Rupcic v Sventak Pty Ltd (trading as: Waldreas Village)
[2013] VCC 530
•14 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-03680
| SLAVICA RUPCIC | Plaintiff |
| v | |
| SVENTAK PTY LTD (Trading as: WALDREAS VILLAGE) | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 April 2013 | |
DATE OF JUDGMENT: | 14 May 2013 | |
CASE MAY BE CITED AS: | Rupcic v Sventak Pty Ltd (trading as: Waldreas Village) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 530 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Judgment for the plaintiff to commence common law proceedings for “pain and suffering damages” and “pecuniary loss damages”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC Mr M Cvjeticanin | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr T Ryan | Hall & Wilcox |
HIS HONOUR:
1 In this matter, the plaintiff seeks leave to commence a proceeding claiming pain and suffering and pecuniary loss damages by reason of injuries sustained by her in the course of her employment with the defendant by reason of employment-related activity undertaken by the plaintiff during the period between “October 2002 until about 10 July 2007”.
2 In the application, the plaintiff relies upon three affidavits sworn by her dated 11 February 2010, 21 June 2012 and 10 April 2013, together with medical and like reports tendered on her behalf. In opposing the application, the defendant relies upon medical and like material tendered on its behalf.
3 In the course of the proceeding, the plaintiff attended for cross-examination and gave viva voce evidence. Otherwise the parties rely upon their respective tendered material.
4 In the application:
(i) It was conceded on behalf of the defendant that the injury and impairment of function relied upon by the plaintiff in this proceeding, namely an injury to the lumbar spine and an impairment of function of the lumbar spine, constituted a serious injury insofar as the issue of pain and suffering arose.
(ii) No issues arise as to the plaintiff’s reliability or credibility as a witness.
5 I consider each of these concessions to be imminently appropriate, having regard to both the material relied upon by the parties in this application and the plaintiff’s evidence, both in affidavit form and in the course of the proceeding, and her candour and demeanour when giving evidence.
6 In the above circumstances, the issue to be determined by me is whether or not the plaintiff has established that her injury-related impairment gives rise to economic loss consequences which are appropriately defined as being “serious” within the meaning of that term as employed by the Accident Compensation Act 1985 (“the Act”). This, in turn, gives rise to issues for my determination involving:
(i)whether the plaintiff’s presentation is influenced by non-organic aspects such as the need to “disentangle” the influence of such aspects;
(ii)whether by reason of the impairment arising by reason of the organic injury to the plaintiff’s lumbar spine, she has suffered a loss of earning capacity which meets the statutory threshold.
The Plaintiff’s affidavit evidence
7 The plaintiff was born in Bosnia in March 1976, where she completed the equivalent of Year 10. She commenced employment with the defendant as a personal care attendant early in 2001, but after four months gave up work so that she could care for her children. She recommenced employment with the defendant in October 2002 as a personal care assistant and worked part time undertaking 10 hour night shifts, five days per fortnight.
8 In her first affidavit, the plaintiff deposed that:
(i) She had continuing pain in the right side of her lower back which was present all the time in that she could always feel it but was subject to exacerbations;
(ii) Her symptoms involved pain in her right leg which was not present all the time but came and went if her back pain flared up;
(iii) Her medication involved the use of Norspan patches weekly, Panadol Osteo which she took every morning, Tramadol and Cipramil;
(iv) She was able to drive her children to school and that she could tolerate driving for half an hour to 40 minutes; that she could walk for 30 to 40 minutes;
(v) She undertook her housework with the assistance of her daughters;
(vi) Working as a personal care attendant was the only real job she had ever had and that she was unfit to go back to that type of work. She said that she would be unable to do work which involved long periods of sitting, standing or walking and that whilst she had good spoken English and could read English well, she was not good at writing English.
9 In her second affidavit, the plaintiff:
(i) Made similar complaints of the level of pain from which she suffered;
(ii) Took issue with the description by Mr Simm of the complaints of pain which he said the plaintiff reported to him;
(iii) Said that she continued to employ Norspan patches and Panadol Osteo to control her symptoms and that while she used to take Tramadol and Cipramil, she now employed Tegretol and Cymbalta in management of her pain;
(iv) Said her ability to tolerate driving and walking was similar to that described in her previous affidavit and that her sleep was regularly interrupted by back pain, such that she often did not get enough sleep and was left feeling tired;
(v) Said that she did not believe she could do office work as she could not sit for long periods and that she considered she would not be a reliable employee because she suffered flare ups with respect to her condition from time to time. She said that she would, “much rather be working and earning money than be stuck at home.”
