Ruleska v Union Knitting Mills
[2009] VCC 152
•10 March, 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
| AT MELBOURNE CIVIL DIVISION |
Case No. CI-07-02085
| ILKA RULESKA | Plaintiff |
| V | |
| UNION KNITTING MILLS (TRADING AS | Defendants |
| JOCKEY AUSTRALIA) & ANOR |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 and 26 November 2008 |
| DATE OF JUDGMENT: | 10 March, 2009 |
| CASE MAY BE CITED AS: | Ruleska v Union Knitting Mills & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0152 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application; whether consequences of injury to low back meet the test for “serous” injury under part(a) of definition; leave sought for pain and suffering and pecuniary loss damages; s.134AB Accident Compensation Act 1985 ss (38) (c),(e) (f) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Colquhoun | Patrick Robinson & Co |
| For the Defendants | Mr J Ruskin QC with | Wisewoulds |
| Ms S Manova | ||
| HER HONOUR: |
1 Mrs Ilka Ruleska worked as a machinist sewing clothing for the first defendant from December 1995 until the factory closed in August 2001. She claims to have suffered injury to her low back during that employment. To bring a claim for damages in respect of that injury she must satisfy the court that she suffered a “serious injury” under the provisions of s.134AB Accident Compensation Act 1985 (the Act). She relies on part (a) of the definition of “serious injury”, alleging that she suffered permanent serious impairment of the function of her lumbar spine. She seeks leave to bring a claim for damages for both pain and suffering and loss of earning capacity.
2 It is not disputed that on 22 August 2000 Mrs Ruleska saw the company doctor for back pain, which she said had been coming on over the preceding months. She was prescribed medication, physiotherapy and hydrotherapy, and certified for light duties for 3 months. She continued to work at the same job but at her own pace until retrenched when the entire factory closed in August 2001. It is also not disputed that radiological investigations over later years[1] show lumbar disc damage, but the cause of those changes is in dispute.
[1] Exhibit H
3 The plaintiff’s case is that in the months leading up to 22 August 2000[2] she suffered an injury involving damage to her lower lumbar discs, or, alternatively, aggravation of pre-existing spondylosis, as a result of the posture and movements necessitated by the work process at her sewing machine, including leaning sideways to position garments, twisting in a seated position, and lifting piles of garments to the side, all while needing to meet an output quota. She claims that the consequences of that injury on her daily living and enjoyment of life are permanent and serious enough to meet the test of being “more than significant or marked” and “at least very considerable” when judged by comparison with other cases in the range of possible impairments of a body function[3]. She also claims that as a consequence of that injury she has been effectively left with no work capacity as she is permanently disabled from manual work, and lacks educational or language skills to retrain for any other employment.
[2] The defendant does not argue that the claim is excluded for having been caused by employment before 20 October 1999 – T60, line 18.
[3] S 134AB(38)(c)
4 The defendants’ case is that:
[4] Dr Malcolm Brown and Mr Clive Jones
[5] Professor Balla
[6] Mr Brazenor
[7] Section 134B(38)(e), (f) and (g)
• the back pain reported by the plaintiff in August 2000 was either due to naturally occurring degenerative processes in her spine[4] or, if due to an injury in the course of her employment over the previous six months, such injury was in the nature of lumbar strain[5] or exacerbation of underlying lumbar changes[6], and the effects of any such injury were temporary, and not serious enough in their consequences to satisfy the tests for “serious injury”; • the plaintiff’s ongoing complaints of pain are now largely psychologically based and too difficult (the burden of proof being on the plaintiff) to unravel or “disentangle” from any work-related organic cause; • in relation to her earning capacity she has not suffered a permanent loss of earning capacity of 40 per cent or more.[7] 5 The evidence in the case was contained in the documents set out in the attached Schedule, and the oral evidence of the plaintiff and of Mr Brian Barrett, orthopaedic surgeon, who was called for cross-examination.
Plaintiff’s background
6 Mrs Ruleska is now aged 51. She was born in Macedonia, left school aged 17, and worked in a textile factory there for some 11 years. She married and had two children who are now adults. She came with her family to Australia in 1995, and in December of that year started work with the defendant as a machinist, sewing underwear and blouses. She worked five days a week, 8-hour days, and in the early years there was plenty of overtime. In late 1998 and early 1999 she also worked evenings at a casual job, cleaning school classrooms.
7 There is nothing to indicate that she suffered any previous illness or injury which would interfere with her daily activities or enjoyment of life, or with her capacity to work in manual employment.
