Salihbegovic v Uncle Tobys

[2014] VCC 401

n

IN THE COUNTY COURT OF VICTORIA

AT WODONGA

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-13-00318

MARELA SALIHBEGOVIC	Plaintiff
v
UNCLE TOBYS	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Wodonga
DATE OF HEARING:	24, 25 and 26 February 2014
DATE OF JUDGMENT:	8 April 2014
CASE MAY BE CITED AS:	Salihbegovic v Uncle Tobys
MEDIUM NEUTRAL CITATION:	[2014] VCC 401

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Altona Bus Lines v Lococo [2002] VSCA 159; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:Leave granted to bring proceedings for damages for pain and suffering.  Application in relation to loss of earning capacity dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti SC with Mr R Morrow	Slater & Gordon Lawyers
For the Defendant	Ms K Galpin with Mr D Oldfield	Wisewould Mahony Lawyers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on 31 October 2008 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The body function relied upon in this case is the lumbar spine.

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6       The impairment of the body function must be permanent.

7       The plaintiff bears an overall burden of proof upon the balance of probabilities.  Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.

8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

9       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.

11      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

12      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.

13      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

14      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

15      The plaintiff relied upon three affidavits and gave viva voce evidence.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence 

16      The plaintiff is presently aged thirty three, having been born in April 1980 in Bosnia.  She lives in Wodonga with her mother, who is a disability support pensioner.

17      At the age of sixteen, the plaintiff and her family migrated to Australia.  She then completed Year 12 and later obtained a Certificate IV in Tourism, a one-year TAFE course.

18      The plaintiff then enrolled in a business management degree, majoring in tourism at Charles Sturt University.  She did two years’ study but was unable to complete the course, as she could not cope with the micro and macro economics subjects.

19      Following that study, the plaintiff worked as a sub assembly assistant and also as a machine operator from 2002 to 2007.  That job involved quite a lot of quality assurance work where she was required to set up and program machines.  She was accredited to level 3.2 in that role.

20      After her return from a trip overseas, the plaintiff worked in a bakery for some months.  She then commenced employment with the defendant in 2006, working twelve-hour shifts, both day and night, three days on and three days off.

21      On the said date, the plaintiff suffered injury at work whilst lifting and manoeuvring a heavy and awkward hopper, working in factory 3 (“the incident”).  The hopper was a 4-foot square stainless steel box which weighed between 10 and 15 kilograms.[3]

[3]Transcript (“T”) 75

22      As a result of the incident, the plaintiff suffered low back and right leg pain.[4]

[4]T38

23      Having attended first aid, the plaintiff was taken by ambulance to Corowa Hospital, where she was prescribed Panadeine Forte and rest.

24      The plaintiff continued under the care of the work doctor, Dr Milliken, who certified her as unfit for work, and she was also referred for physiotherapy.

25      The plaintiff was off work for several weeks and initially did office work at home.  When she returned, the plaintiff worked in the area known as factory 2.  The work there was much lighter, working with small products.

26      The plaintiff had to do quality control work, as well as sometimes running a line.  She performed these duties sitting and standing.  She agreed things were quite manageable.[5]  There was no lifting or twisting and it was an easy job – much easier than factory 3.  The plaintiff gradually increased her hours to full time with overtime when it was occasionally offered.

[5]T43

27      The plaintiff agreed she reported improvement to Dr Milliken over the following months until requesting a clearance on 19 February 2009.  The clearance involved going from casual work on lighter duties to increasing her hours to three 12-hour shifts, plus overtime.

28      The plaintiff, however, had a lot of problems doing her work in early 2009 but as the defendant did not want to pay her WorkCover, she had to go to work.  The plaintiff was told by Ms Ridley, the defendant’s OH& S officer, that she was only entitled to medical expenses as she was a casual worker.[6]

[6]T38

29      The plaintiff continued working because she needed the money.  She still had a back and leg problem but was just trying to suppress it so she could work.  She was just trying to get on with her day.  She was taking strong Panadol at that time and she took off some sick days because of her back pain.[7]

[7]T78

30      From time to time, the plaintiff complained to workmates of low back pain.  Sometimes she was limping because of back and leg pain.  When asked if there was anything wrong, she said she had new shoes, causing her to limp. 