10 In her further supplementary affidavit, the plaintiff said that she currently managed her condition making use of Norspan patches, 20 milligrams weekly and one or two Panadol Osteo every morning. She said that whilst she was previously taking Tegretol once a day, she now uses it much less often and that she is no longer taking Cymbalta. She described her symptoms of back and leg pain in a manner largely similar to the statements made by her in her previous affidavits.
The viva voce evidence of the plaintiff
11 In the course of her application, the plaintiff gave the following evidence:
·She had received certificates from Dr Achar between March 2008 and October 2008 certifying her as fit for light work;
·At the time of her injury she was working part time, having regard to the commitments to her family;
·That she had suffered from depression but that as at January 2009, her emotional condition had improved;
·Her husband had been unfit for work on and off by reason of an illness related to his diabetes which had been diagnosed in 2000 and that he had periods of unemployment which exposed the family to financial strain in December 2007;
·In 2007 she had applied for various employment positions as directed by the “insurance company” and that her search for employment had included a walk through Dandenong Plaza together with the young girl from the insurance company which involved résumés being delivered to various shops;
·She had complied with the request by “Gallagher Bassett” to apply for five jobs for a period of 12 weeks. She said in that period “I don’t know how many jobs I applied for. I've lost count.”[1]
[1]Exhibit 1 contains a list of the numerous jobs for which the plaintiff has applied
·It was put to the plaintiff that during 2009 she had not kept contact with WorkStreams for the purpose of discussing her progress in their job seeking program, to which the plaintiff responded: “I don’t remember”;
·Other than for treatment which involved prescription medication, she had no psychological treatment and she agreed there was no suggestion that her condition should be managed by surgery;
·She had good spoken English and could read English well;
·She retained the capacity to drive her children to school and to go shopping with her children;
·Her husband was presently back in full time employment;
·She could “sit through the pain. I've learned for the 5 – 6 years … when I'm in pain I learn how to you know move my body a little bit to make myself a bit more comfortable so I can go through it”.
·If she could manage the activities involved she would like to work as a pathology courier; as a product tester, product examiner; as a check out operator or as a mail sorter, in respect of which employment the plaintiff commented: “I would give it a go, yeah. … I will try it, yes”;
·She was assisted with shopping and cooking by her daughters and her daughters also assisted her with household chores;
·She sometimes required help with her shoes and socks and that while she was unable to cut her toe nails, she was otherwise independent with dressing and washing;
·There had been no suggestion that treatment other than the prescription of medication would assist her;
·Her symptoms varied and that she had incidents of severe pain between six and eight days a month, at which time she was confined to bed by her symptoms; that her symptoms were exacerbated by her period and that when her severe symptoms were present she would stay in bed and even let her children skip school because she was unable to drive;
·Her ability to sit and also to communicate would restrict her ability to undertake office work;
·Her job seeking program continued for approximately 126 weeks during which period the plaintiff and her rehabilitation provider were to apply for five jobs per week. When questioned as to the number of jobs she had applied for during this period, the plaintiff said: “I did think roughly five. You know, maybe three, but I do remember that it was close to five.” The plaintiff said that notwithstanding these applications, she had never obtained an interview for a position;
·At the present time she would love to try to return to work but that her ability to sit and work for long periods was restricted because of increased pain which was always with her and varied from 6 out of 10 to 10 out of 10 at its most severe; she said that as the result of having to sit in Court “I’m getting already really painful, really sore. For me it’s a long time to sit here. Tomorrow probably I will not be able to get up from my bed. It depends on my day, what I do …”
The medical evidence
12 In a report dated 12 August 2008, Dr Anu Acha, the plaintiff’s then treating medical practitioner, reported that:
(i)In August 2007, the plaintiff presented to him with back pain which was referred into her leg, that she was unable to undertake her day-to-day duties. “She was worried as she was exhausting all her sick leave and was not improving. She therefore decided to lodge a WorkCover claim.”[2] At that time Dr Acha opined that the plaintiff’s complaints of low back pain radiating into her right leg were suggestive of the presence of a sciatic nerve root involvement with the result that Dr Acha referred the plaintiff for a CT scan which “showed moderate prominent broad posterior and central annular bulge of the intervertebral disc L4-5, which was causing some compression of the adjacent thecal sac and compression of the L5 nerve root.