The alleged injury
8 On 22 August 2000 Mrs Ruleska attended the work doctor, Dr Sher, complaining of back pain in the mid-thoracic area which had been present over 6 months but worse and radiating to the right side over the last 3-4 weeks, and which was aggravated by sitting. Dr Sher diagnosed lower back pain, prescribed anti-inflammatory medication, physiotherapy, and hydrotherapy, and certified her for light duties for three months. Dr Sher obtained an x-ray which he reports showed minimal spondylitic change at L3/4 and L4/5 which he considered normal[8]. Her duties in fact remained the same for the remainder of her employment, but she was allowed to work at her own pace rather than meeting quotas while certified for light duties[9].
[8] Exhibit C
[9] Confirmed in statement by her supervisor – Exhibit 11
9 An injury report was made to the employer and a work rehabilitation program to accommodate her low back and wrist injury was documented in October 2000[10].
[10] Exhibit 9
10 At about the same time as developing back pain, she also developed a ganglion on her right wrist, and subsequently pain in her left wrist, for which she also attended Dr Sher in February 2001 and had physiotherapy and medication. She worked on, but says she was having great difficulties due to pain in her left wrist and in her back when sitting for any lengthy periods of time. Dr Sher certified her unfit for her pre-injury duties on 24 July 2001[11], but it is unclear from his report whether that was due to her back or left wrist.
[11] Exhibit C, p2
11 Mrs Ruleska was retrenched on 10 August 2001 as were all other workers when the factory closed. She has not worked since.
12 I accept from her evidence and the contemporaneous report to Dr Sher and to the employer, that she experienced low back pain radiating to the right, and some limitation of movement associated with it, and that that was a result of the posture and movements required of her at her sewing machine in the months leading up to 22 August 2000. I also accept that she was still experiencing symptoms of that injury when retrenched a year later, but that they had not been totally disabling while she was allowed to work at her own pace.
Subsequent history and treatment
13 In mid-2001 Mrs Ruleska attended her local GP, Dr Lifson. Her complaints and treatment concentrated on her wrists and hands, and he referred her to a plastic surgeon, Mr Dixon, who operated in May 2002 for de Quervain’s tenosynovitis of the left wrist, relieving some but not all of her left wrist symptoms.
14 Although Mrs Ruleska states[12] that her back started to get worse, and she saw Dr Lifson for it on 17 February 2003, I am satisfied that she had had continuing low back pain in the meantime although her wrist problems had predominated. Dr Lifson’s reports confirm that she first mentioned low back pain to him at a consultation for her wrists on 17 February 2003, and told him she had been experiencing it for the past two years[13], and it had persisted since she left work[14]. He prescribed treatment of physiotherapy and anti- inflammatory tablets.
[12] Para 6 of plaintiff’s affidavit 25/10/06 – Exhibit A
[13] Exhibit 2, p2
[14] Exhibit D – report 7/12/03
15 Consistent with continuity of complaint of back pain between ceasing work and the first mention of it to Dr Lifson, she was seen for the defendants by Mr Buzzard in August 2002[15] and reported ongoing low back pain to him, as well as the wrist problems.
[15] Exhibit 1
16 There were plain lumbar spinal X-rays performed on 15 October 2003, showing normal general alignment throughout the lumbar spine, with some slight L5–S1 intervertebral disc narrowing. Dr Lifson reports in December 2003 that he had referred Mrs Ruleska to Dr T. Woods, a specialist in Sports Medicine and Musculoskeletal Medicine, who recommended a spinal injection, which she refused as the results could not be guaranteed.
17 In April 2004 she was referred for a CT scan of her lumbar spine[16], which revealed a moderate degree of L4–5 generalised disc bulging, pushing against the lumbar theca. At L5–S1 disc there was marked osteoarthritic change of the right posterior facet joint, with a large bony osteophyte pushing into the vertebral canal from the right, and some posterior narrowing of the right intervertebral canal close to both the right L5 and S1 nerve roots.
[16] Exhibit H
18 In April 2005 she was referred to Mr Peter Wilde, orthopaedic surgeon, who took a history of persistent back pain with referred symptoms into her right buttock and leg since ceasing work, not much alleviated by physiotherapy or pain killers. She described the level of pain as 5 to 6 on a scale of 10. She told him she could shop, cook, drive and do light housework but was unable to do normal housework or the garden, and that the pain was worse on bending, lifting and twisting, and lying down would ease it. Mr Wilde described this as having mechanical quality[17]. He assessed her spinal function and daily living activities as revealing that the pain intensity was severe. Painkillers gave little relief, and her sleep was reduced to 6 hours, and pain restricted social life but she could walk up to one kilometre, sit for an hour, stand for half an hour and could manage journeys in the car over 2 hours.
[17] Exhibit E, 3/7/06, p2
19 On physical examination he noted that she stood with a normal spinal posture and tended to exaggerate findings slightly, which he described as demonstrating non-organic illness behaviour. He found lumbar movements restricted by pain but was not convinced of any neurological deficit in he lower limbs.