31      The plaintiff’s pain had never settled down since the incident – “It got reduced.”[8]

[8]T45

32      The plaintiff continued in light duties until February 2010 (“the second date”), when she suffered an increase in her back pain whilst assisting her mother, who had fallen at home.  She agreed she was then scared in a way that her previous problem was going to come back again.[9]

[9]T31

33      On the second date, the plaintiff experienced excruciating pain in her back and right leg, and within a couple of hours, she also experienced pain higher in her back on the right side.

34      The plaintiff attended Dr Milliken, but he refused to give her a WorkCover certificate, telling her that he needed to speak to Ms Ridley.  Thereafter, the plaintiff received treatment from Dr Tapsell, whom she had been seeing the previous two years for unrelated matters.

35      The plaintiff submitted a claim under her income protection policy because she hurt herself at home and the defendant would not take her back unless she was “100 per cent clear”.[10]

[10]T60

36      The plaintiff has felt unable to return to work since the second date.  Her back became so much sorer and her right leg was so much more painful than before.  She has used prescription medication continuously since that time.

37      The plaintiff had limped occasionally from the pain since that time.  She did not think she limped prior to the second date.[11]

[11]T45

38      The plaintiff agreed she told Dr Milliken that she had stiffness and soreness but no major problems until the second date.  She agreed the pain on that occasion was like a hot needle going down her back and right leg.[12]

[12]T48

39      The plaintiff was prescribed Panadeine Forte and physiotherapy.  She was referred for an MRI scan and to a neurosurgeon.  She was advised surgery was not appropriate and she should undergo pain management. 

40      The plaintiff, accordingly, contacted Dr Todhunter, a pain management specialist, and underwent an epidural and was treated with Norspan patches.  Gabapentin, Endep and Endone were prescribed.

41      When she swore her first affidavit in August 2012, the plaintiff was taking three Endone a day but she suffered side effects, with difficulty concentrating and sleeping, which affected her ability to drive.

42      The plaintiff continued to suffer chronic low back pain, sometimes severe and worse with activity.  She also had pain in the right leg from the buttock to the heel and had numbness in the three smaller toes.  She had pins and needles and her foot suffered from discolouration, changing from white to pink, to purple and she suffered sweating and coolness.  The leg pain was constant and she had difficulty sleeping on her right side.

43      The plaintiff initially noted sweatiness on her right leg after 2008 but did not mention it to doctors as she did not think anything of it.  As far as the plaintiff could recall, she first mentioned swelling to a doctor when she told Dr Todhunter in April 2011.  She first noticed discoloration two years earlier but she did not think anything of it.  These problems were there before the second date although the plaintiff did not inform doctors about them.  She could not recall if she told Dr Brooder about these issues in 2009.[13]

[13]T54

44      Occasionally the plaintiff has experienced pain all around her leg.  It was an unpredictable problem.[14]

[14]T50

45      In her second affidavit sworn in April 2013, the plaintiff confirmed she continued to suffer ongoing back pain and right leg pain.  This situation was again confirmed in her most recent affidavit of February 2014.

46      Prior to the Ketamine infusions later organised by Dr Todhunter, the plaintiff had no improvement with medication, although it reduced her pain a little bit.  She took medication on her doctor’s advice.[15]

[15]T33

47      The plaintiff underwent the first Ketamine infusion on 24 September 2012 as an inpatient for five days.  Thereafter, she commenced physiotherapy and hydrotherapy on Dr Todhunter’s recommendation.

48      The first infusion provided some improvement in the plaintiff’s level of back pain and movement; however, after that procedure, she had hallucinations and bad dreams in hospital and occasionally thereafter.

49      A second infusion in April 2013 reduced the plaintiff’s immediate back pain and right leg pain by about fifty per cent but generally, the effects wore off.

50      Following the first two infusions, the plaintiff’s ability to walk had improved.  She could walk for ten to fifteen minutes around the streets before her back and neck pain increased.  At night, she continued to wake with back and right leg pain but that had improved somewhat since the infusion and when she woke she took painkillers and Panadol.

51      There was a third infusion in November 2013, which provided a similar initial relief of pain to the second infusion.  However, it was accompanied by a bad reaction with nightmares and constant vomiting and the dosage of Ketamine had to be reduced.

