Ren v Linen and Moore Pty Ltd
[2015] VCC 1003
•29 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-01205
| SHU HUA REN | Plaintiff |
| v | |
| LINEN & MOORE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 April 2015 | |
DATE OF JUDGMENT: | 29 July 2015 | |
CASE MAY BE CITED AS: | Ren v Linen & Moore Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1003 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower back – injury to right shoulder – disentangling of psychiatrically-caused consequences and disability from physical consequences relating to ability to work – defendant conceded pain and suffering serious injury certificate – plaintiff has onus of proving loss of earning capacity greater than 40 per cent
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages. The application for certification for loss of earning capacity damages is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with Ms M S Tait | Zaparas Lawyers |
| For the Defendant | Mr D Masel SC with Mr N J Dunstan | Minter Ellison |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 13 March 2013 by the plaintiff, applying for leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of and in the course of her employment with the defendant between July 2010 and 18 March 2011.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The plaintiff claims that she suffered a low-back injury and right shoulder injury during the course of her employment with the defendant, and seeks to bring proceedings for damages.
3 At the commencement of this proceeding, Mr Masel, on behalf of the defendant, conceded that the plaintiff is entitled to be granted a certificate for serious injury in respect of pain and suffering damages only as a result of the injury to the plaintiff’s low back.[1] The hearing in this matter proceeded on the issue of whether or not the plaintiff was entitled to be granted leave to recover damages for loss of earning capacity.
[1]Transcript (“T”) 6
4 The defendant, through Mr Masel, stated that the issue in this case is whether the plaintiff had suffered a 40 per cent loss of earning capacity as a result of the injury to her right shoulder or her low back.[2] Mr Masel stated that the defendant is not suggesting that the plaintiff is suitable to engage in warehouse duties or pre-injury duties.[3] Mr Masel stated that the plaintiff was required to strip out the psychological embellishment of her symptoms in order for the Court to make a proper assessment of her loss of earning capacity as a result of the injuries to her right shoulder or low back.[4]
[2]T6
[3]T11
[4]T12
5 The plaintiff gave evidence and was cross-examined by the defendant. The plaintiff required the assistance of an interpreter but had a fair command of English and could communicate in English in an elementary way.
6 At the completion of the viva voce evidence in this case, the following documentation was tendered:
· Exhibit P1, Plaintiff’s Court Book (“PCB”), pages 6–19 inclusive and pages 37–213
· Exhibit P2, two letters of instruction for the reports of Dr Duke, psychiatrist
· Exhibit D1, the Defendant’s Court Book (“DCB”), pages 3, 4, 7, 8 and pages 11–170 inclusive.
7 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act, which requires a plaintiff to prove that she has suffered a permanent serious impairment or loss of body function. The loss of body function identified in this case by the plaintiff’s counsel, Mr Hore-Lacy, was the low back and right shoulder.
8 In the course of evidence, it became clear that the diagnosis for the injury to the plaintiff’s right shoulder was adhesive capsulitis.[5]
[5]PCB 57
9 Mr Christopher Pullen, orthopaedic surgeon, treated the plaintiff for her right shoulder condition. In his report dated 30 November 2011, Mr Pullen was of the opinion that the plaintiff’s condition had improved, and on the basis of her presentation in August 2011, he declared that she was fit for duties in respect of her right shoulder. Mr Pullen went on to state:
“I believe the prognosis for Miss Ren’s right shoulder is very positive. I would be optimistic she will have complete resolution of her symptoms without any further difficulties. I would expect her improvement to be complete. I would not expect her to have any residual disability with regard her shoulder, once her frozen shoulder resolves.”[6]
[6]PCB 58
10 The plaintiff herself, in evidence, stated that her back was the big problem. She went on to state that her right shoulder was getting better and was less of a problem for her than the back.[7] On the basis of the plaintiff’s evidence and the expert treater’s evidence of Mr Pullen, I do not accept that the right shoulder injury to the plaintiff is a continuing ongoing problem for her in respect of her capacity to work.
[7]T41
11 The loss of earning capacity issue between the parties was properly about the loss of body function to the plaintiff’s low back.
The statutory scheme
12 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
13 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[8]
[8]Section134AB(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”.[9]
[9]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-s(38). I have applied the principles set forth therein in reaching my conclusions in this application.
14 I am required by s134AE 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
15 The plaintiff was born in 1962 and is now fifty-three years old. The plaintiff is a married woman with a ten‑year-old son. She lives with her two parents-in‑law in suburban Melbourne.[10] The plaintiff grew up in Shanghai, China, and studied mechanical engineering at university for three years.[11] The plaintiff worked in a car factory in China in the mechanical design section between 1987 and 1995.[12]
[10]PCB 6
[11]T19
[12]T21
16 In 1995, the plaintiff migrated to Australia.[13] The plaintiff worked for Sabena Fashions for a period of fifteen years immediately upon arriving in Australia.[14] Sabena Fashions closed down in June 2010.[15]
[13]T17
[14]T22
[15]PCB 7
17 The plaintiff’s work at Sabena Fashions included quality control work,[16] control of samples to agents, and the control of order sheets to clients.[17] The plaintiff acknowledged that she used the English language in the course of her employment at Sabena Fashions.[18]
[16]T24
[17]T22–23
[18]T23
18 In the period of 1998 to 2008, the plaintiff worked on a part-time basis at a business known as Piccadilly Circus. The work at Piccadilly Circus was a sales job for clothing which she undertook on Saturdays and Sundays.[19] This work at Piccadilly Circus was performed at the same time the plaintiff was working at Sabena Fashions.
