due to the excruciating pain that developed in her left leg. The plaintiff attributed this pain to the sitting required during the course of the rehabilitation and retraining course. I accept the plaintiff in this regard.
[24]DCB 49 – 51
36 The plaintiff has not been able to engage in any paid employment since the time of her surgery.
Consequences of the low back injury to the Plaintiff
37 The plaintiff swore two affidavits, on 4 November 2011 and 17 April 2013. The plaintiff was cross-examined and re-examined in the course of this hearing. In the context of the defendant conceding the pain and suffering serious injury certification, I do not propose to embark upon a full analysis of the consequences for the plaintiff. However, in considering the loss of earning capacity consequences for the plaintiff, I shall make an analysis of the relevant consequences to whether or not the plaintiff is capable of being employed.
Pain
38 The plaintiff gave evidence that she is in constant pain.[25] The plaintiff described her pain at the current time as follows:
“I have constant pain in my lower back, constant pain in the calves. They – like pin and needle pain, and now I have – since July last year I have a burning pain in my whole left leg from the hip to the toes. And this pain is coming and going and I took different medication since, different medication but so far none of them working and I'm waiting for approval for another one.”[26]
[25]T13, L12
[26]T12, L11-18
39 In her later evidence, the plaintiff described that currently she has more pain in her back which she describes as burning pain. She stated that before the course where she was sitting for three hours a day, she had pins and needles- type pain but that has now become burning pain.[27] The plaintiff went on to give evidence that she would try to alleviate the pain by standing or walking and then sometimes she would have to lie down.[28] The plaintiff stated that her pain was not improving either in her back or her legs with time.[29]
[27]T14
[28]T14
[29]T32
40 I conclude that the plaintiff is suffering from a severe amount of pain both in her lower back and down her legs, more particularly on the left side. I accept that the plaintiff honestly and reasonably describes the level of pain that she is suffering from the injury to her low back.
Medication
41 Since the time of her operation until now, the plaintiff has had a series of medications prescribed for her by Dr Baglar or Dr Clayton Thomas. These medications included Lyrica, Gabapentin, Tegretol, Durogesic, Duralex and Panadeine Osteo. None of these medications have alleviated her pain symptoms. A more recent trial of Allegron was tried by Dr Clayton Thomas. This medication has yet to be approved for use by the plaintiff.[30] The plaintiff is currently taking 300 to 400 milligrams of Tramadol to alleviate her pain symptoms.[31] As previously noted in these reasons, the plaintiff had also trialled Topoamax but this was discontinued due to the side effects upon her.
[30]T12
[31]T13
42 I accept that the plaintiff has reasonably taken all the appropriate medical advice in respect of prescribed medications to achieve pain relief. Unfortunately for her, the medications have not fully dealt with her symptoms and she continues to suffer from what she describes as “burning pain”.
Medical treatment
43 I have previously dealt with the ongoing medical treatment. The plaintiff has been offered, by Mr Malham, the interbody fusion operation (“PLIF”) to her lower back. The plaintiff, in her evidence, stated the reason that she was not going to proceed with that surgery was that she had an allergy to titanium. This alleged allergy arose out of a reaction she had to a ring put in her belly button. The plaintiff’s evidence in this regard was as follows:
Q: “And in fact this surgery that Mr Malham suggested in 2010 is something you’re now starting to increasingly consider having, is that correct?---
A: At this stage I'm not considering because Dr D’Urso (sic), like they’re using titanium for the screws in my back and I'm allergic to titanium.
Q: Who told you you’re allergic to titanium?---
A: I'm allergic to nickel for years and I get belly button piercing, this was like outside sort of my case and my body refused the titanium.”[32]
[32]T32-33
44 It is clear from the report of Dr Baglar that the plaintiff does not have a titanium allergy.[33]
[33]PCB 66
45 When the plaintiff was challenged in cross-examination about the titanium allergy as the reason for not having the surgery, the following evidence was given:
Q: “So is the titanium the main reason why you’re not having the surgery?---
A: It is and also they – like I had some complication on the – after first surgery and I'm really afraid to go forward with the surgery.”[34]
[34]T35, L5-8
46 In re-examination, the plaintiff was asked about the previous problems with surgery. The following evidence was given:
Q: “What was that complication?---
A: I have problem with bleeding from my colon, I was vomiting blood and then like a couple of hours after surgery I almost died and that’s about it.”[35]
[35]T70, L1-4
47 It is reasonable for the plaintiff to delay or refuse to have the substantive surgery that Mr Malham is recommending for her. None of the medical practitioners are guaranteeing that if the plaintiff had the surgery recommended by Mr Malham, that her symptoms of pain both in her back and legs would be resolved.
