Ryan v Trimas Corporation Pty Ltd
[2012] VCC 1037
•13 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00226
| KAREN LOUISE RYAN | Plaintiff |
| v | |
| TRIMAS CORPORATION PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 June 2012 | |
DATE OF JUDGMENT: | 13 August 2012 | |
CASE MAY BE CITED AS: | Ryan v Trimas Corporation Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1037 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – lumbar spine – pain and suffering and loss of earning capacity – whether injury “serious” – whether impairment satisfies the narrative test.
LEGISLATION CITED – Accident Compensation Act 1985 (as amended), s134AB(38)(a)
CASES CITED – Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Ms A Wood | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr I McDonald | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment, being late 2005 and early 2006, with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbar spine.
6 The plaintiff relied upon two affidavits, one sworn on 29 September 2009 and a further affidavit adopted on oath in the witness box on 25 June 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant.[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of her impairments to the lumbar spine in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]s134AB(19B) and 38E of the Act
(i) that at the date of hearing she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[6]
[6]s134AB(38)(e)(i) of the Act
(ii) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[7] and
(iii) that even with rehabilitation and re-training, she will still sustain a loss of 40 per cent or more.[8]
[7]s134AB(38)(e)(ii) of the Act
[8]s134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11]Ibid at [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
14 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[13]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[14]
[13]s134AB(38)(j) of the Act
[14] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issue
16 Counsel for the defendant raised whether there was an injury sustained by the plaintiff. Secondly, if so, was there any ongoing relationship between that injury and her current presentation. Thirdly, if so, this is a “range” case, both in terms of pain and suffering consequences and economic loss consequences, having regard to the statutory formula.
The Plaintiff’s Evidence
17 In her affidavits sworn on 29 September 2009 and 25 June 2012, the plaintiff deposes that:
· She commenced work with the defendant in March 2005 as a packer and assembly line worker.
· Towards the end of 2005 and into early 2006, she noticed low-back pain. In mid February 2006, she had a bad episode of low-back pain when she was lifting a bucket of parts from a shelf.
· On 13 February 2006, she saw Dr Lee at the Southern Cross Medical Centre. She was prescribed Tramadol and had time off work.
· On 15 February 2006, she saw Dr Ong at the Southern Cross Medical Centre because she had spasms in her low back and trouble putting weight on her right leg.
· On 17 February 2006, she returned to work on alternate duties and restricted hours. She was referred for physiotherapy, which she started on 18 February 2006 with Mr Murray Hutchinson.
· She was not coping at work and, in March 2006, Dr Ong further reduced her hours.
· In May 2006, she was still experiencing severe pain.
· On 7 June 2006, she saw Dr Gassin, musculoskeletal physician, who administered a cortisone injection. This helped for a short while but the pain came back.
· She went off work in August 2006 because of back pain. She attempted to return to work in October 2006, but only lasted one day.
· In November 2006, she again attempted to return to work, but was unable to cope.
· In December 2006, Dr Gassin arranged lower lumbar medial branch blocks, but she did not have lasting improvement. At this time she was back at work on reduced hours. She was struggling with work.
· She had time off over Christmas and felt better afterwards. She returned to full-time light duties, but her pain rapidly increased and by February 2007 she reduced her hours.
· In early 2007, she received further cortisone injections, but only had short-term improvement.
· On 22 March 2007, she ceased work.
· Her condition has not improved. She is never free of back pain, but it varies. Sitting and standing for too long, bending, twisting and lifting make the pain worse. She has spasms in her back from time to time. When this occurs it goes into her right leg. Most activities aggravate the pain and exertion significantly increases her back and leg pain. She takes medication daily. The medication makes her forgetful.
· She has difficulty getting out of bed. She has lost weight. She is upset and frustrated by her inability to get back to work. She is very concerned about her working future.