52      Dr Todhunter has now informed the plaintiff she will continue to require infusions into the future and that the pain relief attended thereto would only last for between two and three months.

53      Between infusions, the plaintiff continues to take analgesics.  Patches have been replaced by Targin 10, which she takes twice daily.  She also takes two Endone a day and 75 milligrams of Endep at night.  She takes 75 milligrams of Lyrica in the morning and at night.  The patches were replaced, as the plaintiff was developing redness and itchiness in the areas of the patches themselves.  Since taking Targin, the plaintiff has continued to suffer vivid dreams and nausea.

54      The plaintiff’s pain medication causes her to be drowsy, sleepy and lacking in energy throughout the day.  She constantly feels like going to sleep and she has difficulty concentrating.

55      The plaintiff continues to have weekly physiotherapy, together with a gym program developed under the supervision of her physiotherapist.  Further, hydrotherapy has been applied for.  In the meantime she has commenced pool exercises herself.

56      The plaintiff’s medication takes away the severe pain a little.  Her pain is worse with activity such as walking.

57      The plaintiff has always cooperated on medical examinations.[16]

[16]T63

Activities

58      The plaintiff’s injuries have impacted upon her recreational activities which she previously enjoyed.  These are now markedly reduced.  She used to enjoy visiting family in Europe.  She also attended the gym regularly and she enjoyed swimming and recreational basketball.  She previously enjoyed reading but was now unable to sit for lengthy periods and she had difficulty concentrating when reading due to her medication. 

59      The plaintiff used to enjoy cooking, especially traditional Yugoslav food.  While she is still able to cook, she has difficulty with lifting heavy pots and pans and she does not cook as often or as comfortably as previously.  She only cooks light meals, whereas prior to her injury, she cooked very large meals for large numbers of people.

60      The plaintiff has gained weight due to inactivity, not being able to go to the gym.  The plaintiff denied she stopped attending the gym in 2009 when she was pregnant, as Dr Silver recorded.  She stopped going to the gym in 2008 after she was injured.[17]

[17]T52

61      As of April 2013, the plaintiff had gained about 13 kilograms due to inactivity and from her medication intake.  She was then trying to do exercises at home that she had been shown by her physiotherapist.

62      The plaintiff is not able to drive for lengthy periods and she avoids driving because the pain medication makes her drowsy. 

63      The plaintiff used to do a lot of gardening with her mother but she can no longer do so because of back pain. 

64      The plaintiff continues to be restricted in the performance of her housework and much of it was done by her mother.  The plaintiff’s husband suffered a back injury and is sometimes bedridden.  Most tasks are left to the plaintiff’s mother, with the plaintiff doing some light housework.  The plaintiff tries to avoid doing too much housework because of increased pain.  She dusts at lower levels and tries to avoid vacuuming, which is done by her mother

65      The plaintiff and her mother continue to do the shopping on a weekly basis.  The plaintiff manages to take the trolley out to the car but normally asks for help putting the groceries into the car and unloading the shopping.  That activity aggravates her pain.  The plaintiff no longer does the “big shop” by herself. 

66      When they moved to a new home in March 2012, the plaintiff managed to move lighter items and pack and put away her clothes.

67      The plaintiff’s son is now almost four.  He wants to play and wrestle with her constantly.  She has to say “no”, as she cannot face the increased pain which results.  She tries to listen to music with him and read to him and she avoids ball games.  She takes him to swimming lessons.

68      In the mornings, the plaintiff generally avoids driving her son to childcare as she feels drowsy and distracted by her medication.  Her mother or husband generally do the driving.

Work

69      Had she not suffered injury, the plaintiff would be earning at least $60,000 a year with the defendant.  She did not know when she was likely to resume employment, if at all, because her symptoms.

70      The plaintiff had not been offered any return to work plan or any retraining.  She greatly missed working, its attendant responsibilities and sense of achievement and good income.  She loved the social aspect of work and felt great pride going to work.  Although she would love to return to some form of work, she did not know if it was possible because of her ongoing back pain and restrictions.