(ii)As at 31 August 2007, the plaintiff presented with no improvement in her symptoms in spite of physiotherapy and as reporting difficulties undertaking activities of daily living. At that stage, Tramal, which had been previously prescribed for the plaintiff, was discontinued and she was commenced on “Endep and Propranolol”.
(iii)In December 2007, the plaintiff presented with signs of major depression associated with the financial strain imposed upon her by reason of her incapacity and that of her husband (who at that stage was incapacitated by reason of his diabetes).
(iv)As at February 2008, the plaintiff appeared to be less depressed.
(v)As at 14 March 2008, the plaintiff presented with persisting back pain but with a significant improvement in her leg pain.
(vi)As at 29 March 2008, the plaintiff’s symptoms had not changed, she was being treated with medication in the form of Cipramil and Panadeine Forte when required and she was certified fit for modified duties.
[2]The plaintiff’s decision to delay the lodging of a claim until her condition was such that it was threatening to exhaust her sick leave, in my opinion, demonstrates the motivation of the plaintiff to minimise the effect of her injury, even in its early stages, upon her occupation
13 As at August 2008, Dr Acha opined that the plaintiff presented with muscular back pain together with symptoms of sciatic nerve compression post-injury at work and commented: “I think she has a capacity to work but I am not certain she will be able to go back to pre-injury duties due to the persistent nature of her symptoms. The depression is better now which might help her to continue her job seeking assistance and vocational training.”
14 Between May 2008 and October 2008, Dr Acha had certified the plaintiff as being fit for restricted duties, the range of which gradually increased during that period so that as at 19 October 2008, Dr Acha was certifying the plaintiff as being fit for:
“Two days a week for not more than four hours each day, to have a break for five minutes after each hour, not to drive more than 15 minutes to place of training or work, no bending, lifting more than 2 kilograms, pushing, pulling, no repetitive twisting movements of the spine.”
15 In a report dated 31 August 2008, Dr Robert Gassin, a musculoskeletal physician, reported that the plaintiff had presented to him on five occasions between November 2007 and August 2008 and “reported a constantly present stabbing pain on the right side of the low back. The pain radiated down the back of the right leg to the ankle where it had a cramping quality.”
16 On 6 March 2008, Dr Gassin injected the plaintiff’s right nerve root with cortisone. Upon reviewing the plaintiff on 13 May 2008, the plaintiff reported that the injection had relieved her right leg pain but her low back pain remained very severe. At that time Dr Gassin opined that the plaintiff’s symptoms suggested: “that the pain might be originating from the right low lumbar facet joints.”
17 As at 31 March 2008, Dr Gassin opined that the plaintiff was currently unfit for work; that he did not expect her to return to pre-injury duties in the foreseeable future, but that it was possible that the plaintiff would be able to resume less physically demanding work within the next twelve months. He further opined that the plaintiff was likely to require analgesic medication for the foreseeable future.
18 On 21 November 2008, at the referral of Dr Gassin, the plaintiff came under the care of Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. In a report dated 21 November 2008, Dr Thomas opined:
(i)There seemed to be a significant fibromyalgic approach at presentation.
(ii)That the plaintiff would benefit from a work focussed rehabilitation program to assist her functional improvement and ideally return to work.
(iii)The plaintiff should be managed by the prescription of Cymbalta 30 milligrams at night “for a couple of weeks” then 60 milligrams to see if this could assist her.
19 At the time at which she presented to Dr Thomas, the plaintiff was complaining of headaches, neck pain, lower back pain and pain extending into her right leg. Whilst Dr Thomas opined that there was a significant fibromyalgic approach at the time of the plaintiff’s presentation, it is unclear in my opinion, whether in expressing that opinion, Dr Thomas was opining that the plaintiff was presenting with something other than organic symptoms and if so whether that presentation involved the symptoms in her low back or those in her cervical spine.
20 In a report dated 10 April 2013, Dr Thomas commented that:
· The plaintiff’s presentation in November 2008 involved tenderness to palpation “in widespread areas and that the plaintiff’s presentation met the criteria of fibromyalgia;
· When he reviewed the plaintiff on 23 December 2008, the plaintiff reported to Dr Thomas that her headaches and associated pain had improved significantly but that she was still ingesting between eight to ten Panadeine Forte in managing her headaches;
· As at 14 July 2009, the plaintiff had completed a rehabilitation program; opining:
“Her pain complaints were very similar but she did report that she was managing her pain more productively. She was aware of the importance of exercise and she expressed an eagerness to keep going with these. Her medication remains stable with Panadol Osteo, the Norspan now 10 milligrams and Cymbalta 60 milligrams.”