Activities of daily living
48 The plaintiff’s daughter, Paulina, swore an affidavit in this application dated 20 May 2013. The plaintiff’s daughter stated that such tasks as cooking, cleaning and mopping the floors in the house need to be performed by herself or her younger sister. She stated that the plaintiff could do some of those chores but required the assistance from her children and husband. The plaintiff’s daughter, Paulina, also described the apparent effect of pain on the plaintiff in the setting of her home. The plaintiff’s daughter was not challenged by way of cross-examination in respect to these observations and I accept that evidence in support of the plaintiff’s case.
49 The plaintiff conceded that she could still partake of her hobby of photography.[36] She stated that she no longer involved herself in chess or playing of cards.[37] The plaintiff stated that she changed her car from a manual car to an automatic car due to problems she was having with her left leg because the pain was so severe.[38]
[36]T37
[37]T37
[38]T44
Credit of the Plaintiff
50 The defendant showed DVD surveillance film of the plaintiff in this proceeding. The total duration of the film of the plaintiff was approximately 40 minutes.
51 The last piece of surveillance film showed the plaintiff using a single point walking stick. There was no surveillance beyond that time. In the course of the surveillance, the plaintiff walked with a limp which seemed to be left-sided. The manner in which the plaintiff got into the driver’s seat of the car was her reversing in and sitting on the seat and then swinging her legs into the position under the steering wheel. In the first video that method of getting into the car was used by the plaintiff. I asked her if that was her method always of getting into the car. She said it was. The following film showed her getting into the car on six further occasions. On each and every one of those occasions, she got into the car in exactly the same way. I note that this method of getting into the car is a method protective of her lower back. Her evidence, in fact, was that she had been shown by the rehabilitation people that this was the best way for her to get into the car.
52 My observation of the film of the plaintiff over the three dates of 22 September 2011, 16 March 2012 and 26 March 2012 all displayed the plaintiff being protective and careful in her movements.
53 I conclude that the video surveillance film that was shown in Court in effect corroborated or supported exactly what the plaintiff was saying about her symptoms and limitations. It also was consistent with her presentation in Court. The plaintiff was not grimacing or overplaying her difficulties in the witness box.
54 I accept that the plaintiff was giving an accurate and truthful description of her symptoms, particularly in relation to the pain and the manner in which it affected her.
Loss of earning capacity
55 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, she must establish that:
(a)At the date of the hearing, she had a loss of earning capacity of 40 per cent or more pursuant to 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).
56 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.
The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of 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.
57 It was submitted on behalf of the defendant that the “without injury” gross figure per week was $390. The plaintiff submitted that the “without injury” gross earnings per week was $477 per week.
58 The test for “without injury” earnings is:
“Without injury earnings are to be calculated by ascertaining the gross income which the relevant worker was earning, was capable of earning, or would have been capable of earning during that part of the window period which most fairly reflects the worker’s earning capacity had the injury not occurred. This assessment is made on the basis of the evidence available and it was not suggested that the onus in this regard lies anywhere other than on the plaintiff.”[39]
[39]Roleff v Chubb Insurance Co of Australia Pty Ltd [2011] VSCA 21 at paragraph [56]
59 In the three full years of taxation returns prior to the injury date, being the year ending 2005, 2006 and 2007, over the relevant period, the plaintiff’s highest earnings in that period was $36,808 gross in 2005.[40] I accept that the 2005 annual gross income is the appropriate “without injury” earnings figure. Therefore, the “without injury” earnings figure of $425 gross per week represents the deduction of 40 per cent.
