Rhodes v Radar Towns Pty Ltd
[2014] VCC 185
•5 March 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03470
| JOANNE MAREE RHODES | Plaintiff |
| v | |
| RADAR TOWNS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 27 February 2014 | |
DATE OF JUDGMENT: | 5 March 2014 | |
CASE MAY BE CITED AS: | Rhodes v Radar Towns Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 185 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – lumbar spine – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC with Mr R Morrow | Slater & Gordon Lawyers |
| For the Defendants | Ms K Galpin with Mr D Oldfield | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the first defendant on 9 April 2001 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity, pain and suffering having been conceded.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
6 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is aged forty-three, having been born in March 1971. She is a single mother with two children. They presently live on a 40-acre property in near Kyabram.
13 The plaintiff completed Year 11 and then worked part time as a receptionist in Echuca.
14 In 1989, the plaintiff moved to Mildura, where she started work with the first defendant, then known as Tilleys Removalists, later Mildura Removalists, as a pre packer. That job was heavy, assisting packing and unpacking household goods into boxes which were then moved to a new address. Such items included books, crockery, stereos and small televisions.
15 The job involved a lot of lifting, often from the ground, and there was a lot of carrying, twisting and bending, and work had to be done quickly. The job also involved a lot of travelling around the Mildura area as far as Adelaide. Often on arrival at a house, the plaintiff was involved in unpacking.
16 At all times, the plaintiff’s stepfather operated the business.
17 When the plaintiff first started work with the first defendant, she was about nineteen. In addition to pre packing work, she did a bit of receptionist work. For about year, she also worked at Murray Valley Group Training and she did an office work traineeship.
18 At most in the early years, the plaintiff spent two days a week doing administrative work doing up the manifests, and the rest of the time she was pre packing. She did a course in pre packing when she was about twenty-one.[3]
[3]Transcript (“T”) 17
19 There was another lady who ran the office. The plaintiff disagreed that her work was mostly clerical and did not know why her accountant had described her as an office clerk on her taxation return. The plaintiff did a little bit of management work out the back, putting documentation together. On occasion, she did short courses to update her skills.[4]
[4]T27
20 The plaintiff agreed she met with a vocational assessor in 2001 to discuss her return to work after her first back surgery. She agreed the range of pre-injury duties noted in that report was correct, but she denied having told the assessor only 10 per cent of her work time was spent in pre packing or that these duties were performed in monthly blocks.[5]
[5]T19, List of duties DCB 69 – including processing and paying creditors, bank reconciliations
21 About a year after she started work with the first defendant, the plaintiff had some minor back soreness and she had physiotherapy in Mildura. She could cope with work without too much difficulty. Minor aches and pains were part of the job. An x‑ray was undertaken in 1999 but she was told not to stop working as she was coping well enough with her work duties.
22 Over the following years, the plaintiff had intermittent pain down her left leg, but not enough to stop her working. At times she got lighter work and could keep working full time.
23 On the said date, during the course of work, the plaintiff had to lift a TV set or a microwave into a box. As she twisted to move the item, she felt sudden, severe low back pain (“the incident”).
24 The plaintiff had been doing heavy lifting all morning. There were probably about eight or nine items in the box.[6]
[6]T12
25 After a couple of months, the plaintiff was told she required surgery and she underwent a microdiscectomy (“the first operation”) performed by Mr Oatey.
26 The plaintiff seemed to make a very good recovery; however, she continued to experience intermittent lower back and left leg pain and major cramping in her lower calf. She returned to work nine weeks after the first operation, trying to avoid heavy work doing mostly light duties in the office. Sometimes she had to go back to her heavy packing duties and she experienced an increase in lower back and left leg-increase in pain when she did. Sometimes she had time off work. Her lower back and left leg pain became increasingly worse as time went on.
27 The plaintiff went on maternity leave in 2005, returning to work six weeks after her first child. The plaintiff then did mainly light duties and pre packing when directed. She again went on maternity leave in December 2006 to have her second child.