The Plaintiff’s Evidence in Cross-examination
18 The plaintiff was cross-examined and gave the following pertinent evidence:
· She worked for approximately six years with Victorian Railways, selling tickets, and became a signal assistant. When selling tickets, she could sit or stand, and it was fairly light work. She has not sought a job selling tickets in a cinema or sports venue. When working in the signals, she was required to clean and maintain the station and platform. She could sit and stand. She left the railways because she was made redundant.
· She worked with a toy library and would complete the paperwork and check in the toys and would clean the toys. She has not made enquiries of any toy libraries for employment because she does not know from one day to the next whether she can get up each day.
· She said she worked in an accountant’s office at one stage typing, using a typewriter, and photocopying. She does not know how to operate a computer. She said she has been referred to Centrelink, who sent her to a disability employment agency.
· She said Centrelink conduct assessments. They have not been able to re-train her.
· She agreed she had had very significant issues with her daughter. She agreed she has had problems with alcohol for probably four to five years, but mainly over the last twelve to eighteen months.
· She could not recall what treatment she had between June 2009 and October 2010.
· She said she had severe financial difficulties and lost her house.
· She moved to Warragul, and doctors refused to treat her. She said there were no doctors in Upper Beaconsfield. She agreed there had been extensive periods where no doctors had prescribed Panadeine Forte for her, but she had obtained tablets from her father.
· She first saw Dr Carne in November 2010. She said she last saw Dr Carne three weeks ago, when he prescribed her Panadeine Forte.
· She said her ability to work was not impacted by her alcohol.
19 In re-examination, the plaintiff said:
· She lies down because she is in pain.
· Centrelink sends her for assessments. The last assessment was that she could work for eight hours per week. She did not think she could, but would like to do so.
· There are some mornings she cannot get out of bed because of the pain. She said on three out of five days per week she has difficulty getting up.
· Over the last few years there have been various times where she has had nowhere to sleep. She is currently living in Housing Commission accommodation with her daughter, and another lady and her three children.
· She did not think she would be able to sell tickets in a cinema because often the jobs require you to clean, and she is unable to do that.
· She could not work in a toy library because she would not be able to lift the toys.
· When she was working in March 2007 she worked for fifteen minutes then had a break for fifteen minutes, which she repeated throughout the day.
The Plaintiff’s Medical Evidence
Dr Karen Ong
20 Dr Ong, general practitioner, provided four reports dated 17 February, 12 May, 12 July and 20 July 2006. She confirmed that the plaintiff presented at the Southern Cross Medical Centre on 13 February 2006 complaining of lower back pain. Dr Ong commenced treating the plaintiff on 15 February 2006 when she described lifting crates at work and felt a pull in her right lower back. It was Dr Ong’s view that the plaintiff’s symptoms and restricted function were due to a lumbar spine injury associated with mild disc bulge at L4-5 on CT scan. She said the work-related injury contributed to the development of the plaintiff’s condition.
21 In July 2006, the plaintiff was unfit for her usual duties but fit for alternate work duties. She anticipated the plaintiff’s condition and her capacity for work would improve. She expected that the rate of improvement would be slow, given the slow and fluctuating progress in the past months. The duration of incapacity remained uncertain.
Dr John Forsyth
22 Dr Forsyth, general practitioner, took over the treatment of the plaintiff from Dr Ong. He provided medical reports dated 16 and 26 February, 1 June, 12 September 2007, 24 January 2008 and 22 October 2010.
23 In 2008, Dr Forsyth agreed with Dr Thomas that the plaintiff would never be fit for unrestricted warehouse type duties. He said in the longer term she may be able to return to some form of work with restrictions similar to what she had previously been on, which was no prolonged bending or twisting, no lifting of other than light weights and being able to move around and change her back position as required. It was his view that the plaintiff’s low-back pain would continue.