20 Mr Wilde examined the CT lumbar scan of April 2004, noted mild to moderate spinal canal stenosis at L4/5 and significant degeneration and osteophyte formation at the right L5/S1 facet joint, and ordered an MRI. His view was that the MRI showed facet and disc degenerative changes with mild sub-articular stenosis at L4/5 and to a lesser extent at the lumbosacral level, but there was no central or exit foraminal stenosis and no significant evidence of nerve root compromise.
21 He advised that she would not benefit from surgery, and that even a lumbar epidural or nerve root block was unlikely to help. He felt that her almost non— existent English meant that a pain management program would be unlikely to succeed, but raised as a prospect a referral to the Barbara Walker pain management service at St Vincent’s hospital if pain became an issue.
22 Mr Wilde’s diagnosis was lumbar spondylosis without radiculopathy, which was aggravated by employment in 2000, and which was likely to leave her with low-grade symptoms of chronic lumbar pain and stiffness, requiring her to modify personal and work activities to accommodate her symptoms and to avoid further deterioration.
23 In June 2007 she was referred by Dr Lifson to Mr Brian Barrett, orthopaedic surgeon for further specialist opinion. At the time, she complained to him of low-back pain radiating out into her right buttock, and pain also radiating into the left posterior thigh more recently, with some symptoms in the left heel and foot. She said that her symptoms were not improving, and the pain was only helped by taking analgesics, which she required on a regular basis, and also by lying down. She told him that the pain became worse with prolonged walking, standing, and sitting.
24 Mr Barrett found her to be moving slowly and stiffly, and tending to be in a forward bent position, and noted moderately limited movements of her lumbar spine. He reviewed the radiological investigations, including, by then, a more recent CT scan of 23 May 2007, which he considered showed some increased L4–5 lumbar disc bulging when compared with the earlier one of April 2004, and which he said now showed more on the left than the right at L4–5. The L5–S1 disc again more on the left than the right, had not altered since the MRI of September 2005.
25 Mr Barrett’s opinion was that taking the radiology reports together with her complaints of first experiencing low-back pain in June 2000, radiating into the right buttock area and some time later down the left leg, she had suffered painful ruptures involving the L4–5 and L5–S1 lumbar discs associated with left-sided disc bulges, producing left L5 and S1 nerve-root sciatica.
26 He considered her quite unfit to return to her pre-injury employment as a machinist or even light and part-time alternative work, and felt that would continue into the future. His view is that lumbar disc ruptures have no significant ability to heal or repair, and the prognosis for the future for her was that her current symptoms and disability would continue into the foreseeable
27 Mr Barrett re-examined the plaintiff in September 2008 – for this case and not for treatment purposes. She complained that the pain was not improving, and in fact appeared at times to be worsening, and she was not able to manage any heavy housework without increasing her back pain, and required regular analgesics to control her symptoms, and needed medication to help her sleep.
28 His opinion remained as in November 2007, and that she had made no significant progress since he had last seen her. He accepted that she continued to experience significant and quite disabling and limiting symptoms, and had a limited capacity to manage her normal housework. His opinion was that she had no capacity to return to either her pre-injury employment or even lighter and part-time work, now or into the foreseeable future.
29 He confirmed that her employment was a significant contributing factor to her lumbar spinal injury from the bending, twisting, and lifting component of her work up until 25 June 2000. The physical and organic nature of her back injury was the cause of her symptoms and disability which had prevented her from engaging in her pre-injury employment or even alternative light and part- time work.
30 Mr Barrett was closely and skilfully tested on cross-examination during the hearing, and I found his responses convincing. He confirmed that the patient history[18] was an important aspect of his opinion going to the basis of the causation of the pain, but that he follows it with clinical examination and study of radiology, in which he always looks at the films himself, and not just at the radiologists’ reports.
[18] Other than the plaintiff’s description of her levels of pain and disability, which depend on her reliability as a witness, in my view there is nothing of moment in the various histories given to doctors by the plaintiff including to Mr Barrett. In particular, there is nothing to suggest other than that she first experienced back pain in mid-2000 in the course of working at her sewing machine at the defendant’s
Did the plaintiff suffer a compensable injury to her lower back – and if so, what was the injury?
31 The medical opinions range from there being no compensable injury (Mr Jones and possibly Dr Brown), through there being injury by way of a lumbar strain (Dr Balla, possibly Mr Buzzard) or temporary exacerbation of underlying lumbar spinal degeneration (Mr Brazenor), to there being permanent aggravation of the underlying spondylosis (Mr Wilde, Mr Simm) or distinct lumbar disc injury( Mr Barratt, Mr Carey).
