Ryan v Denward Court Pty Ltd and WorkSafe Victoria
[2010] VCC 878
•30 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-03249
| HEATHER RYAN | Plaintiff |
| v | |
| DENWARD COURT PTY LTD | First Defendant |
| (Trading as: THE BINDERY) | |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 June 2010 |
| DATE OF JUDGMENT: | 30 June 2010 |
| CASE MAY BE CITED AS: | Ryan v Denward Court Pty Ltd & WorkSafe Victoria |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0878 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – injury to lower spine in course of employment – s.134AB(19)(b) – s.134AB(38)(f) – s.134AB(38)(g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh SC with | Nowicki Carbone & Co. |
| Mr S D Dawson | ||
| For the Defendants | Mr D R Myers | Thomson Playford Cutlers |
| HIS HONOUR: |
Preliminary
1 The plaintiff claims to have suffered an aggravation to a pre-existing degenerative condition in the lower spine in the course of her employment with the first defendant on or about 30 March 2007. Aside from a brief return to work over several days, she has not worked in that employment, nor any other employment, since.
2 The plaintiff claims that the injury has caused a significant restriction on a range of social, domestic and recreational activities.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of employment with the first defendant on or about 30 March 2007.
4 Mr Keogh, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine. The application is thus brought under sub- section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.
6 I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of a body function.
7 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38(f) of the Act, that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her “without injury earnings” in the three-year period before and after injury as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
Relevant Background
8 The plaintiff is now fifty-nine years of age, is married with two adult children. She was educated to Year 8 and has spent all of her working life in the printing industry as a book binder, working for a number of employers. In November 1999, she commenced work with the first defendant. Her employment was arduous and required significant bending and lifting. From time to time the machines upon which she worked would jam and part of her duties was to clear these machines. In March 2007, she was earning approximately $700 gross per week.
9 Before injury, the plaintiff claims she was able to perform all household tasks, without restriction. She enjoyed gardening, including the heavier aspects such as digging holes, planting and weeding.
10 According to her affidavit,[1] in the course of her work over several years before March 2007, she suffered some pain into her mid and upper back. To Associate Professor Balla, whom she saw in October 2009, she described five to ten years of low-back pain and as a result saw a chiropractor or osteopath two or three times a year when there were flare-ups. The plaintiff provided a similar history of earlier low-back problems to various doctors.[2] According to the clinical notes of the Hastings Chiropractic Centre, the plaintiff attended on a number of occasions in 2004 and 2005 complaining of lower back problems. According to the clinical notes of Mr Stephen McNab of August 2006,[3] the plaintiff suffered a fall in or about June 2006, landing upon the base of her spine, and a diagnosis of lumbar spine disc degeneration was made. An x-ray of the lumbar spine was taken at the time which, aside from showing slight narrowing at L3-4, indicated no other abnormality.[4]
[1] Plaintiff’s Court Book (“PCB”) 12
[2] Dr Clayton Thomas – PCB 77; Mr Peter Dohrmann – PCB 83
[3] Defendants’ Court Book (“DCB”) 85-86
[4] DCB 33
11 According to the clinical notes of Mornington Osteopathy, the plaintiff received treatment on a number of occasions from February 2007 until the date of the subject incident, 30 March 2007.[5] At the time of attending this osteopathy clinic on 26 February 2007, the plaintiff complained of constant low-back pain with a past history of an episode two years before. She further attended the clinic on 28 February, 14 March and 28 March 2007, on each occasion complaining of lower back pain.
[5] PCB 100-101
12 In cross-examination, the plaintiff confirmed that in June 2005, she went to the Balnarring Medical Centre with a complaint of lower back pain with left-sided sciatica for which an anti-inflammatory, Voltaren, was prescribed. She accepted this occurred and accepted further, that at one point prior to the subject injury she wore a back brace for support.