[40]DCB 55
60 In the course of the cross-examination of the plaintiff, the following jobs were put to her:
(i) Customer service officer, Alpha Car Hire
(ii) Customer service officer, Andrews Airport Parking
(iii) Service officer, V-Line Pty Ltd
(iv) Retail sales consultant, Vodafone
(v) Reception reservations, Melbourne Short Stay Apartments.
61 Each and every one of these prospective jobs or employment options for the plaintiff are outlined in a report from Nabenet dated 8 May 2012.[41]
[41]DCB 38-43
62 The plaintiff, in her evidence, stated that her general practitioner said that she could not perform any of those jobs. The evidence was:
Q: “Sorry, I'll just get you to – can you just go back to my question before we go on to the lady. Your understanding is all the jobs suggested by Nabenet have bending or squatting and that’s really the problem. Is that the situation?---
A: Basically what happened, the lady who did the program, she faxed the job options to Dr Baglar and then he said I won’t be able to do any of those jobs. And I ask her if she receive that document. She said she didn’t, but I ask doctor’s secretary and she fax it. So she basically denying that she receive those sort of documents.
…
Q: So if there's a job in which you can sit and stand as you wish and has no bending or squatting, that's something you would think about?---
A: At this stage I'm not thinking about any job. I'm concentrating about my burning pain because I hardly function for the last whole year, almost whole year and none of the pills are working and I'm in really bad pain and now I'm waiting two months for another medication and, I don't know, they just completely ignore me.
Q: So the bending and squatting is the main problem for you, is it, in terms of getting back to work?---
A: My back pain and my leg pain.”
(sic)
63 I find that the plaintiff would be unable to do these jobs because of her physical limitations as a result of the pain that she is suffering in her back and legs. As late as 18 March 2013, her general practitioner, Dr Baglar, has certified the plaintiff as unfit for any duties up until 15 April 2013.[42] The plaintiff is complying reasonably with the directions from her general practitioner in respect of her work capacity.
[42]PCB 66A & 66B
Medical opinions
64 I have read and have had regard to all of the medical reports tendered in this proceeding.
(1) Dr Baglar, general practitioner
65 Dr Baglar’s most recent report is dated 11 February 2011. Dr Baglar’s opinion in relation to the plaintiff’s ability to return to employment is as follows:
“In terms of her long term prognosis, Beata will have low back pain and bilateral leg pain indefinitely, unless she agrees to some form of fusion procedure. There is a high chance that her pain will worsen with her natural ageing and also due to her reduced mobility, without surgery.
Beata, as you should know, was a chef. She will never be able to work in her pre-injury employment and she will never be fit for any form of employment with similar physical demands. In her current state, she is not fit for any form of vocation for which she could qualify because of her education, experience and training.
…
In short, if her condition is not improved with a surgical approach, she is not employable permanently.
Although nobody can be forced to accept an operation, he/she does not feel comfortable about, the proposed fusion procedure can change her work capacity in that, she still will not be fit for her pre-injury employment regardless of any surgery, but if the fusion is performed, she may be able to work in the administration part of hospitality industry, but this is an assumption only.”[43]
[43]PCB 66
66 I note that on 18 March 2013, Dr Baglar has certified the plaintiff as unfit for any duties up to 15 April 2013. Based on Dr Baglar’s opinion, it is clear he thinks that the plaintiff is unable to engage in any work unless she has the operation to her lower back. He is not guaranteeing a return to employment in the form of administration in the hospitality industry after the fusion operation is performed. As he states, it is an assumption only.