28 In February 2007, the plaintiff experienced a sudden aggravation of her back condition which occurred spontaneously when pushing a light trolley around a shopping centre. She was then unable to move or stand without severe pain.
29 The plaintiff was advised she required further surgery and underwent a second procedure by the same surgeon in March 2007 (“the second operation”). Unfortunately, that surgery did not help and her pain did not improve due to the L5-S1 disc being traumatised a second time. Further, she had an infection in her spine and required a further procedure at St Vincent’s Hospital.
30 Liability was ultimately accepted by the defendants for the 2007 incident.
31 The plaintiff denied that she told a vocational assessor in 2007 that her pre-injury duties did not involve heavy lifting.[7]
[7]T23
32 Despite the second operation, the plaintiff continued to experience bad lower back pain and ongoing left leg and cramping pain. She took up to seventy tablets a day and needed a walking cane.
33 The plaintiff was advised by Mr Oatey there was nothing further that could be done, although he suggested a double fusion. Other doctors advised this procedure was too risky.
34 Eventually, Mr Oatey suggested that the plaintiff attend Professor Fraser in Adelaide. By this stage, the plaintiff was unable to properly care for her children or go to work, and her partner had left around that time.
35 Professor Fraser undertook a double level fusion in July 2008 (“the last operation”). Post surgery, there was some improvement but he told the plaintiff her spine had not properly fused.
36 In July 2013, the plaintiff had a CT scan to investigate pain she was experiencing from her back into her left hip. She was advised that investigation showed further deterioration in her back.
37 The plaintiff presently takes 10 milligrams of Endep, 15 milligrams of Fast Release MS Contin twice a day, together with 60 milligrams of Slow Release MS Contin per day and 50 milligrams of Zoloft.
38 The plaintiff continues under the care of Dr Hool. He has suggested she attend pain management in Shepparton. The plaintiff has attended an introductory session of the eight to twelve-week course. She hopes the course will give her some way of managing her pain.[8]
[8]T33
39 In recent times, the plaintiff has been noticing the pain has worsened with aching and numbness which is worse in the mornings. She feels stiff and sore and has a dull ache which does not go away. She also gets cramping in her left calf muscle between three to six times a night. This pain is excruciating and wakes her every night and she tries to roll out of bed and push the cramp out. She finds it hard to get out of bed with the cramping pain and has to hold onto the bed pole to help her get out. Then she usually has a cramp in her calf muscle and walks with a limp. She only gets about two to three hours’ interrupted sleep.
40 In addition to pain, the plaintiff suffers numbness in the bottom of the left foot and across the top of her foot into her toes. There are times when she feels her foot drag and she is unable to lift it up.
41 The plaintiff attempted pain management in Caulfield but it was hard to drive there, so she discontinued that program. After twenty minutes’ driving, the plaintiff has to get out of the car and walk around with pain. The school bus has to pick up the children, even though the plaintiff lives only 3 kilometres from the school.
42 WorkCover recently sent the plaintiff to CRS in Shepparton and she prepared a résumé.
43 The plaintiff enrolled in a basic computer course at TAFE in May 2013 which went for four weeks, one day a week. She was supposed to attend from 9.00am to 2.00pm but lasted only an hour or two on each day as the pain from sitting was intense.
44 The plaintiff believes there is no job which she has the capacity to perform. The rehabilitation officer told her she could work as a mystery shopper where she would drive around to supermarkets and prepare a report.
45 The plaintiff’s medication intake means that she is sometimes “spaced out” and unable to focus. That worries her immensely because of her responsibility for her children. At times, the plaintiff simply has to avoid taking too much medication so she can keep her wits about her to look after them and then her pain levels increase.
46 The plaintiff generally tries to avoid bending. She normally bends her knees and then gradually goes down, bending. She experiences jarring and a shooting pain if she goes further.[9]
[9]T39
47 As pain and suffering having been conceded, I do not propose to deal with the other serious consequences; namely, the plaintiff’s inability to do housework, the diminution of her social life, problems looking after her children and playing with them and problems with mobility.