13 Further, in re-examination, the plaintiff, while acknowledging the various instances of low-back pain, and treatment by various practitioners, stated that with several treatments the pain improved. She said that while she may have had one or two days off work in respect of each episode, she was otherwise able to work on her normal, arduous work duties without major problems.
14 Aside from an abnormal heart rhythm, panic attacks and hi-level cholesterol, the plaintiff was otherwise well before 30 March 2007.
The Injury and its Consequences
15 As stated, the plaintiff’s bookbinding work required her to work on various machines used in the binding of books and their collation. On 30 March 2007, she was working on an older machine which jammed from time to time, and she was required to physically open and raise heavy guards above her shoulder. The machine jammed regularly on this day. In the course of so doing, she stated[6] that her lower back became sore immediately after work. When she awoke the next morning, she was in severe pain.
[6] PCB 13
16 On 31 March 2007, she went to see Dr Brad Waddell, osteopath, giving a clear history of the onset of pain. She described pain to the lower back with shooting pain into the left buttock. He noted a previous attendance in February 2007 with low-back pain after raking leaves. He provided massage and adjustment treatment and suggested ice packs. He has continued to treat the plaintiff to the present time for acute exacerbations.
17 In May 2007, the plaintiff went to see Dr Sue Murphy of Balnarring Medical Centre, general practitioner, who, according to various statements and questionnaires,[7] treated the plaintiff on 3 May 2007 until August 2007. She prescribed Voltaren and noted slow improvement with less back pain and more mobility.[8] Dr Murphy referred the plaintiff for a CT scan taken on 4 May 2007[9] which showed disc degeneration at L3-L4, included a broad-based disc bulge with a disc herniation at L4-5. This investigation indicated compromise of nerve roots possibly at L4 and L5.
[7] PCB 53-59
[8] PCB 54
[9] PCB 42
18 The plaintiff has remained under the treatment of doctors at the Balnarring Medical Centre, including Dr Paul Muirden and attends approximately monthly for a range of complaints, including back pain. Dr Muirden referred the plaintiff for a further CT scan on 27 November 2009[10] which indicated disc protrusions at L4-5 and L5-S1 with thecal sac impingement.
[10] PCB 43
19 The plaintiff had remained off work from the date of the injury until October 2007. At that time, and with the support of doctors, she returned to work for a period of two days. She stated in evidence that she was able to undertake the lighter duties which were allotted to her, but was required to drive for a period of one hour to work, and a similar time to home. She stated that she found the pain in her back caused by the driving intolerable, and thus stopped work. She has not obtained any other work, nor sought work in any field from that time to the present. She stated that as all of her experience had been in the bookbinding area, she did not believe she was qualified or suited for any other form of employment, having regard to the restrictions which her back injury placed upon her.
20 She has not undergone any form of retraining nor rehabilitation. She stated that it had been her intention, prior to injury, to remain at work until the age of sixty-five.[11]
[11] PCB 14
21 At the present time, the plaintiff complains of chronic low-back pain, exacerbated if she undertakes heavier tasks, with some referred pain into the left buttock. She acknowledges she has never had pain into the legs. She is unable to perform the heavier household tasks, and has difficulty with cleaning, mopping and vacuuming.[12] While she still enjoys some gardening, again, the heavier tasks are beyond her. She claims she and her husband have had to sell their one-and-a-half-acre property at Bittern on the Mornington Peninsula as their plans to create a hobby farm were made impossible because of her injury. They have moved to a smaller property in Hastings.
[12] PCB 15
22 She has difficulties driving long distances and is required to stop her journey to walk around and stretch. She has to avoid constant standing and lifting.
23 She does not, at the present time take regular medication and her only regular treatment is to her general practitioner for the prescription of medication and osteopathy once a month or so. Apart from a recent referral to Mr de la Harpe, orthopaedic surgeon, in October 2009, she has not been referred to any specialists. Mr de la Harpe did not consider surgery was warranted, and suggested the plaintiff continue her osteopathic treatment and not return to manual labour.