21 Dr Thomas did not see the plaintiff after 14 July 2009. He commented that at that time diagnostically the plaintiff presented with two problems namely:
(i)a widespread pain syndrome which he considered to be fibromyalgic in nature; and
(ii)back pain and specific right leg pain –
“… and given the CT scan showing a slightly worse bulge at L4-5 on the right hand side, I thought there was probably some irritation to the nerve root on the right accounting for her back pain and her sciatic.”
22 Having regard to these comments by Dr Thomas, I am satisfied that his opinion at 2009 was that the plaintiff’s low back pain was primarily organic in origin and that the presence of fibromyalgia was largely a reference to the plaintiff’s symptoms in her neck and shoulders. Equally, when employing the description, fibromyalgia, it is unclear to me as to whether Dr Thomas was employing that word to describe an organic or non-organic process.
23 As at 2009, Dr Thomas opined that the plaintiff remained unfit for unrestricted work and said that, whilst he had no recollection of the plaintiff and was relying totally upon his notes, he would place:
“… a 5 kilogram limit on her between waist and chest height frequently, an occasional 7.5 kg lift. (sic) I would avoid lifting, bending and twisting below waist height or above chest height. An occasional 5 kilogram lift would be reasonable.
As for hours at work that she could reasonably sustain work is concerned, I am not able to be specific on this in the absence of having a better feel for her current condition.
Given her overall presentation and the complication of her morbid obesity, I think that she will require long term restrictions.[3]
Prognostically it is likely she will have ongoing pain problems. Future medical treatment is likely to be supportive and palliative. She does not present in such a manner that surgical intervention would help her.”
[3]I interpret this comment by Dr Thomas to be addressing the hours during which the plaintiff is fit to work.
24 In a medico-legal report dated 2 February 2011, Associate Professor Warren Boling, a neurosurgeon and spinal surgeon, opined that the plaintiff’s presentation was consistent with L5 or S1 radiculopathy and that:
·“Her imaging shows quite severe foraminal narrowing at L5-S1 level. This would cause compression of the L5 nerve root and is the likely aetiology for her radiculopathy. Imaging demonstrates multilevel disc disease, most severe at L5-S1 level and this is consistent with discogenic pain and disease of the spine.”
·The plaintiff’s symptoms were chronic in nature, that she had “tried and failed the reasonable treatment approaches that are in the injection approaches performed by Dr Gassin. I do not foresee any additional treatment approaches that would have a good opportunity for success for her pain syndrome.”
·Having regard to the plaintiff’s relatively low level of education and absence of additional skills or training outside her pre-injury employment, “she would be unlikely to find gainful employment into the foreseeable future”.
25 In a report dated 14 February 2011, Mr Justin Hunt, an orthopaedic surgeon, commented that the plaintiff presented with:
(i) Pain in the lumbosacral junction on the right in particular; and
(ii) Associated leg symptoms with radiation through her right buttock and down her right leg into her heel.
26 Mr Hunt opined that the plaintiff’s diagnosis was of “symptomatic spondylosis with mechanical lower back pain and right leg radicular pain, numbness and tingling”, commenting that the plaintiff’s “clinical presentation matches imaging findings” and commented:
“It is likely that her pain symptoms will continue into the foreseeable future, therefore I do not think she will have the capacity to work and it is likely that any work she performs will aggravate her symptoms be it physical or sedentary in nature.”
27 In a further report dated 19 March 2012, Mr Hunt opined:
“I do not believe that Mrs Rupcic has capacity for future work due to the ongoing disabling nature of her lower back pain syndromes. The nature of the pain symptoms she has limits her ability to sit, walk or stand for significant periods, making it difficult for her to perform any type of work.
I believe that her incapacity for work is permanent as she has had ongoing symptoms for some time and continues to be debilitated by the symptoms. I would suggest that her work capacity is not likely to improve significantly in the future.”
28 On 6 April 2011, the plaintiff was assessed by Dr Nigel Strauss, a psychiatrist, at which time Dr Strauss opined: “This woman’s pain appears to be organically based and I do not believe she has a pain disorder from a psychiatric perspective.”