Surveillance
48 A schedule of surveillance was provided indicating that from 21 August 2007 until 15 October 2013, there were 83.5 hours’ surveillance from which 25 minutes of film was produced.
49 The plaintiff agreed that in the first film of 19 July 2012 (10 minutes), she was initially shown limping, walking down the street. She agreed when shown at the supermarket later that day, she was not limping, explaining that the Endone worked straight away. She agreed she was shown bending spontaneously picking up a bag of potatoes in her right hand.
50 The plaintiff thought she looked spaced out at the supermarket. At that time, she was taking heavy dosages of Endone.
51 The plaintiff took Slow Release MS Contin on the morning of the hearing and had been taking Panadol during the day.[10] The current medication does not dope her out as much as her previous regime but she feels a lot more pain.
[10]T43
52 There was 13 minutes film on 16 August 2011. The plaintiff was seen at times walking slowly and limping. At other times, she was walking normally, although she noticed a slight limp. The plaintiff then sat for 10 minutes or so on a bench at the front of a house.
53 The plaintiff was shown attending a saddlery shop wither children on 24 September 2011. She was with a friend who had driven her there. She was shown bending forward to look at an item and another time, she squatted on her heels looking at something on a shelf.
54 The plaintiff agreed she was shown moving around but explained this was the case as she had taken medication as she was not driving.
Wage details
55 A schedule of earnings set out that in the 2001-2002 financial year, the plaintiff earned $43,680, or $840 per week; in the financial year 2002-2003, she earned $43,512, or $836 per week; and in the financial year ending 30 June 2004, she earned $48,420 gross, or $931.15 per week.
The Plaintiff’s treaters
56 The plaintiff was under the care of Dr Omarjee whilst in Mildura. His two reports predate the 2008 surgery so they are of little assistance when considering the present application.
57 Similarly, Mr Oatey, the treating neurosurgeon, reported in February 2007 and March 2007 before the plaintiff was ultimately seen by Professor Fraser later that year. He undertook a left L5-S1 microdiscectomy on 21 June 2001 and a redo left L5-S1 microdiscectomy and foraminotomy on 22 February 2007.
58 Professor Bittar, neurosurgeon, saw the plaintiff in 2008 and initially elected to defer surgery, when an MRI scan suggested the presence of discitis and osteomyelitic.
59 Professor Bittar noted the plaintiff had been seen by an infectious diseases specialist and had undergone a needle biopsy of the disc space in March 2008. That biopsy did not reveal any infection but in view of the seriousness of the surgery, Professor Bittar elected to arrange for the plaintiff to undergo a microdiscectomy with open biopsy, which was performed by Dr Jithoo.
60 Professor Bittar noted that after those procedures, it had become apparent there might be some personality or psychological factors which may not make the plaintiff a good candidate for major spinal surgery. On that basis, Professor Bittar was unwilling to proceed with a two-level anterior interbody fusion at that time. He then thought the most appropriate form of treatment was a comprehensive pain management program and if that failed to yield any significant benefit, the plaintiff be referred to another spinal surgeon in Melbourne for a further opinion.
61 Professor Fraser reported in November 2010, having last seen the plaintiff in July that year.
62 The plaintiff then indicated her pain had increased a little since the twelve-month follow up and she was depressed about the continuing pain and the effect it was having on her life. He noted the CT scan of the lumbar spine showed a stable, although incomplete, fusion at L4-5.
63 In Professor Fraser’s view, given the persistence of symptoms and the difficulty the plaintiff had experienced in coping, it seemed unlikely she would be able to resume work other than of a light physical nature.
64 Professor Fraser was not aware of any non work related factors that had had a significant impact on the plaintiff’s ability to carry out her work, noting clearly the need for repeat surgery and the prolonged period of recovery had had an adverse effect.