[19]T27
19 In 2007, the plaintiff’s son commenced his school education.[20] In July 2010, upon the closing of Sabena Fashions, the plaintiff commenced employment with the defendant.[21] The plaintiff remained in employment until 18 March 2011 with the defendant.
[20]T28
[21]T29
Injury with the Defendant
20 The plaintiff commenced employment with the defendant as a picker and packer at the premises in Gore Street, Fitzroy, in July 2010.[22] The defendant’s business was the importation of linen products from China and sales and distribution within Australia. The plaintiff has described the work that she was required to perform picking and packing orders as very physical, which required a lot of bending and lifting.[23]
[22]PCB 7
[23]PCB 7
21 The plaintiff stated that she first noticed the injury to her low back in January 2011.[24] She stated that she also noted that her right shoulder was experiencing pain at that same time. The plaintiff ultimately attended her medical practitioner with respect to her back in February 2011.[25]
[24]PCB 8
[25]PCB 8-9.
22 In relation to the low-back injury, the defendant has conceded that there is a causal link between the plaintiff’s work with the defendant and her injury. The issue to be determined in this case is what is the retained income-earning capacity of the plaintiff at this time.
23 In these reasons I will restrict the assessment of the medical opinions and material to that which relates to the injury to the plaintiff’s lower back.
Medical treatment
24 The plaintiff first noticed symptoms in her low back and right shoulder in January and February 2011. The plaintiff first consulted her general practitioner, Dr Chen, concerning her back injuries on 15 March 2011.[26] On 18 March 2011, the plaintiff had a CT scan of the lumbar spine.[27]
[26]PCB 37
[27]PCB 78
25 The plaintiff commenced physiotherapy treatment with Mr Laing on the referral of Dr Chen in late March 2011.[28]
[28]PCB 53
26 On 19 April 2011, the plaintiff attended upon Dr Chen in relation to her right shoulder injury. On 19 April 2011, the plaintiff underwent a right shoulder ultrasound ordered by her general practitioner, Dr Chen. A small partial-thickness tear was noted in the supraspinatus tendon on the right side.[29]
[29]PCB 88–89
27 In May 2011, Dr Chen referred the plaintiff to Dr Leong, a rehabilitation physician.[30] By June 2011, the plaintiff had been referred to Mr Michael Johnson, orthopaedic surgeon, by her general practitioner.[31]
[30]PCB 39
[31]PCB 59
28 Dr Leong assessed the plaintiff as suitable for a pain management program. However, the plaintiff decided that she did not want to attend the pain management program.[32]
[32]PCB 108
29 In July 2011, the plaintiff was referred to Mr Pullen, orthopaedic surgeon, by Dr Chen, for treatment and advice in respect of the right shoulder injury. On 15 August 2011, the plaintiff had an MRI scan of her right shoulder which confirmed the diagnosis of Mr Pullen that the plaintiff suffered from adhesive capsulitis.[33]
[33]PCB 56–57
30 The plaintiff was referred to Mr Timms, neurosurgeon, in March 2012.[34] Mr Timms’ opinion was that the plaintiff was not requiring any surgical intervention in respect of her back, and recommended a prolonged course of physiotherapy, hydrotherapy and analgesic medication.[35] Mr Timms’ opinion remains the same as set out in his report dated 12 February 2015.[36] Mr Timms is of the opinion that the plaintiff does not require any surgical intervention and would benefit from physiotherapy, hydrotherapy and massage, as well as analgesic medications.
[34]PCB 61
[35]PCB 63
[36]PCB 71
31 The plaintiff’s current treatment is controlled by her general practitioner, Dr Chen. Dr Chen has previously referred the plaintiff to a psychologist, Mr Goh, for treatment for anxiety and depression. He has also referred the plaintiff to a physiotherapist, Mr Patrick Arnold. The plaintiff also takes medication, Naprosyn, three to four per week.[37] The plaintiff also takes Panadol. The plaintiff is not currently in receipt of any other active medical intervention or treatment.
[37]T39
The Plaintiff’s medical opinions
Dr Wooi Chong Chen, general practitioner
32 Dr Chen is the plaintiff’s general practitioner. He prepared four reports, dated 3 February 2012, 10 July 2013, 9 July 2014 and 9 April 2015, for the purposes of this proceeding.