Medical Opinions
24 There is little difference in the various medical opinions that the plaintiff suffered an aggravation of pre-existing degenerative change, particularly at L3-4 and L4-5. There is no evidence of radiculopathy, and while I accept the plaintiff has complained of some referral of pain into the left buttock, this is not consistent with any nerve root compression.
25 According to her treating general practitioner, Dr Paul Muirden,[13] the plaintiff could not return to her previous duties, and while she may be able to return to other work with significant retraining, she would not be able to undertake work which involved significant bending, lifting or twisting, or which required her to drive any distance to work. He noted that the only experience the plaintiff had was in the bookbinding industry.
[13] PCB 45A-B
26 Dr Brad Waddell, osteopath, considered the plaintiff had suffered a chronic musculo-ligamentous strain with multi-level disc damage and degenerative changes in the lumbo-sacral region. He, with other practitioners, accepted the plaintiff had suffered an injury at work on 30 March 2007 as a result of her employment duties. He considered that she had a very limited capacity for work[14] and that the pain and discomfort affected her recreational activities and social interaction. He thought that any employment would be difficult given the plaintiff’s age, limited education and job skills. He thought the effect upon her social, domestic and recreational activities would be permanent.
[14] PCB 51
27 Mr de la Harpe[15] noted the plaintiff took Panadeine Forte and Voltaren on an ‘as needs’ basis. He noted the CT scans showed no neurological compromise and felt that in the course of her employment duties on 30 March 2007, she suffered an aggravation of pre-existing degenerative change in the lumbar spine. He thought that she would require ongoing conservative management and that her condition was stable. He said she would be unable to return to her previous occupation or for any other job involving manual labour. He stated:
“There may be a possibility in the future of a return to sedentary duties
with significant limitations.”
[15] PCB 46-47
28 He considered that her injury restricted social, domestic and recreational activities, and that her lifestyle would be limited with pain.
29 According to the statements and questionnaires completed by the earlier treating general practitioner, Dr Murphy, the plaintiff had improved somewhat over the period from 2007 to 2008.[16] According to Dr Waddell’s’ clinical notes,[17] he also noted a significant improvement in symptoms.
[16] PCB 54-58
[17] PCB 63
30 Of significance, is the complaint of symptoms provided by the plaintiff to Mornington Osteopathy on a number of occasions in 2007 and 2008.[18] Aside from one questionnaire of June 2007, the remaining reports of 2008 generally speak of mild pain which did not restrict the plaintiff significantly in personal care, walking, sitting, standing, sleeping and social life.
[18] PCB 118-121
31 The plaintiff was examined by a number of consultant practitioners. Associate Professor John Balla, consultant neurologist, saw the plaintiff in October 2009.[19] He obtained a history of pain described as being six out of ten. Like other practitioners, he considered that the plaintiff had suffered an aggravation of pre-existing degenerative disease in the course of her workplace duties in March 2007. He considered the plaintiff could be employed in light duties where she did not have to repeatedly bend and lift weights beyond 5 kilograms. He thought that the injury would moderately impair her activities. He considered episodic osteopathic treatment as appropriate without the prospect of significant change into the future.
[19] PCB 69-73
32 Dr Clayton Thomas, rehabilitation and pain specialist, saw the plaintiff in December 2009. Shortly before his consultation with her, she had been bucketing water out of a bath which had aggravated her back pain. He considered the events of 30 March 2007 responsible for the plaintiff’s current condition. He thought she had a limited capacity for employment. She would not be able to perform any manual labour, including work as a bookbinder, but was able to work so long as she was not required to lift beyond 5 kilograms, nor do any work above chest height. Employment would require her not to stand for prolonged periods and the ability to sit and stand at will would be ideal. He said she would not be able to work beyond 20 hours per week. If purely sedentary office work could be found, the plaintiff would have to alter her posture frequently, with no lifting, and would be limited to 18 hours per week.