65 Professor Fraser thought it unlikely further surgery would be appropriate and he advised the plaintiff to increase her efforts to improve her fitness and her trunk muscle control and improve the way in which she used those muscles to adequately protect her back during daily activities, suggesting regular exercise.
66 Professor Fraser thought it unlikely that other measures would be of help to the plaintiff, noting the prolonged use of narcotic medication was unlikely to be helpful for her recovery and that resolution of her claim and assistance in weaning her from narcotic medication would be likely to be of benefit to her wellbeing overall.
67 Dr Janovic, pain clinician from Caulfield Pain Management, reported in September 2010 after the plaintiff presented for assessment.
68 On physical examination, the plaintiff had slight limitation of lumbar spine movement and straight leg raising was limited bilaterally to 40 degrees. There was limitation of left foot flexion but no major tenderness.
69 Dr Janovic noted the plaintiff had failed back surgery and of concern, she was on large doses of opiates and they needed to balance her expectations of a dramatic response with a more realistic outlook.
70 Dr Janovic noted the significant sleep disturbance and thought it would be worthwhile adding in a low dose of Endep. He advised they could look at other alternatives. He had arranged for the plaintiff to have a full team assessment with a view to exposing her to some pain management strategies. He noted she had had little in the way of physical therapy and he thought she needed a multidisciplinary approach.
71 Dr Janovic felt there was scope for significant improvement in the plaintiff’s condition but it was a process that would take some time.
Medico-legal evidence
72 Mr Moran, orthopaedic surgeon, saw the plaintiff in August 2013.
73 The plaintiff told him of low back pain present most of the time and restricted movements. She had pain down her left leg to the calf, present most of the time. She had constant numbness on the outside of the left foot and lower left leg.
74 Mr Moran thought the plaintiff had sustained an L5-S1 disc prolapse in the incident and her condition had stabilised.
75 As a result of her injury, Mr Moran thought the plaintiff was permanently restricted in relation to employment or activities involving bending, lifting, twisting or stooping; pushing, pulling or lifting; repetitive pushing, pulling or lifting; repetitive and/or prolonged use of the back; overhead activities; prolonged sitting, walking or standing; walking up inclines or down inclines; using steps or ladders, and fine and manipulative use of her back.
76 On a permanent basis, Mr Moran thought, as a result of her injury, the plaintiff did not have the capacity to perform her light duties.
77 Mr Moran thought the plaintiff was theoretically capable of part-time clerical duties, initially working two hours a day, two or three times a week. She told him, however, she could only sit for about twenty minutes and with the hours to be initially worked, plus the fact that she can only sit for that time, he thought it was unlikely the plaintiff would find employment.
78 Mr Moran thought it likely the plaintiff, in the future, would have intermittent low back pain and pain down her left leg to her calf. She was likely to have permanent restriction of back movements and numbness on the outside of her lower leg and left foot. He thought she had an increased likelihood of damaging a disc or discs in her lumbar spine above L4-5 and L5-S1 and it was likely in the future she would continue to require analgesic medication.
Vocational assessment
79 Leone Schneider from Australian Vocational Link provided a vocational assessment in August 2013, having interviewed the plaintiff for five hours with breaks.
80 Ms Schneider noted that the plaintiff had periods of about twenty to thirty minutes at a time lying on the floor; twenty to twenty-five minutes of standing with cautious constant movement; and five but mostly ten minutes in a seated period.
81 Ms Schneider noted that the longer the plaintiff remained out of the workforce the more likely she was to have no current work capacity. She thought the plaintiff had no capacity for any work for which she was qualified, trained, experienced and skilled.
The Defendants’ medical evidence
82 Mr Shannon, orthopaedic surgeon, examined the plaintiff before the 2008 operations. Therefore, his opinion is of limited assistance.
83 At that stage, he thought the plaintiff would never get back to physical work and that she did not have a current work capacity. He thought she would get back to office work in the future.