(2) Ms Nguyen, physiotherapist
67 Ms Huong Nguyen prepared a report dated 4 May 2010. The report is somewhat dated at the time of this application. Ms Nguyen gave the following opinion at the time of her report as follows:
“In my opinion, Beata is unable to return to her pre-injury duties and/or hours as a chef. It would also be very difficult to find her an alternative vocation and employment due to the high irritability of her condition and the limited functional capacity that she has due [to] her ongoing symptoms. She would only be able to perform roles that do not involve prolonged positions (standing, sitting), repetitive movements, bending/reaching, twisting or lifting. Unfortunately due to these restrictions, I believe that it would be quite impossible to find suitable employment for Beata.”[44]
[44]PCB 82
68 The plaintiff continues to receive physiotherapy from Ms Nguyen.
(3) Mr Paul D’Urso, neurosurgeon
69 Mr D’Urso’s latest report is dated 14 February 2013. Mr D’Urso is a surgeon who performed the original surgery on the plaintiff. Mr D’Urso’s opinion in respect of employment for the plaintiff is set out as follows:
“Her condition appears to have stabilised at this time. It is likely that Beata will have a permanent incapacity of a partial nature, which will prevent her from performing employment activities.”[45]
[45]PCB 100
70 This statement by Mr D’Urso, at first blush, appears equivocal. Mr D’Urso refers to permanent incapacity of a partial nature and then says the plaintiff is unable to perform employment activities. I interpret this statement by Mr D’Urso as meaning that the plaintiff has incapacity of a partial nature in relation to her back and living circumstances but these limitations will act as a barrier to her being involved in any employment activities.
(4) Dr Clayton Thomas, rehabilitation and pain medicine specialist
71 Dr Clayton Thomas’s most recent full report is dated 13 February 2013. Dr Clayton Thomas noted as follows:
“I reviewed an MRI of her lumbar spine dated 16 October 2012, which showed at L5-S1 a left-sided disc bulge with associated compromise or exiting at L5 nerve root but no obvious neurological compromise. At L4-L5 there was also a right-sided disc bulge with mild subfacet stenosis.
Overall impressions:
1 Ongoing left leg pain. Nothing too obvious on the MRI. Functional tremor.
2 Should trial some topirmate. Commencing on 25 mg at night, increasing to 50 mg twice daily. Has trialled all the other medications with either no benefit or unacceptable side effects.
…
… I have scheduled an appointment to see her on 10 April 2013, to assess her response or otherwise to the commencement of Topamax, a medication occasionally useful for neuropathic pain conditions.
It is still my opinion that she has pain arising from her lumbar spine relating to the disc injury to the lumbosacral disc level. She still has ongoing left sciatica despite technically successful surgical intervention. Decompression of an affected nerve is usually beneficial in alleviating sciatica but in 10% to 20%, ongoing pain can remain problematic.”[46]
[46]PCB 109-110
72 In a later report dated 15 April 2013, Dr Clayton Thomas noted that the Topamax medication was ceased by the plaintiff. He took a history from the plaintiff that after ceasing the medication, she had started to limp and the burning pain had worsened.
73 Dr Clayton Thomas then recommended that she trial some Allegron 10 milligrams increasing to 50 milligrams at night time. It is to be noted that he stated that if that was not appropriate, then Endep or Epilim would be the next medications.[47]
[47]PCB 110A
74 Dr Clayton Thomas then sent an email to the solicitors for the plaintiff on the first day of the hearing at 11.57 am. This email was received by the plaintiff’s solicitors immediately before this hearing commenced. Dr Clayton Thomas simply states:
“… I can confirm that Ms Beata Prychla has not [sic] work capacity and this will be indefinite.”[48]
[48]PCB 110B
75 Ms Kaye, on behalf of the defendant, stated that this statement by Dr Clayton Thomas was of little use in determining this proceeding, given that the doctor gave no reasons or explanation as to why the plaintiff could no longer have a work capacity.
76 I accept that Dr Clayton Thomas, who is currently treating the plaintiff, is in a good position to determine whether or not the plaintiff has a work capacity or not. He has been treating the plaintiff since 2008. He has the advantage of knowing the plaintiff over a long period of time and the progress or otherwise of her treatment and symptoms throughout the whole period up until now. I accept Dr Clayton Thomas’s evidence that the plaintiff has no working capacity at the present time and into the foreseeable future.