33 The plaintiff was examined by Mr Peter Dohrmann, neurosurgeon, in December 2009. He obtained a history of ongoing low-back pain and in particular, stiffness in the mornings. The plaintiff said her walking was unrestricted but she could not stand for more than 20 minutes. The plaintiff said she could carry out an ordinary range of simple indoor domestic tasks such as cooking, cleaning and laundry, but avoided vacuuming and mopping. She was still able to tend to her garden and could drive a motor vehicle, although not for long distances. He considered the plaintiff suffered chronic low-back pain due to an aggravation of pre-existing lumbar degenerative disease. He thought the pain was arising principally from the L4-5 facet joint degenerative change in association with canal stenosis and L4-5 disc protrusion without evidence of radiculopathy. He found the plaintiff a “straightforward individual who did not embellish the history and in whom there was no evidence of functional overlay … “. He accepted that the lower back condition precluded the plaintiff from engaging in a full range of social, domestic, recreational and employment activities although the degree of preclusion was relatively mild. He noted that she had no plans to return to the workforce and that she did not have the capacity to return to her pre-injury employment. He said:
“She has no other significant work experience, training or qualifications
that would enable her to easily undertake different work.”
34 The plaintiff was examined by Mr John O’Brien, orthopaedic specialist, in February 2010. He obtained a history of occasional episodes of mild low-back pain before March 2010 which became severe and incapacitating after that date. He considered her prognosis poor. He said that the plaintiff described moderate disability associated with chronic lumbar pathology. He said she would be “quite incapable” of returning to bookbinding and given her physical incapacity:
“… I do not therefore consider that the patient would be capable of returning to the workforce. Taking into consideration the patient’s chronic lumbar pathology and her employment background, I would regard this patient as totally and permanently incapacitated and I would be confident that she will not return to any form of gainful employment.”
35 On behalf of the defendants, the plaintiff was examined by Professor Vernon Marshall, surgeon, in June 2007.[20] Although he described her low-back pain coming on “over a period of time”,[21] I am satisfied that the increase in the plaintiff’s pain did occur on 30 March 2007. He described her pain prior to March 2007 as “intermittent low-back pain previously without loss of time”. He thought the plaintiff fit for modified duties with restriction of weight lifting to 5 kilograms or less and avoidance of frequent bending and stooping. He suggested treatment by active exercise and a muscle strengthening program, together with weight loss.
[20] DCB 17-21
[21] DCB 18
36 The plaintiff was examined by Dr Roy Karna, rheumatologist, in October 2008. He noted the plaintiff had a degree of lumbar degenerative disease prior to March 2007 which had become aggravated because of her work duties on that day. He thought the condition had not resolved and that she was incapable of return to her pre-injury duties. He said:
“She is incapable of pre-injury duties and I believe that situation is indefinite. She does have a current work capacity and could do self- paced bench level work not involving heavy lifting or repetitive twisting and that arguably would involve some quality control work. A vocational rehabilitation unit should be utilised. There were no undue functional features in her presentation.”[22]
[22] DCB 25
37 Finally, the plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, in April 2010.[23] Again, he accepted the plaintiff had aggravated pre-existing degenerative disease in the lumbar spine. In relation to work capacity, he said:
“Considering employment required of a bindery hand, I feel this lady does not and will not regain the capacity to work in this position. Lighter work could be a possibility, but considering the fact that she has only worked in binderies for her working lifetime, it is clear she will not return to work of this nature. … Theoretically she would be able to work in a sedentary situation such as clerical employment or something similar. … Considering this lady’s age and occupation, I would be surprised to see her return to work.”[24]
[23] DCB 28-32
[24] DCB 31-32
Submissions on behalf of the Defendants
38 Mr Myers pointed out that there was a firm body of medical opinion that the plaintiff had a capacity for light work, although would not be able to return to work as a printing binder. He said that aside from a return to work over two days in October 2007, not only had the plaintiff not returned to any form of employment, but she had made no attempt either to find lighter employment. He referred to s.134AB(19)(b) of the Act, which states:
“(19) For the purposes of subsection (16)(b)— (a) ...