84 When Mr Scott, orthopaedic surgeon, examined the plaintiff in August 2011, he noted there was evidence to suggest there was an incomplete fusion from the last procedure.
85 Mr Scott thought the plaintiff was unfit for pre-injury duties and hours.
86 Mr Scott noted the chronic pain had been incompletely controlled with pain management at this point in time by the use of antidepressant medication and that was associated with a markedly reduced range of movement with minor ongoing lower limb radiculopathy.
87 Mr Scott believed it would be difficult to fit the plaintiff into the workforce. He thought she might be able to take up very light clerical work part time where she did not have to sit or stand for more than half an hour, do any repetitive work and the job did not involve any stress at the workstation.
88 Mr Scott thought the plaintiff might be able to do this work, maybe one or two hours a day, one or two days a week, first off and gradually increase, hopefully, over possibly a period of four to six months. That was by no means certain.
89 Mr Scott believed the plaintiff should be assessed by a psychiatrist concerning her ability to return to work in view of her apparent psychiatric problems with anxiety and depression.
90 Mr Scott thought the plaintiff’s chances of returning to the workforce were minimal but she could find some very light work and it would be probably in her best interests to attempt to engage in light clerical menial work.
91 Mr Scott noted there appeared to be significant anxious depression and emotional symptoms, magnifying the overall presentation.
92 Having viewed the vocational assessment report, Mr Scott believed the plaintiff would have difficulty coping with full time work or possibly part time work. He thought it might be of value for her to be reviewed in the Pain Management Clinic. He considered the prognosis was poor.
93 Dr Bloom, occupational physician, examined the plaintiff in October 2013.
94 The plaintiff denied being depressed but said she was anxious, and constant niggling pain worried her. When asked whether she could return to some form of employment such as bookkeeping, she responded by saying she did not think she could concentrate.
95 Dr Bloom noted the plaintiff alternated her posture throughout the interview. She was of flat affect and appeared quite sad and anguished at times. She walked with a very slight limp.
96 Dr Bloom thought the plaintiff would be best described as suffering with failed back surgery syndrome. He thought there was no doubt that she initially suffered a prolapsed intervertebral disc that resulted in left L5 radiculopathy and that there was clinical evidence of persisting radiculopathy characterised by absent left ankle reflex and reduced sensation in the distribution of the L5‑S1 nerve root.
97 Dr Bloom had no reason to doubt the plaintiff’s veracity and there was no doubt she was prone to low back strain, and the resulting acute prolapsed intervertebral disc was the result of an aggravation of her pre-existing condition.
98 Dr Bloom noted it was apparent the pain at times had been quite debilitating and had resulted in a necessary change in lifestyle and activity levels.
99 Dr Bloom thought it was not at all surprising, therefore, the plaintiff had developed a degree of psychological response to this chronic pain state and it was also most likely that this adverse psychological response would presumably serve to heighten the pain perception.
100 He thought that syndrome was invariably associated with adverse psychological reaction and manifested itself in the increase in the perception of pain and disability, frequently resulting in fear avoidance behaviour of which he found clear examples on examination with very restricted movement, the positive axial loading sign, widespread tenderness to very light skin touch and a degree of collapsing weakness in a widespread distribution.
101 Having said that though, Dr Bloom thought it was also clear that there were clinical signs of radiculopathy which meant the plaintiff had indeed sustained a significant disc injury which had not responded well to surgery. He thought there was a likely physical cause of much of her pain but it was likely her perception of that pain had been heightened by an adverse pain response.
102 Dr Bloom thought, had the plaintiff not had any adverse psychological response, it was likely she would have returned to some form of administrative duties for which she had experience and ability and did not involve any physically demanding work. He also thought that it was likely the reason she had not returned to such duties was the family business had closed down and she had to look after the two children.
103 Dr Bloom thought it likely, although by no means absolutely certain, that if the plaintiff’s original job had remained available, she would have returned to work at least on a part time basis.