32 Mr Clive Jones19, orthopaedic surgeon diagnosed symptomatic lumbar disc degeneration which he thought was unrelated to her employment duties20, and degenerative in basis21. He did not comment on the cause of onset of symptoms.
33 Associate Professor Balla, consultant neurologist, examined the plaintiff for the defendant in August 200822. His view was that the original onset of pain could have been musculo-skeletal strain which could have been work related but that there was no indication of nerve root impingement or a disc lesion of any sort, and he did not believe that her present symptoms are in any way related to it. He did not believe the degenerative changes are sufficiently severe to cause ongoing severe pain, and therefore believed it is likely to be non organic factors that are causing her problems. He expected little change in the future but from the physical point of view did not believe that any changes in her degenerative disease in the lumbar spine would be work
factory, but without any specific precipitating incident.
Exhibit 5
Report dated 19/3/07
Report dated 21/5/08
Report 19/8/08 – Exhibit 8
related. He did not believe that any organic cause was putting significant
limitations on her activity as a machinist or similar types of employment.34 Mr Brazenor, neurosurgeon, also examined the plaintiff for the defendant in the month before the hearing[23]. In his view the CT scan of 21/4/04 and the MRI of 13/9/05 have been over-reported in that he thought the canal stenosis at L4/5 was very mild and not “mild to moderate” as reported, and that there is no significant compression of the right S1 root on the MRI whereas it was reported as showing “minor distortion of the right S1 root”. He found the plaintiff on physical examination to be overreacting, including describing pain around the right side of her ribs, and overly limited straight leg raising, which he took to be a functional response.
[23] Exhibit 7 – report dated 27/10/08
35 Mr Brazenor’s opinion was that the plaintiff has degenerative changes in her lumbar spine, within normal limits for her age, and that the “apparently disorganized” right-sided L5/S1 facet joint was because of the congenital spina bifida occulta extending into that joint. He did not see any change over the four year period spanning the radiological investigation, and regarded that as powerful evidence that these are chronic and every slowly evolving changes, and not injuries. He did accept that the degenerative changes in her lumbar spine may have been exacerbated by her work as a machinist but believed that that exacerbation would have ceased within at most 6 months of her ceasing work.[24]
[24] Paragraph 7 on page 5 of report
36 Dr Malcolm Brown[25], occupational physician retained by the defendant, gave the opinion that there is no objective evidence of a significant medical condition in relation to her back pain and wrist pain. He did not explain this in light of the CT and MRI reports which he notes. As all other doctors who have seen those scans accept that they show underlying cause for complaints of back pain, even if some do not believe the condition is work-related or believe that she exaggerated her limitations of movement in her back, I do not accept this conclusion of Dr Brown.
[25] Exhibit 6
37 Mr Rodney Simm, orthopaedic surgeon, provided a report for the plaintiff in October 2008[26] . His opinion was that as a result of postural strain from prolonged sitting in the forward bent position and repeated lifting she had aggravated pre-existing degenerative lumbar pathology. The pathology of her lower back pain is degenerative and is due to constitutional factors, but the work postures led to the initiation of symptoms from the underlying degenerative pathology and caused ongoing aggravation of the pathology. He considered that the persistence of the pain after initial activation, without any sustained period of recovery would suggest that the work aggravation had not resolved, and he considered it will persist with no prospect of improvement and there may be a gradual deterioration with aging.
[26] Exhibit F
38 Mr Robert Carey’s opinion, although given to the defendant before there were CT or MRI scans, was that the plaintiff’s lower back has features of being due to a lumbar inter-vertebral joint injury with probably injury involving the inter- vertebral disc, without neurological complication[27].
[27] Exhibit 3
39 Mr Barrett gives the strongest support to a diagnosis of discal injury caused by her posture and movements at her sewing machine during the middle of 2000. He conceded that the bulges shown on the radiological studies were minor, but says that the CT and MRI scans are all taken with the patient horizontal and that when the discs are “loaded” with the patient upright these bulges would be much greater[28]. He said that the lower lumbar discs which showed posterior bulges on the scans necessarily had some sort of split in the outer layer (annulus) of the disc to appear in this manner on the MRI[29].
[28] T 39-40
[29] T 39
40 Mr Brazenor’s opinions were put to Mr Barratt in detail, and he acknowledged but did not find it strange that he had reached a different opinion on the CT scan than had Mr Brazenor, a neurosurgeon. He ascribed that to the possibility that having been an anatomist himself early in the piece, he might take a more mechanical view of the anatomy than Mr Brazenor would. He agreed with Mr Brazenor’s view that there was no significant stenosis or narrowing, and confirmed that what he called an osteophyte was what Mr Brazenor characterised as a congenital spina bifida lesion at L5–S1. He said however that they both agreed that it was an osteoarthritic joint, on looking at the posterior facet joints on the right compared with the left. He remarked on some deterioration at the L4-5 level over the four years between CT scans of it, whereas Mr Brazenor said that there had not been any such change. Mr Brazenor had relied on that lack of change to support the view that there had been minimal deterioration of the underlying spinal condition. Mr Barratt said that he viewed the actual scans himself to reach his conclusion.