24 Dr Forsyth indicated that he had met with the plaintiff’s employer in March 2007, when it was agreed that she would do light modified duties for six hours a day, five days a week. He was not optimistic that the plaintiff would be able to manage these hours given her previous history, but said she was keen to keep her job and wished to please her employer.
25 In October 2010, Dr Forsyth diagnosed a combination of L4-5 level disc and facet joint pains, worse on the right side, with associated soft-tissue muscular spasms. He expected her back pain to continue.
26 Dr Forsyth said the plaintiff had no current work capacity due to her chronic lower back injury and pain. He thought it unlikely she would have any capacity in the future for any form of gainful employment. His view was based on the fact her symptoms had not improved, she had not worked, or been able to work over the past three-and-a-half years, and prior to that, she was struggling. He accepted her injury was work-related.
Hampton Park Physiotherapy
27 Mr Murray Hutchison, physiotherapist, treated the plaintiff at the request of her general practitioner from 18 February 2006. He provided three reports dated 13 March 2007, 23 January 2008 and 11 October 2010. He ceased treating the plaintiff in January 2009. It was his opinion that the plaintiff had a lumbar dysfunction as a consequence of the lumbar soft-tissue strain and underlying L4-5 disc pathology which occurred as a result of her work duties when she was required to perform frequent, and sometimes heavy, lifting.
28 In January 2008, Mr Hutchison anticipated the plaintiff would have a future capacity for suitable work duties which would be limited to manual handling type work with no heavy or awkward lifting, no repetitive bending and no excessive reaching, pushing or pulling duties. He thought she would be suited to a position involving non-repetitive work, enabling frequent postural changes.
29 In 2010, Mr Hutchison said he had not assessed the plaintiff since January 2009 but expected she would have ongoing significant functional restriction, particularly in relation to lifting, which would prevent a return to her pre-injury duties. He thought she would have a capacity for suitable work duties as outlined in his earlier report. He accepted the plaintiff had a permanent disability and that it was work related.
Dr Robert Gassin
30 Dr Gassin, musculoskeletal physician, provided reports dated 31 May, 21 June, 19 September and 20 December 2006, 4 April 2007 and 25 January 2008. Dr Gassin saw the plaintiff on referral from her general practitioner. He accepted the injury was work related. He said the plaintiff’s injury was most likely discogenic in origin. However, other lumbar structures, including the facet joints and musculo tenderness structures cannot be excluded. He proceeded with an injection of cortisone in the right low back. He requested that WorkCover accept liability for the right L3-L5 medial branch blocks with view to radio-frequency denervation of symptomatic facet joints. An MRI scan of the lumbar spine revealed disc desiccation and a small posterior protrusion at L4-5 with no neural compromise.
31 In April 2007, Dr Gassin referred the plaintiff to Dr Clayton Thomas for an assessment of her suitability in relation to a pain management program.
32 In May 2007, Dr Gassin said the plaintiff was not fit for her pre-injury duties. She had a capacity for work of a non-physical nature of at least a few hours per day. He noted, however, that she had always performed physical work, and was unsure whether she had the skills to perform other types of work.
33 In 2008, Dr Gassin said the plaintiff’s pain was most likely of low lumbar discogenic origin. It was his opinion that the plaintiff’s symptoms were consistent with the stated cause.
Dr Ray Carne
34 Dr Carne, general practitioner, provided reports dated 3 February 2011 and 21 May 2012. Dr Carne said the plaintiff’s symptoms and signs were consistent with right sciatica and mechanical low-back pain associated with the pathology demonstrated in her CT and MRI spinal imaging. Dr Carne thought it would be difficult for the plaintiff to obtain any appropriate employment. He recommended that she should have a further attempt at back rehabilitation.
Dr Clayton Thomas
35 Dr Thomas, consultant in rehabilitation and pain medicine, provided reports dated 4 July 2007, 10 January 2008, 27 September 2010, 21 April 2011 and 10 May 2012.