(b) for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability; . . . .”
39 Further, Mr Myers referred to s.134AB(38)(g) of the Act, which provides:
“(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred; . . . .”
40 Mr Myers submitted that both these subsections had application, the first placing a considerable onus upon the plaintiff, and the second requiring the Court to take into account, when assessing loss of earning capacity under s.134AB(38)(f) of the Act, that loss is not established unless, in considering suitable employment, reasonable attempts were made at rehabilitation and retraining.
41 In effect, said Mr Myers, the plaintiff had determined to retire and that decision was made while the plaintiff had a capacity for lighter work. She had communicated this to her general practitioner in July 2007 when he records “thinking about retiring”.[25] In those circumstances, submitted Mr Myers, the plaintiff did not achieve the stringent test imposed by the legislation.
[25] DCB 49
42 In relation to pain and suffering, Mr Myers submitted it was appropriate to note that the plaintiff had considerable back pain and treatment prior to the injury. It was appropriate to thus apply the test set forth in Petkovski[26]and determine the nature and extent of the disability and restrictions placed upon the plaintiff’s lower spine before injury, as compared to after.[27] Mr Myers submitted that the plaintiff was regularly treated, particularly by a chiropractor over the years 2004 to 2007. In fact, in 2007, she was treated on four occasions by Mornington Osteopathy, in February and March, the last treatment being two days before the subject injury.[28] The complaints by the plaintiff to her treaters over this period were substantial, and there was reference to chronic low-back ache, on one occasion reference to pain into her leg, x-ray investigation and the prescription of medication.
[26] Petkovski v Galletti [1994] 1 VR 436
[27] see further Guppy v VWA & Anor [2010] VSCA 164, at paragraph 19
[28] PCB 100-101
43 He further submitted that there had been a significant improvement in the plaintiff’s lower spinal condition after the incident, and made particular reference to the osteopathy questionnaires completed by the plaintiff in 2008[29] which showed only a modest level of pain and disability. Taking those matters into consideration, Mr Myers submitted there was no great difference between the plaintiff’s condition before March 2007 as compared to after.
[29] PCB 118-121
44 Further, he pointed out that the CT scans disclosed no sinister pathology, no radiculopathy and very little in the way of treatment. In particular, there had only been one specialist referral in 2010. He referred to the report to the general practitioner by the plaintiff[30] that as at February 2010:
“Most of the time she has no pain and she sleeps without any problem.”
[30] PCB 44
45 Further, the plaintiff undertook much of her housework, looked after a grandchild and had an interest in knitting and candle making. He submitted the plaintiff’s life was not significantly affected by her low-back problems at the present time.
Conclusions
46 There is little difference in the medical opinions that the plaintiff suffered an aggravation of pre-existing degenerative disease, most particularly at the L3-4 and L4-5 levels. It is clear that the changes shown on CT scans of May 2007 and November 2009[31] had been present for a considerable period.
[31] PCB 42-43
47 I am further satisfied that the plaintiff suffered an aggravation of these underlying changes in the workplace incident described, in March 2007. I accept that the work she was undertaking at the time was heavy and arduous and well capable of aggravating an underlying back condition.
48 I had the opportunity to assess the credibility of the plaintiff in the course of her evidence. Video film was shown of the plaintiff in June 2010 at her home looking after her small grandson. Although on several occasions she lifted or pulled the grandson onto her knee while she was seated, there was nothing inconsistent in what was depicted, with her complaints to the doctors and the material contained in her affidavits. Generally, I found the plaintiff honest and straightforward, and generally accept her description of her lower back pain and the restrictions it imposes upon her life.