41 The artificiality of having to decide between conflicting medical opinions contained in reports over a number of years from well-qualified doctors in this type of application has been raised in a number of decisions in this court and in the Court of Appeal. In this case, at the defendants request, one doctor- Mr Barratt- was required for cross-examination. He had been the most recent orthopaedic specialist to see the plaintiff as a treating specialist. Mr Barratt did not resile from the opinion in his reports that the plaintiff had suffered discal injury due to her work conditions in mid 2000, and was permanently significantly disabled by the ongoing consequences of that injury which were likely to be permanent. For the purposes of this application I am satisfied on the balance of probabilities that his view of the injury and its cause is likely to be correct, although for reasons I shall explain I am less convinced on their degree of consequences on her working capacity.
42 Moreover, although Mr Wilde and Mr Simm differ in that they do not diagnose a discrete injury to lumbar discs, their views that her work conditions initiated or activated symptoms of her underlying degenerative lumbar spine which symptoms have become permanent, would also support a finding of compensable injury in this application.
Whether her symptoms are organically based – the “disentanglement” issue
43 The defendant relies on comments from Mr Buzzard, Mr Brazenor, Dr Brown and even Mr Wilde and Dr Lifson, to the effect that there was some evidence of exaggeration or a functional aspect to Mrs Ruleska’s presentation.
44 Dr Brown states that there is “clearly a functional component present” that “has been documented by the other medical assessors as well”. He says that this functional component appears to be the main issue. I note that of the medical reports which he lists as having been supplied to him, those supportive of the plaintiff’s case and which do not ascribe functional components are absent – ie reports of Mr Robert Carey and Mr Barratt that pre-date Dr Brown’s report. In the circumstances, I give minimal weight to his opinions.
45 Mr Wilde, who examined her as a treating specialist in 2005 did comment that she tended to exaggerate the physical findings slightly on examination, demonstrating non-organic illness behaviour. Nevertheless he confirmed an organic basis through the investigation reports for her complaints of pain. Further, I note that in describing her level of pain to him she put it in the range of 5-6 out of 10, and she described being able to do a number of domestic activities, and to walk and drive. If any exaggeration had been intentional or deliberate by her one would expect a sorrier picture to have been described.
46 Mr Simm, in October 2008, specifically noted Mr Wilde’s comment about exaggeration and reported that there was no evident exaggeration on his examination and her reported symptoms and the physical findings were consistent with the diagnosis[30].
[30] Exhibit F, paragraph 6 on page 5
47 In February 2004 Mr Robert Carey[31] found restricted movement on examination but made no comment about any non-physical aspect to her presentation.
[31] Exhibit 3
48 Mr Clive Jones commented that there were contradictory signs on physical examination so far as restriction of movement was concerned, and referred to these as indications of non physical features. However his initial diagnosis was of symptomatic lumbar disc degeneration, albeit not work related, and in his second report he believed “her back symptoms can be described as mechanical in nature, and degenerative in basis”[32].
[32] Exhibit 5, report of 21/5/08
49 Dr Nigel Strauss, consulting psychiatrist, assessing the plaintiff for the defendants two weeks before the hearing, found her not particularly anxious or depressed, but pre-occupied with her physical symptoms. His opinion was that she is suffering from a mild adjustment disorder secondary to her alleged back problem, and that she has some mild anxiety and depression as part of her adjustment disorder. He was not convinced that she has a psychiatric incapacity and his view was that any incapacity is physically based.
50 I am satisfied from the evidence of Mr Barrett, Mr Simm, Mr Carey, and Mr Wilde (despite his comment on slight exaggeration on examination), that there is pathology demonstrated on CT and MRI scans consistent with the plaintiff’s complaints of pain in her lower back, with some pain radiating into her right hip and buttock area. Mr Barratt was told and accepted from the pathology that more recently there has been some radiation into the left leg. Notwithstanding the views of Mr Buzzard (whose opinion was long before the CT or MRI scans), and Mr Balla and Mr Brazenor that any incapacity now is due to non-organic cause, the psychiatric opinion of Dr Strauss does not support there being a mental disorder causing her symptoms, and I am satisfied that there plaintiff is not deliberately inventing her complaints of pain.
51 The defendant tendered a report from a psychologist who has been treating the plaintiff, Ms Maksoni[33], which diagnoses an adjustment disorder with anxious mood, secondary to her physical injuries and to her back pain, and states that she is not yet ready to work in any other suitable employment due to her quite pronounced pain and due to her anxiety mood. I am not satisfied that this undermines the opinions of the orthopaedic specialists that the primary cause of her complaints of pain is underlying damage to her lumbar spine.