104 Dr Bloom noted the plaintiff reported a reasonable degree of functional capacity, having driven three hours to the appointment and she was doing the housework and shopping for the children aged eight and six.
105 From a purely physical point of view, Dr Bloom thought the plaintiff was able to function and potentially to work within the following restrictions: namely, avoiding prolonged static posture; avoid activities requiring repetitive twisting or rotation and limited repetitive manual handling to about 6 kilograms. With those conditions, he thought it would not be unreasonable that she would be able to undertake clerical or bookkeeping duties for up to twenty hours a week, particularly starting on a graduated basis, building up to twenty hours over three months, starting three hours, three days a week, with a gradual increase to four by five days.
106 Dr Bloom concluded the primary barriers to such work activities would be lack of job opportunity, the fact the plaintiff is a single parent of two very young children and possibly she lives on a property out of town.
107 Dr Bloom reviewed the NES vocational assessment report of 6 September 2012 and the job seeker plan of 6 August 2013.
108 From a purely physical point of view, he thought the plaintiff was capable of work as a receptionist/administration/customer officer, mystery shopper/other sales support work and fleet controller or transport dispatch clerk. He concluded that the three listed occupations involved tasks not physically demanding and not more physically demanding than the sort of activities the plaintiff was doing at home.
109 Dr Bloom thought there would be no physical contraindication to returning to at least part time work of twenty hours per week.
110 Mr Roy Carey, orthopaedic surgeon, examined the plaintiff in January 2014.
111 On examination, movements of the lumbar spine were grossly restricted because of pain and the plaintiff walked with a rather stiff leg gait but no specific limp. There was an absent left ankle jerk. There was altered sensation to pinprick and light touch over the whole left lower limb, below the knee and a little bit over the lateral left thigh.
112 Having seen the recent imaging, by the CT scan of June 2013, Mr Carey noted of interest was the quite marked facet arthropathy evident at all levels visible above the fusion.
113 Mr Carey thought the plaintiff had constant back and left leg pain in the presence of a left S1 radiculopathy. He noted the fusions were sound and that the plaintiff now had a significant chronic pain problem relating to the surgically treated lumbar disc disease. He thought the presenting symptoms now resulted from a claimed incident in February 2007 and subsequent infection and fusion.
114 Mr Carey advised he was a spine surgeon, not an occupational physician, when asked to comment on employment capacity. He would be happy for the plaintiff to do what she wished within limits of any discomfort and would indeed encourage as much physical activity as she was able to, including appropriate work. But he had noted, on the other hand, she had not worked for nearly seven years, had no retraining and her pain management rehabilitation had been suboptimal and her retraining had been perfunctory. He thought it appropriate to recommend reassessment by an occupational physician such that the plaintiff could be directed into appropriate retraining. He concluded it was obvious the plaintiff should never return to the sort of physical heavy duties she was doing at the time of the incident.
The Defendants’ vocational evidence
115 There was an initial worksite assessment report carried out by CRS in April 2007. The plaintiff agreed that she was, at that time, doing office duties, including computer based financial work, MYOB, financial figures, answering telephones, data processing, entering dockets, quotes, paying bills and other general office duties as required.
116 In a July 2001 CRS progress report, it was noted the plaintiff indicated that pre packing was approximately less than 10 per cent of her job and occurred spasmodically throughout the year, usually between October and April in blocks of time; for example, two times a week, once a month.
117 The plaintiff reported pre packing involved a significant amount or repetitive lifting, bending and reaching over in a six-hour period. According to the plaintiff, as there were long periods of time between each pack, she often found she was very physically sore after a day of packing as the task was quite physically demanding.
118 It was suggested by NES, following a referral in July 2012, that in order of priority, the following jobs were suitable options for the plaintiff: receptionist/administration customer service officer, $725 per week; mystery shopper/other sales support worker, $1,150 per week, and fleet controller, transport despatch clerk, $1,035 per week.