36 In July 2007, Dr Thomas thought the plaintiff had a capacity to work but was unable to return to unrestricted warehouse type duties. He thought she could return to work in the longer term with restrictions.
37 In April 2011, Dr Thomas said the plaintiff had very few transferrable skills and did not present as an attractive prospect for any prospective new employer; she presented as being unemployable.
38 In May 2012, Dr Thomas saw the plaintiff at the request of her solicitor. It was his view that the plaintiff was suffering from lower back pain, probably symptomatic spondylosis, and that she had pain arising from the discs and facets of her lower lumbar spine. He accepted that her work was a cause of her pain problem and remained a cause of her current level of disability. Whilst he accepted there was an organic injury, he said the investigations were fairly non-specific. He believed that she could work for 24 hours per week in a sustained, consistent reliable manner with restrictions of a 5‑kilogram lifting limit between waist and chest height. He said she would need to work in an appropriately set up ergonomic work station. He said her restrictions were permanent.
39 Dr Thomas said the plaintiff’s injury was a significant injury for a person who has only ever worked in a manual processing type job. His prognosis was persistent pain and disability.
Mr Justin Hunt
40 The plaintiff was medically examined by Mr Hunt, orthopaedic surgeon, in February 2011 at the request of the plaintiff’s solicitor. Mr Hunt diagnosed symptomatic lumbar spondylosis (degenerative disc disease and facet joint arthritis with ongoing lower back and right leg radicular symptoms). He noted that her clinical presentation matched the imagining findings in 2006.
41 He accepted her injury was work related, organic in nature and represented an aggravation of pre-existing lumbar spondylosis. He said it was unlikely that the plaintiff would be able to return to her pre-injury work or any alternative work into the foreseeable future.
The Defendant’s Medical Evidence
Dr Kevin Fraser
42 Dr Fraser, rheumatologist, provided reports dated 18 May 2010, 28 March and 28 April 2011, at the request of the defendant’s solicitors. Dr Fraser examined the plaintiff. He did not review the CT scan of May 2006 or the MRI scan of September 2006. However, he was aware of their findings. It was his view that there was considerable doubt as to whether or not there was an organic basis for her symptoms. He considered there was a marked overreaction on physical examination which suggested that she was greatly exaggerating her symptoms and signs, either subconsciously or consciously. He said any radiological findings were consistent with age-related degenerative changes and he did not consider she sustained any work-related disc injury. He said any putative injuries, such as an aggravation of pre-existing degenerative changes and/or musculoligamentous strain, should have long since resolved. He thought that non-organic factors were largely responsible for her symptoms and signs.
43 Dr Fraser thought the plaintiff was fit for suitable employment, including light process work not requiring bending or twisting, with a lifting restriction of 5 kilograms.
44 In March 2011, Dr Fraser said his previous conclusions were unchanged. He said he did not consider there was any incapacity as a result of a compensable injury.
Dr Tony M Kostas
45 Dr Kostos, rheumatologist, provided reports dated 14 July 2010, 6 April and 29 April 2011, at the request of the defendant’s solicitors.
46 In 2007, Dr Kostos said, on examination, he failed to find any cause for the plaintiff’s problem, but noted she had a generalised pain response with a number of inconsistencies and discrepancies on physical examination. It was his view that the plaintiff was presenting with features more consistent with a Chronic Pain Syndrome. He did not think any other treatment was likely to help and he did not believe the plaintiff was currently incapacitated for work. He thought she could undertake the duties she was performing and the hours that she was working at the time her employment was terminated. He said her prognosis is poor.
47 In July 2010, Dr Kostos said there had been considerable changes to the examination findings that he noted in his previous review, that these have only served to confirm his opinion that the plaintiff had a Chronic Pain Syndrome. He said she did not have any objective physical abnormalities. He said the plaintiff was trying to give the impression that she is totally incapacitated for employment, but there was no evidence to suggest that the incapacity resulted from a compensable injury.