[33] Exhibit 10
52 I am satisfied on the balance of probabilities that even if her responses to several doctors as to restricted movement on physical examination have had a functional or exaggerated aspect to them, and accepting that there has been some secondary reaction of frustration, depression and anxiety to her ongoing back pain and its consequences, nevertheless the main cause of the symptoms of which she complains is organic – disruption in her lumbar spine especially at the L4/5 and L5/S1 levels. Further, I am satisfied that her employment conditions as a machinist with the first defendant caused or activated those symptoms.
Was there a “serious injury”?
53 The severity of consequences of the injury depends heavily on the credibility and reliablility of the plaintiff’s own version of her symptoms and how they affect her. My impression overall was that she was telling the truth as she saw it, and was not consciously exaggerating although her focus is clearly on this case. She gave her evidence through an interpreter which inevitably creates some barrier to assessment of her evidence. She seemed to me to remain composed and focused during her evidence. Overall I found her evidence reliable.
54 I am satisfied from her evidence and her various descriptions to doctors over the years that Mrs Ruleska has experienced pain and some stiffness on movement in her lower back ever since reporting it in August 2000. The pain is predominantly in her low back but radiating into her right buttock and hip and thigh area at times, and its intensity has fluctuated over the years but never fully ceased. Medication including anti-inflammatories, and pain killers, have been prescribed but given only partial relief. Physiotherapy and hydrotherapy were stopped when they were not assisting, and although the plaintiff refused an early suggestion of spinal injection[34], there has been no further invasive treatment suggested by specialists since, and in particular no one recommends surgery. Mr Wilde discussed a possible pain management program but nothing eventuated, and with her very limited communication skills in English the options for such a program are more limited. She currently takes Mobic as an anti-inflammatory, Panamax for pain, and Endep both to assist sleep and as an anti-depressant. The dosages are not high and she does not seem to be adversely affected in any significant degree by side effects of this medication.
[34] Apparently from a sports Medicine specialist, Dr in 2003
55 I find on the preponderance of medical evidence that her condition is unlikely to improve and may worsen in time. Her present symptoms and limitations are in this sense permanent.
56 The consequences to her daily activities, apart from pain, have been to limit her in housework to tasks that do not require protracted bending or lifting of weights, and vacuuming brings on worse pain and she leaves it to her husband. She cannot sit or stand for protracted periods, and although she still drives does not do so over long distances. She claims to socialise much less, but I am unsure whether that is a consequence of these injuries. I accept that it is significant to her that she has lost the companionship of her former workplace, but as it was to close in any event I do not count that as a consequence of her back injury.
57 In an objective sense it might be thought that the consequences of her injury on Mrs Ruleska’s daily life have not been significant – or not enough to reach the level required to satisfy the test of being serious enough for this application to succeed. I accept that her daily activities as described would often not amount to “more than significant or marked”, but they are to be viewed in the context of this particular plaintiff’s life (in contrast to her subjective view of them). Until she suffered injury at her workplace she had been actively running a household as well as maintaining full-time employment, all of which I accept gave her considerable satisfaction and some independence, having sustained her work and home since soon after arriving with her family in Australia. I am satisfied that the loss of that sense of achievement, and being confined to basic tasks at home, and being dependent on other family members for many of the household tasks she previously did without hesitation, does in her circumstances reach the level of being very considerable and more than significant or marked when compared with others’ loss of a body function.
Loss of Earning Capacity
58 To obtain leave to bring a claim for damages for loss of earning capacity the plaintiff must prove that as a result of the compensable injury she has sustained a loss of earning capacity of 40% or more, and will continue to do so permanently. The loss of earning capacity is to be measured by comparing her prospective “without injury” earnings from personal exertion, with those she has earnt or been capable of earning, or would be capable of earning with rehabilitation or retraining.
59 The plaintiff’s case is that her earning capacity has been completely destroyed because her injury has permanently rendered her unfit for her previous duties and due to her minimal command of English, and lack of other employment skills, she would be unsuitable for retraining.
60 The defendants argue that she has been suitable for a variety of employment options for which she would earn at least 60% of her pre-injury income.
61 The plaintiff’s case did not include her previous wage details, but I take as accepted the figures included in the Defendants’ Statement of Calculation of Economic Loss[35] . These include that in the 2 years (the 3rd preceding year - ending 30/6/98 - being said to be unavailable[36]) leading up to August 2000, she earnt a little over $23,500 gross, and $22,179 in the year after suffering the injury, including when on light duties. As she has not been employed since the factory closed, I take as a figure to fairly represent what she was likely to earn had she not suffered her back injury, the figure of $24,000 gross per annum (or $462 per week). Her actual earnings from personal exertion since being retrenched have been nil. She has not looked for any alternative employment because she is of the view that she could not do any.