33 In his final report dated 9 April 2015, Dr Chen gave the opinion that the plaintiff had a poor prognosis in respect of a full recovery in respect of her injuries. He also formed the opinion that the plaintiff had poor prospects of finding meaningful full-time employment. Dr Chen’s opinion was that the plaintiff is “currently unfit for her pre-injury or any alternative duties in view of the extent of her injuries”.[38]
[38]PCB 47
34 Dr Chen had referred the plaintiff to Mr Timms, neurosurgeon, for further review and treatment of her back injury. Dr Chen confirmed that the plaintiff was taking Naprosyn for pain relief.[39]
[39]PCB 48
Mr Craig Timms, neurosurgeon
35 Mr Timms prepared six reports, dated 28 May 2012, 8 September 2013, 5 December 2013, 16 May 2014, 3 February 2015 and 8 April 2015. Mr Timms diagnosed the plaintiff with mild stenosis in her lumbar spine.[40] In Mr Timms’ opinion, when combining what he described as the neck and low-back injury, together with the right shoulder complaints by the plaintiff, she was incapacitated for work due to her symptoms. He was of the opinion that the occupations proposed in the vocational report were not suitable for the plaintiff.[41] Mr Timms clarified his opinion in the report dated 8 April 2015, where he stated:
“I believe that Mrs Shu Ren is completing incapacitated for the work and for the vocational options described by Ms Joanne Bryant’s report from the 24th of June 2014. I believe this completely incapacity is related to her back injury alone.”[42]
[40]PCB 71
[41]PCB 71
[42]PCB 74.1
36 Mr Timms’ opinion in respect to the plaintiff’s work capacity had been relating to each of the areas of complaint by the plaintiff, which includes cervical spine, lumbar spine and right shoulder. In his final report dated 8 April 2015, he has not set out why he has changed his opinion to state that she is completely incapacitated for work due to her back injury alone.[43]
[43]PCB 74.1
37 Mr Timms has treated the plaintiff since 1 March 2012.[44] Mr Timms’ opinion is that the plaintiff does not require surgical intervention to treat her spinal conditions. Mr Timms, like all treating medical experts, relies heavily upon the history and complaints made by the plaintiff in order to form his opinion. In his examination, he noted that the reflexes for both the upper and lower limbs, combined with the muscular tone, were all normal.[45] On 24 November 2014, he ordered a further MRI scan. He noted from that report of the plaintiff’s lumbar spine that there were multiple levels of disc injuries and disc bulging without any major neural compression.[46]
[44]PCB 61
[45]PCB 70
[46]PCB 70–71
Mr Michael Johnson, orthopaedic surgeon
38 Mr Johnson originally saw the plaintiff on the recommendation of the local doctor, Dr Chen, on 22 June 2011. In his report dated 15 December 2011, Mr Johnson noted:
“When I saw her her primary complaint was of frequent low back pain with some occasional left leg discomfort. The symptoms were worse with standing and walking and relieved by lying down.”[47]
[47]PCB 59
39 In his examination, he noted that “all of her reflexes were present and there was no neurological abnormality in the lower limbs”.[48]
[48]PCB 59
40 Mr Johnson’s opinion was:
“I am uncertain of the anatomical cause of Ms Ren’s pain. She did not describe any specific work incident to me but I understand that her normal work duties require repetitive bending and lifting in order to move stock.”[49]
[49]PCB 60
41 There was no up-to-date report from Mr Johnson.
Mr Patrick Arnold, physiotherapist
42 Mr Arnold treated the plaintiff between 7 January 2014 and 7 February 2014. He prepared a report dated 29 May 2014.[50] Mr Arnold noted that the plaintiff gave a history of spending most of her time in a supine position in bed due to her pain.
[50]PCB 75
43 In respect of the plaintiff’s ability to engage in employment, Mr Arnold’s opinion was:
“Given the above she certainly would not be capable to complete her previous duties. Modified duties would need to be strictly within the above listed limitations, and would need to commence with very short shifts, ideally 20-30 minutes. Even if this was possible, given her pain, disability, deconditioning and time since injury, I would think her return to work plan would likely fail.”[51]
[51]PCB 76
Mr Charles Flanc, vascular and general surgeon
44 Mr Flanc saw the plaintiff for the purpose of medico-legal reporting. He prepared seven reports, dated 7 November 2011, 28 December 2011, 25 June 2013, 1 May 2014, 9 April 2014, 26 December 2014 and 9 April 2015. When Mr Flanc examined the plaintiff on 2 November 2011, he made the following observations. He diagnosed the plaintiff’s right shoulder condition as adhesive capsulitis, and noted that the primary cause of her condition is a little uncertain.[52] In respect of the plaintiff’s low back, Mr Flanc noted that the plaintiff stated this was her most severe pain.[53] He noted that there were no deformities in the lumbar spine and there was no tenderness. He did note that there was restriction of flexion and extension. He stated that there was no wasting in the legs, and dorsiflexion was normal. He noted that the neurological examination of the plaintiff’s legs at that time was normal.[54]
[52]PCB 90
[53]PCB 86-87
[54]PCB 88
45 Mr Flanc’s diagnosis in respect of the lumbosacral spine at that time was that the plaintiff had longstanding disc degeneration and arthritis of the lumbosacral spine which is probably the cause of her low back pain.[55]
[55]PCB 90
46 In his report dated 25 June 2013, Mr Flanc noted:
“The range of movement of her lumbar spine has become even more restricted than it was at the time of my first examination and on balance, suggests that a significant component of her symptom complex is also influenced by non-organic factors.”[56]
[56]PCB 101
47 Mr Flanc went on in the same report to state:
“It is likely that her symptoms are being influenced by non-organic, probably psychological factors and I have suggested that you should arrange for a formal psychiatric assessment.”[57]
[57]PCB 103
48 In his report dated 9 April 2014, Mr Flanc stated:
“It is likely that her disability is influenced by a chronic pain syndrome in which there is a sensitisation of pain pathways resulting in pain which is greater in severity and extent than that expected from the physical injury alone.”[58]
[58]PCB 114
49 Mr Flanc noted that the plaintiff had been to see Mr Ronald Leong and had been advised to enter a pain management program. He noted that the plaintiff had not undergone that program.