48 He said, though, that given her presentation, it is unlikely she will ever work again. He said with suitable training, she should be able to cope with positions in administration, as a medical receptionist and in customer service. He confirmed that her prognosis was poor.
Dr Gary Davison
49 Dr Davison, occupational physician, examined the plaintiff in February 2009 at the request of the defendant’s insurer. He said the plaintiff’s presentation was dominated by pain and illness behaviour, as well as inconsistencies. He said there were no objective signs of lower back injury. He was not convinced that the plaintiff’s employment was a material contributing factor to her condition. He said there were no objective signs of lower back injury on examination; her presentation was dominated by pain and illness behaviour. He could not exclude the probability that the plaintiff was not giving a good account of herself.
Dr Dominic Yong
50 In December 2006 and January 2007, Dr Yong, occupational health specialist, conducted a work site assessment and examined the plaintiff. He reviewed a range of tasks offered to the plaintiff as part of a return to work program. He said specific restrictions are recommended, which included:
·No repeated bending or twisting of the back
·No firm pushing and pulling
·Adopt a variety of postures, such as seated and standing.
51 Dr Yong noted that the modified tasks were all self-paced tasks. He said the plaintiff had been currently certified by her treating doctor to work modified duties for three-hour shifts, five days a week.
52 In August 2007, after examining the plaintiff, Dr Yong said the plaintiff had a chronic low-back pain and that she was due to commence a multi-disciplinarian rehabilitation program. He said the plaintiff’s prognosis was guarded, given her failure to respond to a range of initial conservative therapies. He believed she had a partial incapacity for employment as a result of the injuries arising out of her employment. He said she did not have a capacity to work pre-injury duties. She could participate in a graduated return to work program where she works alternative duties. He said she had a capacity to work reduced hours. He accepted her injury was work related.
Dr Timothy Wood
53 In August 2006, Dr Wood, sports and musculoskeletal physician, examined the plaintiff at the request of the defendant’s insurer. He accepted the plaintiff had been injured at work and her condition had not resolved and was significantly limiting her ability to perform pre-injury duties. He did not believe that the plaintiff’s injury was an aggravation, recurrence or acceleration of a pre-existing injury or disease. He said the plaintiff was unfit for work. He noted that the plaintiff was an extremely well motivated worker prior to the accident.
Mr Michael J Dooley
54 Mr Dooley, orthopaedic surgeon, examined the plaintiff in April 2012 at the request of the defendant’s insurer.
55 It was his view that the plaintiff had mild naturally occurring degenerative disc disease of the lower lumbar spine. He accepted that the plaintiff injured herself at work in February 2006, which aggravated her underlying degenerative disc disease of the lower lumbar spine. He said the normal course was that one would expect the plaintiff to have a significant improvement in pain over a three-month period after the injury. He said clinically, there was no evidence of objective neurological deficit affecting the lower limbs. He thought the plaintiff had developed a Chronic Pain Syndrome which was being influenced by psychological factors. He said from an orthopaedic point of view only, the loss of lumbar spine functioning resulting from the compensable injury had been mild, but will persist for the foreseeable future.
56 Mr Dooley said the plaintiff was unfit to carry out regular heavy physical work or work that involves a lot of bending and lifting. She was capable of carrying out light physical work and/or clerical duties.
Vocational Assessments – Recruiting Training Consultants
Flexi Personnel
57 The plaintiff relied upon two vocational assessments dated July 2010 and January 2012 prepared by Ms Kaye Angel, human resources consultant.