[35] Document dated 25 November 2008 – handed to court during hearing.
[36] Therefore the 3 preceding years as mandated by the section could not be used.
62 In considering whether Mrs Ruleska has lost at least 40% of her without injury earning capacity, I must consider whether she has been capable of earning at least $14,400 gross annually or an average $277 per week.
63 Mr Jones’s view is that she is still capable of sewing machinist work, possibly with some restriction on bending and lifting. He thought that with the exception of house-cleaning (an interesting exception as her domestic restrictions are part of her case), he would not see her as incapable of all of the other suggested jobs put to him.
64 Mr Brazenor believed her capable of working as a sewing machinist provided garments were light weight, and she did not have to lean to the side, or bend to retrieve material from below her waist level. He excluded her ability to be a home cleaner.
65 Dr Brown proffered advertisements for various jobs he thought the plaintiff could do – including house cleaning for which no other doctor considers her capable.
66 Mr Simm considered she is unable to sustain static postures and cannot undertake physically demanding activities, and is now confined to light occupations. He noted that with her lack of command of English and not other past work experience her disability from the lumbar injury has effectively rendered her totally incapacitated for employment.
67 Dr Lifson notes that he has continued to provide certificates stating that she is fit for modified duties although she has not worked for some time and he feels will not for the foreseeable future.
68 Mr Barratt’s view is that her lumbar injury totally disables her from her previous duties or any other employment. In this aspect of his opinion, however, I did not accept his conclusion, largely because it is too far from most other doctrs’ opinions as well as from the view I have reached of the ongoing limits of her physical condition.
69 Mr Frank Fleming of Flexi Personnel provided a recent report as to Mrs Ruleska’s ability to engage in “suitable employment” for the purposes of a “serious injury” application[37]. On the basis that he understood medical reports to conclude that she could not do sustained standing, walking, bending, squatting, lifting or carrying for any commercially useful time, he concluded that only non-manual work would be suitable for her.
[37] Exhibit G
70 Mr Fleming also took into account that due to the past injuries to her hands and wrist she was further limited in employment options. He administered a basic test of her English skills and found that she failed simple English tests for reading and writing, and had little command of English orally, and this meant that she was not suitable for retraining in clerical work. She has no computer skills and her whole work experience was in the textile industry – 11 years in Macedonia and almost 6 years in Australia with the Defendant. He also took into account that her age puts her outside the preferred range for employees, and that her place of residence has limited public transport options for her to travel to work, and he accepted that prolonged driving was painful for her back.
71 Mr Fleming did not believe that she could currently return to the workforce at any level due to her injuryed back and to her hands, and that she could not be easily retrained due to her lack of English.
72 The definition of “suitable employment” in section 5 of the Act directs attention to the realities of the labour market, so that an artificially constructed job or one tailored to meet the peculiar needs of an injured worker, to accommodate a return to work, would not constitute “suitable employment” if not generally available in the employment market[38]. However, it is capacity for employment rather than whether she is likely to get a job on the labour market that is to be considered, and the plaintiff has the burden of proving that no job currently exists which she could do and in which she could earn 60% of her pre-injury earnings [39].
[38] Smorgan Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, paragraphs 10-11 per Buchanan JA
[39] State of Victoria v Rattray [2006] VSCA 145 at paragraph 16
73 I find that Mr Ruleska has been incapable since her back injury of working at full pace as a sewing machinist, if required to meet a quota, or at similar factory or production line work if it required sustained sitting or standing or bending, lifting of weights, or twisting.
74 I am satisfied that she could not be a cleaner – cleaning class-rooms being her only other work experience in Australia. I accept that she is not suitable due to her lack of English, to be retrained for office or clerical or computer work.
75 However, I find that Mrs Ruleska has been capable, if a job existed, of working at her own pace as a sewing machinist if allowed to get up and stretch, take breaks, and not lift much. At the time she last worked for the defendant her wrists were a much greater problem for her than her back, although I accept that she suffered persistent back pain that required her to be able to take breaks and move and stretch.
76 If the injury to her back had not occurred, she would have been retrenched when she in fact was because the factory closed in August 2001. She would then have had the same language barriers to retraining or clerical work, and work experience limited to the textile industry (except for a few months cleaning class-rooms). She would have been capable so far as her back was concerned of such work, limited by the condition of her left wrist until after surgery on it in May 2002, and fromthen onwards only very moderately so. Had she not injured her back I suspect that she would still have had difficulty obtaining alternative employment when the defendant’s factory closed, although it would seem that she obtained employment there with minimal English soon after arrival in Australia.