49 The starting point, in my view, is to make an assessment of the plaintiff’s work capacity. I was not assisted by the report of Ms Katrine Green[32] as, in my view, the matter is to be determined by medical opinion. The plaintiff’s general practitioner, Dr Muirden, considered that the plaintiff may be able to return to modified duties if she had significant retraining and there were restrictions on the activities she undertook. Further, any prospective employment would need to be local as she had difficulties driving any distance.[33] Dr Waddell, the osteopath, had a not dissimilar view. He considered the plaintiff had a very limited capacity for work. He said it would be difficult for her to find suitable employment given her age, limited education and job skills. He considered that she was unlikely to return to work.[34] Of significance, is the opinion of Mr de la Harpe as firstly, he is a treating orthopaedic specialist and, secondly, he has recently seen the plaintiff. He said that the plaintiff was unable to return to manual labour but that there may be a possibility of a return to sedentary duties with significant restrictions.
[32] PCB 136-146
[33] PCB 45b
[34] PCB 51-52
50 Most of the other consultant practitioners place significant restrictions upon any employment which the plaintiff would be able to undertake.[35]
[35] Professor Balla - PCB 72; Professor Marshall - DCB 21 and Dr Karna - DCB 25
51 Mr Dohrmann, who considered that the plaintiff’s lower back pain had largely resolved in December 2009, save for aggravations from time to time, noted that the plaintiff had no significant work experience, training nor qualifications that would enable her to easily undertake different work.[36]
[36] PCB 84
52 Dr Clayton Thomas placed considerable restrictions on any employment and limited the plaintiff to 20 hours’ work per week, less in a sedentary office environment.
53 Of note are the opinions of Mr O’Brien, for the plaintiff, and Mr Jones, for the defendant. Mr O’Brien regarded the plaintiff as totally and permanently incapacitated for any form of work, taking into account the lumbar back pathology and her employment background.[37] Mr Jones considered lighter work would be a possibility, but given her history of work in binderies over her lifetime, and while theoretically she had the capacity to work in a sedentary situation such as clerical employment, he could not see the plaintiff returning to work.
[37] PCB 94
54 What is clear from these various opinions is that the plaintiff’s capacity for modified or lighter employment is limited. Any assessment as to work capacity must take into account the definition of “suitable employment” as set forth in s.5 of the Act. That definition requires there to be taken into account a worker’s age, education, skills and work experience and the nature of the incapacity. The plaintiff is now fifty-nine years of age. Her employment experience has been exclusively in the area of bookbinding. She has a very modest level of education. When these matters are coupled with a lower back disorder which I accept leads to pain, usually upon exacerbation with heavier activities, and the restrictions placed upon work activities by the various doctors, then, in my view, the plaintiff’s work capacity at the present time is very limited indeed. While the Act is concerned with capacity, rather than practical and realistic prospects of obtaining employment, the opinions of Mr de la Harpe, Mr O’Brien and Mr Jones are most apposite. Realistically, the plaintiff has no capacity for suitable employment.
55 Accepting that a comparison should be made between the plaintiff’s condition before and after injury in accordance with the principles of Petkovski, the plaintiff was able to work in full-time manual employment up until the time of injury, and then, because of the incident or incidents which occurred on 30 March 2007, has been rendered with little if any capacity. Accepting the plaintiff has the onus pursuant to s.134AB(19)(b) of the Act of proving any ability to be retrained or rehabilitated, I am satisfied the plaintiff has met that onus. Given her age, lack of education and very limited work experience, I am not satisfied any training or rehabilitation would improve employment prospects. Further, even taking into account the matters set forth in s.134AB(38)(g) of the Act, I am satisfied that the plaintiff has suffered a loss of earning capacity of more than 40 per cent as required by s.134AB(38)(f).
56 In these circumstances, the plaintiff satisfies the legislative test in relation to loss of earnings.
57 As a result, I am not required to undertake an assessment in relation to pain and suffering.[38]
[38] See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
58 I shall make consequent orders.
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