58 After interviewing the plaintiff and considering all medical reports, it was Ms Angel’s view that the plaintiff would have great difficulty in finding suitable employment because her skills and work experience have been confined to manual work, which she can no longer perform. She has a limited work capacity due to her injuries, suffers constant fatigue and needs to lie down during the day, the likely aggravation of her physical injuries further resulting in high absenteeism and lost production. Her medicated state and restrictions significantly affect her productive work capacity and the fact that she had been out of the work force for four and three-quarter years. She said that there are other negative factors that would affect the plaintiff in being re-trained into or finding alternate employment. They are:
§ Having to compete against other experienced able-bodied applicants for employment
§ Lack of computer knowledge and limited clerical skills
§ Pain-medicated state, fatigue and restrictions negatively affecting her opportunities to be re-trained. Restrictions and pain affecting her capacity to sit or stand
§ Her medicated state affecting her capacity to safely operate machinery.
59 Ms Angel said, as a recruiter, she would be concerned that if the plaintiff was placed into work, often workplace job descriptions can change, which could result in the duties not being compatible with her restrictions. She said that as a recruiter, she would find it difficult to find a company willing to employ the plaintiff due to her injuries and limited work capacity. She concluded that the plaintiff’s injuries and work restrictions will prohibit her from returning to the workforce in a meaningful way.
Katrine Green Consulting Pty Ltd - Human Resources at Work
60 The plaintiff relied upon three reports prepared by Ms Green dated 22 September 2010, 14 April 2011 and 28 May 2012. Ms Green reviewed medical reports, interviewed the plaintiff and reviewed vocational reports from Nabenet. She concluded that the types of work and duties suggested in the medical opinions would only be available with a pre-existing employer, as physical guidelines are incongruent with low skilled, manual labouring work, which is the work undertaken by the plaintiff. Ms Green considered the plaintiff’s former employment with Victorian Railways, where she worked selling tickets and in the signal box. She said automation and changed work practices have altered the nature of those duties. The skills she acquired from those jobs are no longer relevant. Ticket sellers in cinemas are required to sell confectionary and associated products, a physically active role, beyond the physical tolerance reported.
61 Ms Green said the plaintiff had no transferrable skills, she was computer illiterate and the course suggested by Nabenet was inappropriate because of the plaintiff’s sitting tolerance and the course recommended is so basic that it would not equip the plaintiff with the necessary skills to obtain employment.
62 Ms Green identified jobs based on the plaintiff’s education, work history and skills, suitable for the plaintiff, of store person, order picker/packer, hand packer, factory process worker, product examiner/inspector, housekeeper/room attendant and school supervisor. Ms Green said, having regard to the medical opinions, analysis of the above positions and demands of the core duties due to the plaintiff’s physical capacity, she would be unable to perform the inherent duties of her previous occupation and the suitable employment identified.
Nabenet
63 The defendant relied upon a report from Nabenet dated 30 March 2010. The Nabenet report accepted the plaintiff could not return to her pre-injury work, and, taking into account the restrictions imposed by the medical profession, Nabenet said her employment options were limited, as the plaintiff did not have a driver’s licence. Enquiries made with local job network provider, Workways, indicated that factory-based roles in Warragul would not satisfy the requirements. Nabenet said that employment options that meet the recommended physical restrictions were customer service/administration based. In light of this, Nabenet recommended some computer training for the plaintiff.
Video Surveillance
64 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index of the defendant’s court book. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
65 The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw. The plaintiff answered all questions put to her in a direct and frank manner and made appropriate concessions for example she conceded that she had problems with alcohol. Her credit was not successfully challenged in the witness box. Whilst Dr Fraser and Dr Kostos were of the opinion the plaintiff was exaggerating, the overwhelming tenor of the medical evidence, in particular the treating medical practitioners, is that the plaintiff has a genuine low-back condition consistent with her presentation. Accordingly, I accept that the plaintiff was a witness of truth.