119 Similar jobs were reproduced in the NES job seeker plan dated January 2013.
Overview
120 There is no dispute that the plaintiff suffered a compensable injury to her lumbar spine requiring fusion at two levels - L4-5 and L5-S1.
121 Whilst there is some suggestion the plaintiff is depressed, the impairment to her lumbar spine clearly has a significant organic basis.[11]
[11]See Meadows v Lichmore Pty Ltd [2013] VSCA 201
122 As pain and suffering has been conceded, the only issue for determination is loss of earning capacity.
Credit
123 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[12]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[12](2010) 31 VR 1 at paragraph [12]
124 I found the plaintiff to be truthful witness who gave evidence conscientiously, although in significant difficulty with pain. As I indicated to counsel during the hearing, the plaintiff was clearly in some distress giving her evidence, being unable to sit for any period.
125 Whilst the plaintiff was under surveillance for a number of years over many days, there was only 25 minutes of film relied upon. During that film, the plaintiff was not shown engaging in any strenuous or repetitive activity and at times, she was shown limping and appeared to be affected by medication.
126 I do not accept that the plaintiff exaggerated her symptoms, as counsel for the defendants submitted. I am satisfied the plaintiff suffers constant back and leg pain in the presence of a left S1 radiculopathy.
127 I prefer the examination findings of orthopaedic surgeons who found neurological abnormality on examination consistent with L5-S1 radiculopathy, rather than occupational physician, Dr Bloom’s findings of non organic factors on examination.
128 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
129 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.
130 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
131 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
132 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
133 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein - See Barwon Spinners Pty Ltd & Ors v Podolak.[13]
[13](Supra) at paragraph [70]
134 I am therefore required to determine a “without injury” earnings figure. Both parties agreed $48,420, the plaintiff’s gross earnings in the 2004 financial year, was the appropriate figure.
135 The plaintiff must establish that she does not have the capacity to earn more than 60 per cent of that figure – $29,052 or $558 per week – on a permanent basis.
136 No suitable employment options were put to the plaintiff in cross-examination.
137 The defendants’ case at its highest was based on Dr Bloom’s most recent opinion that the plaintiff would have the capacity to work at least twenty hours per week. He had earlier expressed the view the plaintiff had the capacity to work up to twenty hours.
138 Working twenty hours in the suggested job of receptionist/administration customer service officer, the plaintiff would earn $313 per week.
139 Whilst he is the only occupational physician who has examined the plaintiff, Dr Bloom gave no explanation for any increase in the plaintiff’s working capacity. In any event, the restrictions he placed on the tasks the plaintiff could perform were such that it is hard to see what job existed that met that description.
140 Mr Carey did not specify the hours he thought the plaintiff could work, simply commenting that she could work at her own pace, but a return to work would prove difficult given her long absence form the workforce.
141 Whilst Mr Moran did not have a specific history of the plaintiff having engaged in clerical work, he considered it as an option but dismissed it as unsuitable for her.
142 Mr Scott, in 2011, thought it would be difficult to fit the plaintiff into the workforce. He was not optimistic she could perform other than very light clerical work for more than a couple of hours a day.
143 Given the nature of the plaintiff’s condition, the absence of a report from her general practitioner does not cause me particular concern when assessing the plaintiff’s present capacity for employment.
144 I am not satisfied, given the preponderance of medical evidence and also my observations of the plaintiff in the witness box, whom I felt to be very credible, that the plaintiff has the capacity to engage in any sedentary work where she is required to sit for more than a few minutes. Further, her pain level and her intake of medication would affect her ability to concentrate on any work tasks.
145 I am satisfied that this situation will continue into the foreseeable future. Despite the plaintiff’s understandable optimism as to some improvement, the pain management program is not curative and, in my view, any potential gains would not alter the plaintiff’s present situation to any significant extent.
146 In these circumstances, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of 40 per cent and that such loss is permanent.
147 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
148 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
149 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity, pain and suffering having been conceded.
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