77 Dr Brown’s report produces a variety of job advertisements. I am not satisfied that she is capable of working as a house cleaner, as the movements required within limited time frames would be likely to aggravate her back injury, and are even excluded by Mr Brazenor and Mr Jones. I am not satisfied that she is fit to work at a production line packing small components, as that would not be self-paced, and her wrist conditions would also probably preclude it. I also note that sewing machinist jobs in factories which he produced required machining of industrial fabrics which would offend the weight lifting restrictions placed by the majority of doctors on her present capacity, or required keeping pace in a busy environment, for which I am satisfied she was also unsuitable.
78 There was, however, an advertisement for sewing garments at home, and there would be other such jobs available. While piece work is notorious for paying very low prices per piece, it seems to me that it might well be within Mrs Ruleska’s capacity, as it would enable self-paced work rate, in a context where she has limited other calls on her time at home, with breaks from sitting, and without daily travel. It is however impossible for me to assess what income she might be capable of earning from such work as the material before me simply does not include any payment details.
79 The plaintiff bears the burden of showing that this or similar work, if I find her physically capable of it, would be unlikely to yield her more than approximately $277 gross per week.
80 I am satisfied that the ongoing symptoms of the plaintiff’s back injury do restrict her capacity for employment, but I am not satisfied that she is totally incapacitated from any suitable employment. My impression is that she has not been motivated to attempt to find alternative work, in contrast to how soon she obtained her job with the defendant after arrival in Australia. Although I found Mr Barrett’s views about the cause and ongoing significance of her symptoms convincing, I am not satisfied of his view that she is permanently totally incapable of work, partly from the preponderance of other doctors’ views, and also from my own assessment of the plaintiff’s restrictions in everyday life. She has not satisfied me that the ongoing restrictions from her back injury, currently or in the future, incapacitate her from all remunerative work, or from earning at least 60% of her previous wages.
Conclusion
81 I am satisfied that the plaintiff suffered injury to her lower back in her employment with the first defendant during the months leading up to 22 August 2000, and that the consequences of that injury to her satisfy the definition of “serious injury” as to pain and suffering, but not as to loss of earning capacity. I propose to grant her leave to bring proceedings for damages in respect of that injury, for pain and suffering only.
IN THE COUNTY COURT AT MELBOURNE
BEFORE HER HONOUR JUDGE COHEN
SCHEDULE OF EXHIBITS
RULESKA v. UNION KNITTING MILLS PTY LTD (T/A JOCKEY AUSTRALIA) & ANOR
Number and
| Identifying Mark | Short Description of Exhibit |
on Exhibit
Plaintiff’s Affidavits, sworn 25/10/06 & 21/11/08 (PCB 10-13;
A 13a-13c)
Reports of Mr B. Barrett, dated 27/11/07 & 30/9/08 (PCB 37-B 43) C Report of Dr C. Sher, dated 24/11/03 (PCB 20-1)
Report of Dr H. Lifson, dated 4/5/02, 7/12/03, 9/9/06, 16/2/08 &D 11/10/08 (PCB 22-7) E Report of Mr P. Wilde, dated 3/7/06 (PCB 33-6) F Report of Mr R. Simm, dated 29/10/08 (PCB 44-9)
Report of Mr Frank Fleming, Flexi Personnel, dated 31/10/08G (PCB 61-9)
Radiology Reports:H X-ray of lumbo-sacral spine, dated 16/10/03 (PCB 70)
CT scan of lumbar spine, dated 21/4/04 (PCB 71)
MRI of lumbar spine, dated 13/9/05 (PCB 72)
CT scan of lumbar spine, dated 23/5/07 (PCB 73)J Report of Dr N. Strauss, dated 11/11/08 (DCB 65-9) 1 Report of Mr A. Buzzard, dated 14/8/02 (DCB 1-5) 2 Report of Dr H. Lifson, dated 14/6/03 (DCB 6-7) 3 Report of Mr R. Carey, dated 24/2/04 (DCB 8-10) 4 Medical Panel Certificate of Opinion, dated 22/7/04 (DCB 11) 5 Reports of Mr C. Jones, dated 19/3/07 & 21/5/08 (DCB 17-23) 6 Report of Dr M. Brown, dated 12/5/08 (DCB 28-54) 7 Report of Mr G. Brazenor, dated 27/10/08 (DCB 55-60) 8 Report of A/Prof J. Balla, dated 19/8/08 (DCB 61-4) Short Term Rehabilitation Programme, prepared 6/10/00 (DCB 9 84) 10 Report of Ms Suzana Maksoni, dated 7/3/08 (PCB 50-3) 11 Statement of Don Walsh, dated 7/8/02 (DCB 85-6)
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