Analysis of the Evidence
66 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course of, her employment with the defendant. Most of the medical witnesses, including all treating doctors who saw the plaintiff, and Mr Hunt and Mr Dooley, medico legal witnesses for the defendant, accepted the injury was work-related. Based on the medical evidence, I accept that the injury is an injury involving the L4-5 disc in the form of aggravation of degenerative changes or symptomatic lumbar spondylosis.[15]
[15]Dr Fraser and Dr Kostos, rheumatologists, did not support the view of the majority. Dr Fraser doubted there was an organic basis for the plaintiff’s current symptoms. He said there was a marked overreaction on physical examination and that she was suffering age-related changes. Dr Kostos could not find any cause for the plaintiff’s problems and said there were inconsistencies and discrepancies on physical examination. He was unable to make a diagnosis and thought she presented with features more consistent with a Chronic Pain Syndrome.
67 Given that I accept the injury is an aggravation of degenerative changes or symptomatic lumbar spondylosis I must consider what the evidence discloses as to her prior condition and determine whether the additional impairment resulting after late 2005 and early 2006 was “serious”.[16]
[16]Petkovski v Galletti [1994] VR 436
68 The evidence was that the plaintiff enjoyed her job with the defendant. She had no difficulty performing the work. In 2005 she had been made permanent. There was no evidence of previous back pain. I accept that prior to later 2005 the plaintiff was performing normal duties. After the back injury on 13 February 2006 she went off work and sough medical attention. She attempted to return to work on numerous occasions on alternate duties and reduced hours during 2006 and into March 2007 when she finally ceased work. In June 2006 and early 2007 she received cortisone injections which provided some assistance for limited time and physiotherapy treatment. Her evidence was that she required regular breaks every 15 minutes because of the back pain. Her condition has not improved. She is never free of back pain but it varies. She has difficulty getting out of bed because of the pain on an average of three mornings a week. She requires ongoing medication. Her back pain is made worse by sitting and standing too long, bending, twisting or lifting.
69 I accept that the consequences the plaintiff described arose as a result of the work injury.
70 Under s134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[17]
[17]s134AB(38)(h)
71 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and
(b) loss of earning capacity.
72 The provisions of s134AB(38) of the Act provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[18] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[19] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[20]
[18]s134AB(38)(b) and (c)
[19]s134AB(38)(e), (f) and (g)
[20]Advanced Wire & Cable Pty Ltd & VWA v Abdulle (op cit) at [63]
73 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
74 In determining this application, I am required to make the assessment of serious injury at the time of the application. Accordingly, I place great weight on the up-to-date evidence.
75 To this end, I am more influenced by the current evidence of doctors Carne, Thomas and Dooley, all of whom reviewed the plaintiff in 2012.
76 Dr Carne said it would be difficult for the plaintiff to obtain any appropriate employment. However, before stating that the plaintiff was unable to return to any work, he said she should have a further attempt at back rehabilitation.
77 Dr Thomas said the plaintiff was fit for 24 hours per week of modified duties with restrictions, including 5-kilogram lifting limits and a need for an ergonomic workstation. In 2011 he acknowledged the plaintiff was not an attractive employee for a prospective employer.
78 In 2012, the vocational report of Ms Green suggested such limitations would only be available with a pre-existing employer, as the physical guidelines are incongruent with low-skilled manual labour work, the work performed by the plaintiff.
79 Ms Angel said, as a recruiter, she would find it difficult to find a willing employer to employ the plaintiff given her injuries and limited work capacity.
80 Dr Dooley said the plaintiff was unfit to carry out any regular heavy work or work that involved a lot of bending. He said she had a capacity for light physical work or clerical duties.
81 Ms Green addressed the possibility of re-training. She was aware that many years ago the plaintiff had worked in an office for a short period, photocopying and typing. However, she noted she used a typewriter and said that the plaintiff is computer illiterate.
82 Nabenet, in 2008, suggested the plaintiff undertake a computer course. Ms Green said the course suggested by Nabenet was inappropriate because of the plaintiff’s sitting tolerance and the fact that the course was so basic that it would not equip the plaintiff with the necessary skills to obtain employment.