50 Mr Flanc, in his most substantial report dated 26 December 2014, again noted that a significant component of the plaintiff’s low-back pain is related to a degenerative condition in her lumbar spine at levels L4‑5 and L5‑S1.[59] Mr Flanc went on to state that it was his view that the plaintiff has developed a Chronic Pain Syndrome in which is a sensitisation of pain pathways resulting in pain which is greater in severity and extent than that expected from the physical injury alone. Mr Flanc stated that it was still his opinion that a significant component of the back pain was related to physical causes.
[59]PCB 125
51 In terms of the plaintiff’s capacity for work, Mr Flanc’s opinion was, as at December 2014, that the plaintiff was physically able to do the order and sales clerk type of occupations referred to in the vocational report of Ms Bryant. In Mr Flanc’s opinion, warehouse attendant was not a job that the plaintiff could perform without further assessment of the individual tasks and her suitability at the time in question. Mr Flanc’s opinion was that the plaintiff could perform the clerical type jobs referred to in Ms Bryant’s on the basis that she was able to move around and change her postural position as and when she required. Mr Flanc noted a number of issues: in particular, the evidence of Chronic Pain Syndrome which is amplifying the severity of her pain, which may interfere with the plaintiff’s capacity to work. Otherwise, his opinion was that the plaintiff had a capacity for part-time light office type duties.[60]
[60]PCB 128
52 In his final report dated 9 April 2015, Mr Flanc sought to clarify his opinion concerning the plaintiff’s employability. He stated as follows:
“In my view, with regard to her organic condition only, she would have the capacity for part-time clerical duties providing she could move around whenever her discomfort became more severe and providing she could be re-trained into that occupation.
In my view, it would be appropriate for her to start working 3 to 4 hours per day on alternate days and this could be increased as tolerated.”[61]
[61]PCB 131
Dr Clayton Thomas, rehabilitation and pain medication specialist
53 Dr Thomas examined and prepared reports for the purpose of medico-legal reporting in this proceeding. He prepared three reports, dated 4 December 2012, 9 April 2015 and 14 April 2015. In his reports, Dr Thomas was examining the plaintiff both for back injury and her shoulder injury. He noted from the MRI examinations of the plaintiff’s lower back that there was no evidence of any neurological compromise. Dr Thomas noted in his report dated 9 April 2015:
“I think that there are nonorganic components contributing to her disability and I think that these contribute to her to a moderate extent. We know that highly fear-avoidant patients have a poor prognosis and have a worsening level of disability.”[62]
[62]PCB 134.2–3
54 Dr Thomas noted that the plaintiff had been previously referred to multidisciplinary rehabilitation but she failed to undergo that program. In his view, that was a great pity.
55 Dr Thomas attempted to separate the presentation by the plaintiff from organic and non-organic components. He stated:
“If you add both the organic and nonorganic components to her presentation, I do not think she has work capacity.
If you consider her purely from an organic perspective, I think she does have work capacity albeit limited. I think she could perform work at a bench, 5 kg lifting limit between waist and chest height, to avoid bending, lifting and twisting below waist height and above chest height. This would account for the limitations and restrictions relating to her lumbar spine.”[63]
[63]PCB 134.3
56 In a report intended to clarify the plaintiff’s work capacity, Dr Thomas stated that the plaintiff had a work capacity of 20 hours per week in respect of her back, and 20 hours per week in respect of her shoulder.[64]
[64]PCB 134.6
57 I note that Dr Thomas did not refer to the report of Ms Bryant referring to the light office work type employment that was found to be suitable for the plaintiff. Dr Thomas, in his recommendation of work, appears to be referring to light bench assembly type work instead.