29 The plaintiff’s current treating general practitioner, Dr Gary Silver, in a report dated July 2008 commented:
(i)The plaintiff was only able to sleep one to one-and-a-half hours per night and therefore needs sleep during the day.
(ii)The plaintiff suffered from back pain which required her to be in bed for most of the day, seven days per month, and that she suffered from pain for one or two weeks per month, such that is only able to get up for about two hours. He commented that her function was such that on good days the plaintiff could cook a whole meal but was not able to perform any vacuuming or mopping but that on bad days she was unable to do any work and that this occurred two to three weeks per month and opined:
“In respect of future employment, Slavica is unable to perform any work currently, nor can I foresee her being able to perform any work in the long term future.”
30 Mr John O’Brien, an orthopaedic surgeon, in a report dated 20 February 2013 opined as to the plaintiff’s presentation:
“The clinical signs and radiology in my opinion clearly demonstrate specific pathology underlying the current pain generation. I would therefore conclude that this patient now demonstrates chronic non-specific back and right leg pain. … .
The clinical conditions are clearly stable. … .
I do not consider there are indicators for further physical treatment.
…
I would regard this patient as not physically capable of undertaking any form of employment which requires heavy physical activity. Indeed the chronic nature of the patient’s pain, resulting in physical restriction, would suggest that she would not be capable of undertaking suitable employment on an unlimited hour basis.
I would indeed conclude that this patient is totally and permanently incapacitated and I do not believe there is any likelihood of her returning to gainful employment. I would consider this patient is now quite restricted in her general, social, domestic and recreational activities and this will be a permanent situation.”
31 I am of the opinion that:
(i)the recovery by the plaintiff from her depression as reported by Dr Acha in his report dated 12 August 2008;
(ii)the diminution in the plaintiff’s right leg pain in association with the nerve root injection administered by Dr Gassin in March 2008;
(iii)the absence of any suggestion by the doctors to whom I have referred above as to the plaintiff presenting with low back symptoms which were out of keeping with the injury and pathology with which she presented;
provide a reliable basis for finding that the plaintiff’s presentation is primarily sponsored by organic factors.
32 At this juncture, having referred only to the medical evidence relied upon by the plaintiff, a compelling case is presented for the plaintiff presenting with an organic condition in her lumbar spine emanating at the L5-S1 level with referred symptoms into her right leg, that case being supported not only by the medical opinions to which I have referred but also by reason of the consistent presentation of the plaintiff in combination with her history in which she has readily volunteered variations in her level of pain and functioning, improvement in her levels of depression and headaches and a good response to the L5 nerve injection undertaken by Dr Gassin.
33 Further, in my opinion, the reasoning process adopted by the witnesses to whom I have referred in expressing their opinions is consistent and persuasive.
34 In contrast to this body of evidence, I am of the opinion that the three medical practitioners upon whose evidence the defendant relies in this application when asserting that the plaintiff has a capacity to earn income which exceeds the statutory threshold as to earnings established by the Act; have expressed opinions as to the extent of the plaintiff’s capacity on the basis of a reasoning process which is on occasions difficult to follow and is generally unpersuasive when compared with the expert evidence adduced by the plaintiff for the following reasons;
(i)Reports of Dr Peter Stevenson
35 In a report dated 25 May 2011, Dr Stevenson makes a statement with extraordinary breadth opining that “prolonged heavy labouring appeared protective against disc degeneration”; interpreted the statement by Dr Thomas that the plaintiff presented with fibromyalgia as being a statement pertaining to the plaintiff’s lumbar spine and as being a statement supporting the presence of a syndrome which was producing pathologically inexplicable pain.
36 Further, the statement by Dr Stevenson in his report dated 24 November 2011 to the effect that the plaintiff was fit to undertake the duties required of:
· a check-out operator;
· or a sales assistant
which was expressed:
(i) without Dr Stevenson ever undertaking an examination of the plaintiff;
(ii) upon the basis that “the jobs proposed are all light physical or sedentary jobs well within her physical compass”; in circumstances in which it is clear that the physical requirements for each of these jobs involves prolonged standing;
suggests the presence of a tardiness of approach and analysis which makes the opinions expressed by Dr Stevenson totally unpersuasive.