83 I note that in 2011, Mr Hunt said the plaintiff was unlikely to return to pre-injury employment or alternative work in the foreseeable future. Dr Kostos said she was unlikely to ever work again. He thought she could work in a position in administration, as a medical receptionist and in customer service. I refer to the comments of Ms Angel and Ms Green in this regard. Mr Fraser thought she could engage in suitable employment, including light process work, with limitations. All doctors accepted that the plaintiff could not return to her pre-injury employment.
84 Given all of the evidence and the fact that the plaintiff has no skill or training, is computer illiterate, has difficulty sitting and standing and has attempted over a period to return to modified work with which she could not cope, I am satisfied that she is unable to return to unrestricted warehouse type duties or realistically, any work for which she is qualified, or has recent work experience. She has few transferable skills. This represents a significant loss to the plaintiff, both with respect to her enjoyment of life and self-esteem.
85 I am satisfied that it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being more than significant or marked, and properly regarded as considerable, when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[21]
[21]Stijepic v One Force Group Aust Pty Ltd & Anor (op cit) at [44]
86 I am satisfied that the low-back injury is permanent, given that it has continued since the incident. This is supported by most of the medical opinion.
87 In reaching this view, I have only taken into account the plaintiff’s physical injury.
88 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
89 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
90 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and
(ii) “after injury earnings”.
91 The “without injury” earnings must be calculated by reference to the six-year period specified in s134AB(38)(f).
92 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion, had the injury not occurred. It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
93 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[22]
[22](supra) at paragraph [70]
94 The plaintiff’s present earnings from personal exertion are nil.
95 All doctors agreed that the plaintiff could not return to pre injury employment. All doctors said she would need to work within physical limitations.
96 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act. The plaintiff attended the Victorian Rehabilitation Centre for a nine-week rehabilitation program. Dr Thomas, her treating rehabilitation physician, said that her future medical treatment was predominantly supportive and that from a medical perspective, she was at a relative medical endpoint. Further, the plaintiff has had the assistance of a disability employment agency through Centrelink. That is relevant, as the agency has been unsuccessful in obtaining employment or identifying employment for the plaintiff. Secondly, based upon the plaintiff’s evidence, the agency is certifying her or recommending her for work of eight hours a week. I am satisfied that the plaintiff has no prospect of re-training and rehabilitation that will enhance her earning capacity.
97 Based on the plaintiff’s presentation in court, and the views expressed by Ms Green and Ms Angel, together with the medical witnesses; namely, Dr Carne, Dr Thomas and Mr Dooley, I think it highly unlikely that the plaintiff would obtain, in the open market, light duties of a type which would enable her to return to work.
98 Even if I were to accept the view of Dr Thomas that the plaintiff could return to 24 hours of work per week the plaintiff stills satisfies the arithmetical test. On average, the plaintiff earned $658.00 gross per week for the financial year ending 30 June 2006. I note however, for the latter part of the financial year, the plaintiff was injured and had time off work. At the time of her injury, she was earning $16.21 per hour. It was agreed between the parties that as at February 2009, the plaintiff would have been earning $724 gross per week based on $18.12 per hour. Sixty per cent of $724 gross per week is $434.40, which is the requisite threshold for s134AB(f) of the Act. Accepting Dr Thomas’ view that at best the plaintiff is capable of working 24 hours of light duties per week, Flexi Personnel provided the hourly rate of $16.49, being the Clerks – Private Sector Award, which included office assistant, answering telephones and performing basic clerical duties. 24 hours at $16.49 equals $395.76, which is less than the sixty per cent threshold. Even if I was to find the plaintiff was capable of working 24 hours per week, she would still be suffering the requisite loss of earning capacity of 40 per cent or more.
99 Therefore, I am satisfied that the plaintiff satisfies the 40 per cent requirement and has sustained an injury within the meaning of s134AB of the Act.
100 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for economic loss consequences as a result of her employment with the defendant in late 2005 and early 2006.
101 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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