Dr Joe Slesenger, specialist occupational physician
58 Dr Slesenger prepared four reports for the purposes of this proceeding. The reports are dated 3 May 2014, 16 November 2014, 14 December 2014 and 10 April 2015. Dr Slesenger was considering the plaintiff’s work capacity in relation to a combination of her injuries of the right shoulder and her low back. He assessed her as being able to perform three hours a day, three days a week, with restrictions of lifting, and that she could sit and stand as required.[65] Dr Slesenger noted that the plaintiff presented with evidence of Chronic Pain Disorder, and it is unclear whether her treatment to date has been comprehensive.[66]
[65]PCB 142
[66]PCB 142
59 On 7 November 2014, Dr Slesenger attended at the worksite of OmniDerm to assess the workplace offer. OmniDerm was a high-quality cosmetics firm that had a network of independent retail cosmetic businesses. The job that was asked of the plaintiff was a warehouse type job involving receiving orders, telephone enquiries, receipt of incoming goods, dispatching orders, and marketing and logistical analysis.
60 Dr Slesenger, in his report, stated that the plaintiff was unable to do a number of those requirements in the job due to her shoulder injuries, and stated that she was unable to do the paperwork due to her language difficulties. Those reasons are set out in the Plaintiff’s Court Book at page 148.
61 In his final report dated 10 April 2015, Dr Slesenger reviewed the employment opportunities set out in the vocational report prepared by NES and dated 11 August 2014.
62 In respect of the plaintiff’s lower back injury, in Dr Slesenger’s opinion, the plaintiff could not perform any of those roles. More particularly, in respect of the order clerk job and the sales clerk/administrative clerk jobs, the reason given there was not necessarily to do with her physical condition but to do with her inabilities, as he saw them, of language skills and computer skills. Dr Slesenger’s final position was that the plaintiff could work three days a week at three hours per day.
Professor Richard Bittar, neurosurgeon
63 Professor Bittar prepared two reports dated 19 May 2014 and 9 April 2015.
64 In his report dated 19 May 2014, Professor Bittar noted the following matters:
“She walked with a nonantalgic gait. Her range of lumbar flexion was severely restricted and very painful, whereas she had a fairly good range of lumbar spine extension. She had moderate bilateral lumbar paravertebral tenderness in the mid and lower lumbar region with no muscle spasm.
Straight leg raising was normal bilaterally. Neurological examination of her lower limbs revealed global weakness in her left leg which appeared largely pain-related. There was no clinical evidence of radiculopathy.”[67]
[67]PCB 161
65 He then set out his opinion in respect of the plaintiff’s work capacity. He stated as follows:
“In my opinion she is permanently incapacitated for her preinjury duties as a result of her work-related lumbar spine condition.
Taking into account her age, limited English, training and work experience, together with the nature and severity of her work-related lumbar spine condition, it is my opinion that she does not have any realistic capacity to procure and maintain suitable employment in a reliable, consistent and ongoing fashion.
In my opinion her total incapacity for work is permanent.”[68]
[68]PCB 161
66 Professor Bittar, in this opinion on work capacity, has entered into the arena, in particular in relation to what would amount to suitable employment for the plaintiff. The educational, occupational and social history obtained by Professor Bittar was not a full history in respect of the plaintiff’s abilities.
67 In his later report dated 9 April 2015, Professor Bittar assumed the role of an advocate rather than a medical practitioner giving an opinion to assist the court. His whole report is a critique of a report of Mr Dooley that he had been given. Mr Dooley had reported for the purposes of the defendant in this case. In particular, Professor Bittar stated that he did not notice any abnormal illness behaviour on behalf of the plaintiff in his examination of her.
68 It is unfortunate that Professor Bittar entered into the role of advocate on behalf of the plaintiff in his second report.
Mr Bill Radley, psychologist and vocational assessment specialist
69 Mr Radley prepared two reports, dated 14 October 2014 and 15 October 2014. In his first report, he assessed the plaintiff as having no current work capacity to return to any type of alternative employment. In his second report prepared the day after, Mr Radley confirmed that the plaintiff had no current capacity for any alternative type of employment.
70 In his first report, Mr Radley stated:
“Ms Ren has no qualifications, experience, training or skills of any type of work of a scientific-technical, artistic, interpersonal/public contact, organising/supervising or clerical-administrative nature.”[69]
[69]PCB 179
71 This statement, and the basis upon which Mr Radley has performed his task of vocational assessment report, is completely incorrect. The plaintiff is university-trained in mechanical engineering. She had worked in a capacity of quality controller for some fifteen years in a fashion house, including the control of stock and/or goods on consignment, the preparation of quality control of garments and product going through that fashion house, and other documentary entries in respect of the movement of stock in and out of the business. Her previous work experience covers all of those fields, but more particularly, covers the field of tasks which include sales clerk, customer service officer or an enquiry clerk. These suggested courses of employment have all been performed by her in her past working life in Australia. It is for this reason – that Mr Radley has completely misunderstood the qualifications of the plaintiff and her work experience – that I do not accept his opinion about the plaintiff’s ability to perform those particular jobs.
The Defendant’s medical opinions
Mr Peter Battlay, orthopaedic surgeon
72 Mr Battlay prepared a medical report for the purposes of litigation. It is dated 3 June 2011. In his opinion, on assessment of the plaintiff on 2 June 2011, he thought that the plaintiff had sustained a right shoulder injury as well as a low-back injury. He stated that at that time, the low-back injury incapacitated the plaintiff, and, given the additional problem with her right shoulder, she would need treatment before any return to work was contemplated. Mr Battlay’s opinion is now well out of date and of little assistance to the Court in assessing the plaintiff’s current work capacity.