71      The plaintiff agreed she has quite high levels of computer skills with experience in Excel, PowerPoint, and the Microsoft Word ticketing system.[18] The plaintiff was trained in forklifts and machines whilst working for the defendant.

[18]T26

72      The plaintiff denied she told Dr Yong in 2013 that she would consider returning to the light job in factory 2.  She could not do so now because of her current problems and she would not be able to walk that much.  She was only able to change her posture when she was running the line.[19]

[19]T46

73      The plaintiff has not looked for work since the second date because she is certified unfit.  She would love to work and she loved working.  She has discussed work, such as bookkeeping with Dr Todhunter.  She agreed he thought that would be suitable for her at present.  They have spoken about her doing some clerical work.[20]

[20]T68

74      The plaintiff needs retraining first.  She has not applied for any retraining or made any enquiries in this regard.  Dr Tapsell’s advice was that the plaintiff had to get her pain under control first.[21]

[21]T68

75      The plaintiff has not asked her case manager about retraining.  She would be prepared to involve herself in retraining if she was medically fit to sit in a classroom.  She would definitely apply for retraining in bookkeeping.  That would be suitable for her, but not full time.  It is a field she would enjoy, given her background.[22]

[22]T69

76      When asked about her ability to do a range of clerical jobs, the plaintiff explained her qualifications were now ten years old.  She has never worked as a travel agent or in an office.  She has never thought of retraining as a PA.  She could liaise with staff on matters relating to an organisation.  With her medication, her concentration is very poor.  Further, she is unable to sit for very long.[23]

[23]T71

77      The plaintiff thought if she was qualified to work as a bookkeeper, she could work 12 to 15 hours per week.[24]

[24]T78

78      Over the last year, the plaintiff’s back pain has only improved in the periods after the infusions.  She is worried about the future.  Although she wants to work, there is no job that she is aware of that she could do.

Treaters

79      The plaintiff was certified unfit for any duties for a month from 31 October 2008 by Dr McCurdy at Corowa Hospital.  He noted her condition was mid thoracic mechanical back strain suffered lifting factory equipment on 31 October 2008.

80      Dr Milliken certified the plaintiff fit for restricted duties from 10 to 20 November 2008, working four hours per day in sedentary duties only, describing her condition as “acute back strain”.

81      From 19 November to 17 December 2008, Dr Milliken certified the plaintiff fit for QA duties with no bending and a 5-kilogram lifting restriction.  Thereafter, he certified her fit for normal working hours and shifts, noting that she needed to take care with any heavy lifting and must stick to manual handling standards.  He cleared her fit for normal duties on 18 February 2009.

82      Dr Tapsall first saw the plaintiff in April 2010.

83      In her notes, Dr Tapsall recorded unsuccessful attempts by her in May/June 2010 to get in contact with the defendant and Dr Milliken about the plaintiff’s 2008 injury.

84      Dr Tapsall recorded in her clinical note of 28 May 2010 that the plaintiff saw Ron Brooder, who stated unequivocally her main problem was the back injury she had at work eighteen months ago and that following the lift, she had developed secondary muscle spasm.

85      Dr Tapsall reported in July 2011, noting she had received a report from Dr Ronald Haig on 24 March 2011, where he stated he believed the plaintiff’s “presentation did not concur with the alleged level of disability and symptoms conveyed”.  He believed the plaintiff would be capable of performing her pre-injury disability occupation as a production worker on a full time basis.

86      Dr Tapsall noted she strongly disagreed with those comments.

87      Dr Tapsall noted in that report, that on 5 April 2011, the plaintiff attended her surgery, having seen Mr Haig recently and found his examination very distressing.  Dr Tapsall thought Mr Haig had clearly breached his standard of care and recommended she make a formal complaint.

88      The plaintiff then described to Dr Tapsall Mr Haig’s examination of her as being both different and extremely painful compared to her many previous examinations.  Whereas other specialists had consistently asked her to perform a straight leg raise by herself and to stop when it became painful, the plaintiff told Dr Tapsall that Mr Haig forcefully lifted her right leg beyond the onset of pain and despite her crying out in pain.  She told Dr Tapsall that since that examination, she continued to experience more pain and her analgesic medication did not seem to work as well.