(ii) The reports of Mr Rodney Simm
37 In a report dated 20 July 2010, Mr Rodney Simm, whilst describing the plaintiff as presenting in a cooperative manner, opined that the plaintiff presented with features of a chronic pain syndrome which did not exclude the possibility that “there may be some residual contribution to her symptom complex from the underlying lumbar disc degeneration”. Whilst he expressed the view that the latter condition probably gave rise to an impairment and loss of function of the back which was likely to persist for the foreseeable future, he commented that it was “debatable as to whether this could be regarded as a compensable injury.”
38 It is clear that Mr Simm regarded the plaintiff’s major presentation as being one involving a chronic pain syndrome.
39 Upon further examining the plaintiff in January 2012 Mr Simm expressed a similar opinion as to the plaintiff’s presentation to that in his earlier report. On this occasion Mr Simm, in expressing the opinion that non organic factors were probably contributing to the plaintiff’s clinical course was clearly influenced by his finding that the plaintiff presented on this occasion with left lateral hip symptoms in contrast to her presentation with right sacro-iliac symptoms at the time of her previous examination.
40 That the plaintiff presented consistently with right sacro-iliac symptoms when examined by:
(i) Mr Boling in February 2011,
(ii) Mr Hunt in March 2012,
(iii) Mr O’Brien in February 2013;
raises questions in my mind as to whether the plaintiff’s presentation to Mr Simm with left sided symptoms in January 2012 (which presentation was relied upon by Mr Simm to support his opinion that there were non organic influences in the plaintiff’s condition) gives rise to a reliable ground for the formulation by Mr Simm of that opinion. Further, given that Mr Simm’s opinion in this regard is inconsistent with a large body of persuasive medical opinion to which I have previously referred as to the organic nature of the plaintiff’s presentation, I do not find the opinion expressed by MrSimm that the plaintiff’s condition is significantly influenced by the presence of a chronic pain syndrome to be persuasive.
41 When opining as to the work which the plaintiff was fit to perform by reason of her condition, Mr Simm commented in August 2010:
“Assessment of her work capacity as described above has been based on my assessment of the physical component of her injury and does not take into account the problems of chronic pain in association with emotional disturbance. These aspects of her condition may prove insurmountable barriers.”
42 In January 2012 Mr Simm opined as to the plaintiff’s capacity for employment in the foreseeable future:
“She is incapacitated for pre injury employment or alternatively physically demanding employment”
and identified suitable employment for the plaintiff as involving the work duties of an inspector/packer or mail sorter.
43 I assume in expressing his most recent opinion that Mr Simm was applying the same reasoning process to that which he had adopted in his earlier report (namely discounting the plaintiff’s presentation so as to exclude the component of what he considered to be non organic factors and assessing the plaintiff’s working capacity on the basis of the increase in the plaintiff’s functional ability when those factors were isolated). Given my satisfaction that the plaintiff presents largely with an organic condition, it follows that the opinion expressed by Mr Simm as to the type and range of work for which the plaintiff is currently fit, it is not persuasive having regard to the methodology he employed in expressing that opinion.
(iii) The reports of Dr Malcolm Brown
44 Dr Malcolm Brown, an occupational physician, in a report of 11 May 2010, opined that the plaintiff presented with symptoms of back pain, “but the psychological factors are affecting the physical presentation.” Mr Brown diagnosed the plaintiff as presenting with lower back pain “with some possible nerve root involvement” and commented that whilst the plaintiff’s prognosis depended significantly on her progress psychiatrically:
“With regard to her physical condition there is frequent gradual improvement over time but if there osteophyte pressure on the nerve root as suggested by the CT scan, she may well continue to have significant symptoms in the future.”
45 In a further report dated August 2010, Mr Brown commented that the plaintiff had a capacity to undertake work which was predominantly sedentary. He expressed a similar position in his report of 14 November 2011.
Findings as to the Plaintiff’s capacity for work
46 I have made findings as to the non-persuasive nature of the opinions expressed by Dr Stevenson and Mr Simm as to the plaintiff’s capacity for employment which I reject.
47 Having regard to the fact that it is not in my opinion appropriate to describe any of the occupations of product tester, product examiner, product assembler, checkout operator, sales assistant or car park attendant, as involving predominantly sedentary occupations[4]; I do not consider Dr Brown’s opinion to support the proposition that the plaintiff is fit for any of the occupations identified by the WorkStreams organisation as being suitable for the plaintiff, other than that of mail clerk sorter about which there is agreement that the work involved is largely sedentary.