Dr Geoffrey Graham, occupational physician
73 Dr Graham prepared two reports, dated 3 November 2011 and 16 November 2011. In Dr Graham’s opinion, the plaintiff was able to perform modified duties on a full-time basis as long as she could vary her posture and sitting/standing position.[70] In his view, the plaintiff was suffering from degenerative changes in her low back.
[70]DCB 73
Dr David Elder, consultant in the specialty of occupational and environmental medicine
74 Dr Elder prepared two reports, both dated 5 July 2012. The first of those reports, appearing at the Defendant’s Court Book at page 84, was for the purposes of an AMA assessment. In that report, Dr Elder stated that:
“In summary, it was very difficult to extricate her pain behaviour, it tends to overwhelm her presentation however I did accept that there was some asymmetry in her range of motion demonstrated in the lumbosacral spine and so there is some objective evidence of dysmetria and signs of ongoing injury.”[71]
[71]DCB 87
75 In the other report dated the same date, 5 July 2012, Dr Elder just confirms his notation that the plaintiff presented with significant pain behaviour. He did not give any opinion as to whether or not the plaintiff had a work capacity.
Mr Michael Dooley, orthopaedic surgeon
76 Mr Dooley prepared five medical reports, dated 19 February 2013, 18 June 2014, 30 June 2014, 13 March 2015 and 1 April 2015.
77 In his first report, dated 19 February 2013, Mr Dooley noted that:
“Mrs Ren has developed a chronic pain syndrome and the majority of her current presentation relates to her psychological condition. It is clear that anxiety and depression have been significant issues for Mrs Ren.”[72]
[72]DCB 100–101
78 In respect of the plaintiff’s right shoulder injury, he stated that it was adhesive capsulitis or frozen shoulder, and that that condition was of spontaneous insidious onset.[73] In Mr Dooley’s opinion, the plaintiff’s ongoing right shoulder girdle pain related to her psychological reaction to her situation. He stated that from an orthopaedic viewpoint, the plaintiff ought to avoid heavy physical work and work that involved a lot of bending and lifting. In his opinion, the plaintiff had a physical capacity to carry out light physical work and clerical duties.[74]
[73]DCB 101
[74]DCB 102
79 In his report dated 18 June 2014, Mr Dooley’s opinion in relation to the plaintiff’s capacity to work was:
“I do not believe that Ms Ren would have a physical capacity to carry out all of her pre-injury duties all of the time.
I believe that Ms Ren has a physical capacity to carry out light physical work and clerical duties.”[75]
[75]DCB 105
80 In his report dated 30 June 2014, Mr Dooley addressed the issues in respect of the order clerk and warehouse attendant at the cosmetics premises of OmniDerm. He stated:
“From an orthopaedic viewpoint only, I believe that Mrs Ren would have a physical capacity to work as an order clerk and as a warehouse attendant of light products such as cosmetics etc. She would not be able to work as a warehouse attendant in relation to heavy items.
Return to work would need to be on a graduated basis. Again, from an orthopaedic viewpoint only, I would expect Mrs Ren to be able to increase her hours in time towards full time work. It would be difficult to provide a final estimate of working hours until Mrs Ren returned to suitable work and assessment of her progress could be made.”[76]
[76]DCB 107
81 In his report dated 13 March 2015, Mr Dooley confirmed his view that the plaintiff was diagnosed as:
“Accepting that Mrs Ren sustained a soft tissue injury as outlined above, it remains my view that the constancy and intensity of her ongoing pain and her described disability are far greater than one would expect for her organic condition. I remain of the view that the reason for Mrs Ren’s disproportionate pain is her psychological reaction to her situation. In my view, it is Mrs Ren’s psychological condition that dominates her current presentation.”[77]
[77]DCB 107c
82 Mr Dooley maintained his opinion that the plaintiff was unable to carry out heavy physical work. He also remained of the view that the plaintiff had the physical capacity to carry out light physical work and clerical duties.
83 Mr Dooley’s final report of 1 April 2015 is unfortunately a critique of the medical report prepared by Professor Richard Bittar. Like Professor Bittar, he enters into a critique of a colleague. This approach by Mr Dooley is unhelpful to me, and I have taken little notice of his final report dated 1 April 2015.
Dr Michael Duke, psychiatrist
84 The defendant had the plaintiff examined by Dr Duke. He prepared two reports, dated 14 May 2014 and 3 March 2015. This case is not a case where a psychiatric injury is alleged by the plaintiff. In his final report, Dr Duke states:
“I do maintain my earlier expressed opinion that the worker herself has no Axis I psychiatric condition. She is substantially resentful and aggrieved but this does not constitute a psychiatric illness.”[78]
[78]DCB 117e
Dr Dominic Yong, specialist occupational physician
85 Dr Yong has prepared four reports, dated 3 June 2014, 21 July 2014, 24 February 2015 and 29 March 2015. Dr Yong, in his first report, sets out that the plaintiff has a current work capacity to perform tasks within the following restrictions:
(i) Vary posture regularly between sitting, standing and walking.