89      Dr Tapsall provided a certificate following an examination on 6 August 2012:

“Mirela (sic) didn’t realise the pain in her lower back and down her right leg were an ongoing part of her initial injury until I questioned her closely regarding any history of back injury.  I was unaware she had a back injury in 2008 as she was treated by the company doctor, Dr Milliken.  Notes I subsequently obtained from him showed that he had diagnosed her low back pain and right sciatica and no investigations were performed and she was treated with physiotherapy.

Mirela (sic) required about six weeks off work.  As she wasn’t being paid during that time which she understood was because she was a casual worker, she returned to work but she’s had persistent low back pain and right sciatica since.  (She had been receiving an average pay of $1,500 weekly).

I understand that the back injury was notified to Uncle Toby’s insurers.  It was listed as a minor condition that they wished to cover the treatment for themselves.  Since the injury other staff had commented to her about her limping gait.  When she had a lifting incident at home on 28^th February 2010 she developed the secondary paraspinal muscle spasm which aggravated her injury and required her to cease work.  Her primary diagnosis is that the longstanding symptoms relating to her probable lumbosacral intervertebral disc injury and her right L5 radiculopathy which were clearly due to her initial work injury at work in 2008.

The delay in writing the certificate was partly because I had been unwell and another doctor seeing Mirela (sic) didn’t know of the previous injury and partly because I sought to obtain clarification from previous notes of diagnosis of Mirela’s (sic) back injury in 2008.

I then asked Mirela (sic) to attend Dr Brooder to assess her and he confirmed her persistent right sided low back associated with pain and sensory disturbance extending into her right leg are related to a probable L5 intervertebral disc injury and a right L5 radiculopathy.”

He noted her more recent pain in the right interscapular region into her neck is consistent with secondary muscle spasm involving the paraspinal muscles.  He has recommended she have an MRI of both her lumbosacral spine and cervical spine after her baby is born.  In the meantime her treatment remains conservative with rest, physiotherapy and analgesics.  Certification at that time was unfit for any duties.”

90      The plaintiff was certified unfit by Dr Tapsall for all duties from 14 March to 11 April 2012 and from 12 April 2012 to 10 May 2012.

91      In her most recent report of 3 November 2013, Dr Tapsall, diagnosed L4-5 intervertebral disc injury, right L5 radiculopathy, secondary paraspinal muscle spasm of the cervical, thoracic and lumbar spine and CRPS Type 2.

92      Dr Tapsall noted while the plaintiff had a fifty per cent reduction in pain following her infusions, she had no advice that the plaintiff would continue to be re-admitted for further treatment approximately three times a year.  She was unable to give a prognosis for the plaintiff based on the infusions, as she had very little experience with patients who were undergoing the procedure.

93      Should the infusions fail to give improvement, Dr Tapsall noted the plaintiff had already experienced almost all of the other treatment modalities and they had failed to improve her functional ability.  Dr Tapsall deferred to Dr Todhunter in this regard.

94      Dr Tapsall thought, on a permanent basis, the plaintiff had no capacity for pre injury work and no capacity for work generally.  She noted the plaintiff’s pain after an infusion got down to 4 or 5 out of 10 but gradually returned to 9 to 10 out of 10 and in those circumstances, the plaintiff suffered from severe anxiety and depression and had to reduce her level of exercise.

95      Further, the plaintiff had had to reduce many of her pre injury duties due to easy aggravation of her symptoms, even after infusions.  The plaintiff worried about her future and continually consciously had to apply the multiple strategies of coping with her chronic pain taught to her by her psychologist, Dr Sowden.  At times she was quite depressed and tearful and after five years post injury, was acutely aware it was very likely that she would not be cured and her future would continue to be greatly limited by her painful conditions.

96      Dr Tapsall noted, fortunately, the plaintiff had support at home.  The plaintiff had a very limited social life, visiting a few old friends.  Her sitting tolerance was more than twenty minutes and if there was an important invitation, the plaintiff needed to leave the function early due to fatigue and pain. 

97      Dr Tapsall concluded, in short, the plaintiff’s injuries had had a massive impact on her social and domestic life.

98      Mr John McMahon, neurosurgeon, wrote to Dr Tapsell in May 2010 thanking her for the referral. 

99      Mr McMahon was advised by the plaintiff of the incident and the second incident when her symptoms were exacerbated.  Her pain had been much worse since that time and she had also developed paraspinal pain involving the cervical and thoracic regions.