[4]See the detailed analysis of the tasks involved in these activities undertaken by Ms Leitch in her reports which I accept in preference to what appears to be a shallow and selective analysis adopted by Ms Stapelton, whose qualifications for expressing the opinions which she has are not apparent to me.
48 Ms Margaret Leitch, occupational therapist, in a report dated 31 March 2011, assessed the plaintiff as speaking English well but commented that she spoke with a strong accent which would –
“… most likely to be difficult to understand should she attempt the communication of more complex information by telephone.”[5]
[5]I accept this assessment by Ms Leitch as it largely accords with my assessment of the plaintiff’s spoken English in the course of the trial.
49 Ms Leitch tested the plaintiff’s formal reading levels and found her to be reading English at a level of an 11.6 year old.
50 Taking into account both the plaintiff’s reading and writing skills, Ms Leitch opined that the plaintiff’s literacy skills were adequate for occupations requiring basic skill levels only and commented:
“She is therefore restricted when considering occupations where higher level literacy is a prerequisite for competency.”
51 It was the opinion of Ms Leitch that the plaintiff’s literacy skills were not such that they would allow her to work as a mail sorter and that it was unlikely that the provision of retraining in the future would lead to the plaintiff being fit to undertake such work.
52 Ms Leitch is a qualified occupational therapist who holds a graduate diploma in rehabilitation studies (rehabilitation/vocational counselling). In assessing the work requirements of mail clerks/sorters, she has employed the description set out in the Australian New Zealand Standard Classification of Occupations. I am satisfied that Ms Leitch is well positioned to express an opinion as to the plaintiff’s capacity to undertake the duties required of a mail sorter and I accept her opinion that the plaintiff does not possess such a capacity.
53 The medical evidence relied upon by the plaintiff presents a compelling position that the plaintiff has lost any capacity to undertake full time unrestricted work and that at the highest she retains some capacity for part time work of the type and hours fixed by Dr Achar namely
Two days a week for not more than four hours each day, to have a break for five minutes after each hour, not to drive more than 15 minutes to place of training or work, no bending, lifting more than 2 kilograms, pushing, pulling, no repetitive twisting movements of the spine.”
54 Although this opinion was expressed by Dr Achar in 2008 it is largely consistent with the opinion expressed by Dr Thomas (save for the fact that Dr Thomas fixed an occasional lifting weight limit of 5 kilograms for the plaintiff and was reluctant to opine specifically as to the hours which the plaintiff was fit to work although he opined that long term restrictions would be required). Given the consistency in the plaintiff’s presentation over the years however, I am satisfied that if the plaintiff has any residual capacity for work at all, the work restrictions fixed by Dr Achar appropriately describe the highpoint of the plaintiff’s stabilised working capacity .
55 The plaintiff’s applications for work and her evidence that she would attempt suitable work if it was available to her, suggests that the plaintiff recognises the prospect that she may retain some capacity for suitable employment. For the reasons set out above I am satisfied that the medical evidence of Dr Achar establishes the high point of any retained capacity for employment held by the plaintiff, namely part time restricted duties involving hours limited to those fixed by Dr Achar. In the context of this finding I am satisfied, taking into account the limited hours which the plaintiff is fit to work and the range of wage rates set out in the various WorkStreams Reports, that the plaintiff has established that by reason of the injury suffered by her to her lumbar spine, she has suffered a loss of earning capacity which meets the statutory threshold fixed by the Act.[6]
[6]It was not contended on behalf of the defendant that, in the context of a finding that the restrictions as to the hours which the plaintiff was fit to work as fixed by Dr Achar were still applicable, the plaintiff did not meet the relevant statutory threshold.
56 Accordingly, I am satisfied –
· That the plaintiff has established that by reason of the impairment of the function of her lumbar spine she has sustained a loss of earning capacity, the consequences of which are, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable”;
· That the plaintiff is entitled to the orders sought in this application; namely, leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by her the subject of this application.[7]
[7]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009).
57 Subject to hearing from the parties as to the precise form of the orders which should be made in this matter, I propose to make an order granting the plaintiff leave to bring a proceeding claiming damages for:
(i) The pain and suffering consequences
(ii) The pecuniary loss consequences
arising by reason of the injuries sustained by the plaintiff in the course of her employment with the defendant during the period between October 2002 and approximately 10 July 2007.
58 I will hear the parties as to the orders which should be made as to costs.
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