(ii) Avoid repeated bending and twisting the back.
(iii) Avoid firm pushing or pulling.
(iv) Avoid above shoulder height tasks or reaching duties with the right arm repeatedly (the right shoulder).
(v) Avoid lifting more than 4 kilograms on a repeated basis.[79]
[79]DCB 128
86 Dr Yong noted that those restrictions would exclude the pre-injury role the plaintiff worked at the defendant’s premises. He noted that she had a capacity to work within the restrictions outlined above.
87 In the report dated 21 July 2014, Dr Yong clarified his assessment of the plaintiff’s ability to work, and stated that the most suitable job for the plaintiff would be an order clerk. He stated that all of those restrictions that he had previously assessed for the plaintiff’s employment were catered for within the job of an order clerk.[80] Dr Yong was advocating for a graduated return to work program for the plaintiff. Initially, he was suggesting four-hour shifts of three days per week. He thought that the plaintiff would progress to being able to work full time within a six-month period.[81]
[80]DCB 129b
[81]DCB 129c
88 In his later reports, Dr Yong confirms his opinion as set out above. He continued to note that the plaintiff’s condition has been complicated by the presence of a psychological comorbidity. This can impact on the recovery of the physical conditions and contributing to ongoing functional signs. This can be commented on by an expert in the field, a psychiatrist.[82]
Mr Simon Goh, psychologist, and general practitioner mental health care plan prepared by Dr Wooi Chong Chen, general practitioner
[82]DCB 129i
89 The defendant also relied upon the reports of Mr Simon Goh, psychologist, and a general practitioner mental health care plan prepared by Dr Chen.
90 Mr Goh noted that he had been asked to assist the plaintiff with management of her depression and anger issues related to her work injury. This statement is in a report dated 9 July 2012.[83]
[83]DCB 157
91 Dr Chen’s mental health care plan set out the clinical history that the plaintiff had right shoulder and back injuries in 2011. It also stated that the plaintiff had developed anxiety and depression due to lack of improvement of her injuries, as well as due to WorkCover terminating her entitlements.[84] It is clear from that reportage that the plaintiff has a combination of depression and anxiety conditions arising from or as a reaction to her physical injuries. It also indicates and is consistent with the history taken by Dr Yong that the plaintiff was angry and distressed at the way in which she had been treated by WorkCover.
[84]DCB 160
Ms Joanna Bryant, occupational therapist
92 Ms Bryant prepared three reports, dated 24 June 2014, 15 March 2015 and 2 April 2015. In her first report dated 24 June 2014, Ms Bryant gave the following opinion as to the plaintiff’s employability:
“It is my opinion that Ms Ren’s vocational profile is now suited to ongoing work in warehousing, but where the products being distributed are light in weight, such as cosmetics or skin care products: high value, low volume. Her overseas experience in manufacturing where she worked in componentry and small parts may be of advantage to her in securing work as an Electronic Assembler. Other vocational assessors have recommended her suitability for employment as an Order or Sales Clerk. This may be also suitable, particularly in a work environment, such as importing, where her bilingual skills would be highly valued.”[85]
[85]DCB 134
93 Ms Bryant sets out the income levels for those particular occupations as follows:
· Storeperson, average gross weekly earnings of $953
· Product assembler, average gross weekly earnings of $931
· Order clerk, average gross weekly earnings of $1,031.
94 The average gross weekly earnings and hourly rates are helpfully set out by Ms Bryant in her report at Defendant’s Court Book page 147.
95 In her later report, Ms Bryant identifies further employment opportunities for the plaintiff in the form of administrative assistant (Mandarin speaker), sales assistant for watches at Watches of Switzerland, warehouse assistant in Hawthorn, as well as Chinese-speaking sales assistant within the City.
96 Ms Bryant, in her final report, noted the objections that Dr Slesenger had concerning the OmniDerm job referred to earlier in these reasons, and confirmed that that was an occupation that the plaintiff was physically able to perform. Ms Bryant noted that the negative attitude of the plaintiff to returning to work was one of the inhibitors for her future employability.
Loss of earning capacity
97 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a)at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
98 The measurement of loss of earning capacity is set out in paragraph (f) of s134AB(38), which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
99 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a 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.
100 In this case, the parties have agreed that the “without injury” loss was $980 gross per week. The “after injury” earnings of the plaintiff have been nil. The plaintiff has not worked since she ceased employment with the defendant on 18 March 2011.
101 The 40 per cent loss of “without injury” earnings is $587 gross per week. The plaintiff must prove that she does not have the ability and capacity to earn more than $587 per week in order to be granted leave to sue for damages for loss of earning capacity.