(5) Mr Greg Malham, neurosurgeon
77 Mr Malham prepared a report dated 10 January 2012. Mr Malham saw the plaintiff on 27 September 2010. He has not seen the plaintiff since. In his report, Mr Malham states:
“I discussed with her that my recommended procedure would be L5/S1 posterior lumbar interbody fusion (PLIF), for decompression of L5 and S1 nerve roots, resection of scar tissue, total discectomy with disc space distraction and insertion of PEEK interbody cages, secured by pedicle screw/rod fixation and bone grafting optimized by supplementary bone morphogenic protein to enhance fusion status. I discussed the success for improving low back and leg pain of 7-8/10, no change in symptoms 2/10 an the 3-5% risks including infection, bleeding, CSF lead, nerve root damage, foot drop, metalware failure, heart attack, stroke, DVT/PE, urinary tract infection, general anaesthesia, drug allergy and death.”[49]
[49]PCB 118
78 Mr Malham diagnosed the plaintiff as follows:
“L5/S1 symptomatic disc degeneration with bilateral L5/S1 foraminal stenosis causing left>right L5 and S1 radicular lower limb pain.”[50]
[50]PCB 121
79 In Mr Malham’s opinion, based on a single consultation of 27 September 2010, the plaintiff was unable to return to any form of work over the past 18 months. The plaintiff reported progressively worsening lower back pain and bilateral lower limb pain. It is most likely her pain and disability would continue into the foreseeable future.[51]
[51]PCB 122
80 Mr Malham gave the following opinion:
“… “Mrs Pyrchla had total incapacity and that without the recommended posterior lumbar interbody fusion (PLIF) surgery her incapacity would be permanent.
…
… Mrs Pyrchla has been certified as unfit for all forms of employment since March 2008 and that this is consistent with information provided to me at single consultation 27.09.10 by Mrs Pyrchla. My opinion was that Mrs Pyrchla had total incapacity.
…
Mrs Pyrchla’s pain and disability will continue into the foreseeable future. Her condition may stabilise and deteriorate slow and progressively.”[52]
[52]PCB 123
81 Whilst the opinion of Mr Malham is somewhat dated and based only on one consultation in September of 2010 with the plaintiff, it is clear from the opinions of Clayton Thomas and Dr Baglar that the plaintiff’s condition has remained the same or deteriorated in the pain symptoms for the plaintiff.
(6) Mr Kevin F King, consultant orthopaedic surgeon
82 The plaintiff has been examined by Mr Kevin King. He has prepared two reports, dated 15 September 2010 and 12 March 2013. In his latest report, Mr King gave his opinion in respect of the plaintiff’s employment capacity as follows:
“Her condition has stabilised, she is permanently unfit to go back to unrestricted duties as a chef or as a kitchen hand which would have involved constant bending, lifting and straining.”[53]
Mr King goes on to say:
“… but if lighter administrative positions could be found for her within the hotel kitchen or restaurant system then she may be able to manage.”[54]
[53]PCB 136
[54]PCB 136
83 It is clear that Mr King thought that it was a possibility that the plaintiff could work in alternative light duties. He did not expand on the duration of time that the plaintiff could work or the actual duties that she could work.
(7) Mr Bill Radley, psychologist and vocational assessment specialist
84 Mr Bill Radley prepared a report dated 26 February 2013. Mr Radley consulted with the plaintiff on 20 February 2013. He also examined the medical opinions and rehabilitation reports relevant in this case. Mr Radley’s opinion is short and concise:
“Ms Pyrchla is like to have no work capacity for any alternative employment in the future. She is effectively unemployable.”[55]
[55]PCB 191
(8) Dr Chris Baker, specialist in occupational medicine
85 Dr Baker assessed the plaintiff on behalf of the defendant for medico-legal reporting in this proceeding. His report is dated 25 October 2012. Dr Baker extensively reviewed the medical treatment and reporting on behalf of the plaintiff. He gave his opinion as follows:
“5 I anticipate that she will continue to be incapacitated due to her pain in the back and also probably into her legs.
…
6 I consider she is incapacitated for employment. I consider she is totally incapacitated for her per-injury employment as a chef.