102 In assessing the plaintiff’s current work capacity, I am required to separate the physical causes for pain and disability and inability of the plaintiff to work from the psychological causes of interference with the plaintiff’s work capacity. In the case of Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis,[86] the Court of Appeal set down some applicable principles to assist in the separating out of those psychological or psychiatric causes for pain and suffering and disability. In particular, I am required to strip out any manifestation of disability which is a result:
[86](2007) 15 VR 649
(a)A recognised psychiatric condition;
(b)Chronic Pain Syndrome or Disorder;
(c)Functional overlay;
(d)Exaggeration of symptoms whether conscious or unconscious;
(e)Any other aspect of the plaintiff’s psychological response to the physical injury.
103 The Court accepts that the plaintiff has a physical injury. In the course of the evidence and submissions in this case, it has become clear that there is a level of embellishment or exaggeration of symptoms by the plaintiff. The Court does not find that the plaintiff is consciously embellishing her symptoms. A number of the medical practitioners who have assessed the plaintiff in this case have noted that the plaintiff suffers from either a Chronic Pain Syndrome or Disorder or an unconscious embellishment of her disability. In particular, the following practitioners have referred to this issue in their assessments:
§ Mr Dooley (DCB 100)
§ Mr Johnson (PCB 59–60)
§ Mr Flanc (PCB 101, 114 and 125)
§ Mr Thomas (PCB 134.2); and
§ Mr Slesenger (PCB 142).
104 Even Professor Bittar, who I have criticised earlier in these reasons for becoming an advocate for the plaintiff, stated in his defence of the plaintiff concerning Mr Dooley’s assessment, that the plaintiff had complaints based on her psychological reaction to her situation, and said:
“Furthermore, it is important to note that almost all individuals who experience chronic pain will have a psychological element to their pain. This does not necessarily diminish the importance of the underlying physical component, which in [the plaintiff’s] case, I believe, is both substantial and persistent.”[87]
[87]PCB 164
105 Professor Bittar has identified that the plaintiff has a psychological element to her pain as a real possibility, but he does not go on to distinguish between the psychological aspects of the pain and disability and incapacity from the physical injury to her lower back.
106 In the early stages of the plaintiff’s treatment for her low back and shoulder injuries, the plaintiff was recommended to attend a pain management course. The plaintiff did not attend that pain management course, and her condition has deteriorated despite the fact that she has not been working. I find that the plaintiff has decompensated over a period of time in an unconscious way so that her presentation to the medical practitioners is an exaggeration of the true capacity for her to engage in employment.
107 In terms of her employment, I accept that Ms Bryant has properly assessed the plaintiff as being capable of performing the role of an order clerk.[88] The income from an order clerk’s employment is gross weekly earnings of $1,031. This figure relates to full-time employment.
[88]DCB 146
108 In the opinion of Dr Thomas, the plaintiff has the capacity to work a maximum of 20 hours per week.[89] I find that the plaintiff has a capacity to work at least 20 hours per week. Dr Thomas, whilst identifying the plaintiff’s non-organic components contributing to her disability, has not “stripped them out” in making his assessment of the 20 hours per week.
[89]PCB 134.6
109 Dr Slesenger is of the view that the plaintiff could work three hours a day, three days a week. The opinion of Dr Dominic Yong, occupational physician, is that the plaintiff could commence on a graduated return to work program of four-hour shifts, three days a week. He anticipated that the plaintiff would be able to return to her work on a full-time basis.[90]
[90]DCB 129c
110 The fact that the plaintiff has not attempted to return to work at any level makes her claim that she is incapacitated very difficult to substantiate. If this was a situation where the plaintiff had made a genuine attempt to return to work and failed due to her incapacity, then she would be in a better position to substantiate her claim for serious injury certification in this case.
111 I accept that an appropriate form of employment for the plaintiff would have been that of an order clerk, as nominated by Ms Bryant. The gross weekly income for that employment on a full-time basis is in excess of $1,000. The plaintiff has a reasonable grasp of the English language, and in fact was examined by doctors without the assistance of an interpreter during the course of the preparation for this case. Whilst the plaintiff herself states that her English is not 100 per cent, she was able to understand most of what transpired in court and could answer in English. I am not satisfied that the language barrier put forward on behalf of the plaintiff is the barrier to her ability to maintain employment. Her past employment history at Sabena Fashions and at Piccadilly Circus clearly indicates that she was able to communicate with customers and engage in transactions for and on behalf of her employers.
112 The fact that the plaintiff has not attempted employment or a return to work on any basis does not assist me in assessing whether she has incurred a reduction of 40 per cent or more to her income-earning capacity. It also does not assist me in assessing whether or not any reduction that the plaintiff may suffer as a result of her injury is permanent as required under the legislation.
Conclusion
113 On the basis of my findings outlined in this judgment, the plaintiff has failed to satisfy me on the requisite standard that she has suffered a permanent loss of income-earning capacity to the extent required under legislation. The plaintiff’s application for a serious injury certificate for loss of earning capacity is dismissed.
114 Based on the concession made by the defendant at the commencement of this hearing that the plaintiff be granted a certificate to bring a claim for damages for pain and suffering in respect of her low back, I grant the plaintiff leave to do so.
115 I will hear the parties on costs.
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