…
7 I consider that it is likely that she will have some degree of incapacity into the future.”[56]
[56]DCB 27
86 Dr Baker then refers to the Recovre report dated 20 April 2009 and considers the jobs set out therein. Dr Baker is of the opinion that the plaintiff could undertake sedentary-based work where she can change her position at will and move about as required. She should not sit for prolonged periods of time. Dr Baker noted his concerns about the plaintiff undertaking the jobs of administrative or marketing assistant, customer service representative or insurance consultant. He then sets out his response to what he refers to the other report which is the Nabetnet report:
“With regards to the other report, she could undertake customer service officer work. She would be limited in her ability to undertake call centre work as she would have to get up and move about. Similarly, sales assistant work would required accessing cupboards and putting stock away and receiving stock. She would be restricted in the types of work she would undertake in retail assistant work, and again there would be concerns about her skills in undertaking general clerk and hotel receptionist work. I am therefore not able to state that she would be fit to undertake the employment options listed. She would have some capacity, but would be restricted by physical restrictions of sitting and standing and moving about, which would be important for her to undertake to minimise pain.”[57]
[57]DCB 28
87 In summary, Dr Baker was of the view that the plaintiff could theoretically do sedentary type work of a simple administrative nature. However, he does express reservations in respect of the particular jobs put forward by the rehabilitation advisers, Nabenet.
(9) Mr Michael J Dooley, orthopaedic surgeon
88 Mr Dooley prepared two reports dated 13 February 2012 and 15 April 2013. in his later report, Mr Dooley notes on examination that there is no obvious objective neurological deficit affecting the lower limbs of the plaintiff. Mr Dooley was of the opinion that the plaintiff’s ongoing pain is disproportionate to her underlying organic condition. In his view, the basis for this is a psychological reaction to her situation.[58] Mr Dooley gave his opinion as follows:
“Therefore, in my view, if one cannot adequately explain ongoing symptoms on the basis of organic pathology, then a decision to undertake excision of the lumbosacral disc and fusion at the lumbosacral level would not be based on firm scientific foundations.”[59]
[58]DCB 18
[59]DCB 18
89 It is clear that Mr Dooley would not recommend any surgery to the plaintiff. Mr Dooley does say that it is reasonable for the plaintiff to continue to take Tramal for her pain. Mr Dooley’s final opinion concerning the work capacity was that the plaintiff could do light physical work and clerical duties.[60]
[60]DCB 18
90 Mr Dooley is the only reporting medical practitioner who is of the opinion that the basis for the plaintiff’s condition is some psychological reaction. Mr Dooley does not recommend any surgery for the plaintiff. This is in complete contrast to the treating neurosurgeons, Mr D’Urso, Mr Malham and Mr Jithoo, who have seen the plaintiff over an extended period of time. I do not accept Mr Dooley’s opinion in this case.
91 In conclusion, on balance, the medical opinions in this case support the plaintiff that she does not have a work capacity. They also support the proposition that this condition is permanent in the sense that it is for the foreseeable future for the plaintiff that she will be unable to partake in suitable employment. Indeed, the preponderance of the medical evidence is that she will not work in any capacity whatsoever in the foreseeable future.
92 I have considered each of the employment options set out in the Nabenet report dated 8 May 2012. Each of these jobs was proposed as suitable for the plaintiff prior to her most recent setback as a result of the Recovre rehabilitation training undertaken between May and August 2012. I conclude, based on all of the evidence, that the options of:
(i)Customer service officer, Alpha Car Hire
(ii)Customer service officer, Andrews Airport Parking
(iii)Service officer, Sunbury V-Line Pty Ltd
(iv)Retail sales consultant, Vodafone
(v)Reception reservations, Melbourne Short Stay Apartments
are all unsuitable employment options for the plaintiff given the extent of her physical disabilities arising from her low back.
93 I conclude, based on the evidence of the plaintiff, which I accept, and the treating medical practitioners, in particular Dr Baglar and Dr Clayton Thomas, that the plaintiff has suffered a loss of earning capacity which is productive of a financial loss of more than 40 per cent per annum of the “without injury” earnings figure. The loss of earning capacity is permanent.
Conclusion
94 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring proceedings at common law pursuant to s134AB(16)(b) of the Act to recover damages for loss of earning capacity which has arisen out of the plaintiff’s employment with the defendant between November of 2007 and February of 2008.
95 I will hear the parties on costs.
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