100     Mr McMahon noted the lumbar MRI scan revealed degeneration of L4-5 and L5-S1 and that, importantly, he could not detect any nerve root compression.

101     Mr McMahon thought it appeared that the longstanding symptoms were related to a probable lumbosacral intervertebral disc injury and a right L5 radiculopathy, and her more recent symptoms are related to secondary paraspinal muscle spasm.

102     Mr McMahon thought it important the plaintiff continue her existing medication regime and he referred her to Dr Todhunter for pain management.

103     On review in April 2011, Mr McMahon advised Dr Tapsell that the plaintiff had ongoing right paraspinal lumbar back pain with radiation to her right hip and posterior thigh.  Further, she had irritability of her right hip joint, which aggravated her right hip pain.

104     Mr McMahon advised he had organised further investigations, including a repeat lumbar MRI scan and right hip joint MRI scan as well as a bone scan.  He had also started the plaintiff on Endep and asked her to increase her dosage from 10 to 20 milligrams in a week if there had been no clinical response.

105     Dr Tapsell also referred the plaintiff to Dr Brooder, a consultant neurologist, in May 2010.

106     Dr Brooder noted the onset of back and right-sided sciatica after the incident and the second incident three months earlier, after which the plaintiff had developed particularly severe right-sided low back and leg pain, which was also associated with sharper pain through the right side of the lower back region with the later development of an aching pain up into her right interscapular region.

107     Dr Brooder thought that it appeared likely the plaintiff’s right-sided low back pain associated with pain and sensory disturbance extending into her right leg, were related to a probable L4-5 intervertebral disc injury and a right L5 radiculopathy.  He thought her more recent pain was consistent with secondary muscle spasm.  He suggested further investigations post partum and in the interim, conservative management with physiotherapy and regular analgesic medication.

108     Rod Farr from Healthfocus Physio wrote to Dr Brooder in March 2010 thanking him for the referral for treatment for a back strain.  Mr Farr thought the plaintiff’s lower limb symptoms were of an L5 distribution and her neck, upper back pain and right-sided headache were reproducible by neuromeningeal testing.

109     There was reduced dermatomal sensation, which suggested an intradiscal derangement, probably at L4-5, with sequestration into the canal which was going to be very difficult to manage given the plaintiff’s pregnancy.

110     Dr Todhunter, specialist in pain medicine, initially saw the plaintiff on 29 April 2011.

111     The plaintiff then gave a history of the incident and from that time having ongoing right lumbosacral pain radiating to the buttock, thigh, calf and foot. 

112     On initial examination, there was evidence of swelling of the right leg with the right foot being plethoric compared to the left but normal temperature.  There was some degree of pressure allodynia tenderness. 

113     On examination in September 2011, the plaintiff had ongoing swelling, colour alteration in terms of redness “–? plethora”, increased sweating and coldness compared with the left foot.  Intermittently, she had similar findings of swelling and discolouration, although no obvious temperature change.

114     Dr Todhunter diagnosed right leg neuropathic pain with elements of Chronic Regional Pain Syndrome (“CRPS”), which he noted was a more specific entity in terms of neuropathic pain when there was swelling, discolouration and sensitivity to touch and pressure, known as allodynia.  He noted those clinical findings may be intermittent.  The plaintiff still totally filled the requirements of that diagnosis.

115     Dr Todhunter noted the MRI scan revealed minor disc changes at the L4-5 and L5-S1 levels but with an annular tear at L5-S1 on the right.  There was no neurocompression.  He noted research had indicated that material leaking out of an intervertebral disc could cause an inflammatory reaction in the adjacent nerve root and he believed that that was the likely cause of the problem, given that there was no neurocompression. 

116     Dr Todhunter thought the plaintiff’s pain would continue indefinitely as there could be no expectation of any spontaneous improvement as any healing process would occur within the first three to six months after the initial injury and that was well outside that timeframe.  He thought there was no cure for the plaintiff’s condition, although medical treatment may alleviate the severity of her symptoms. 

117     Dr Todhunter thought the plaintiff’s condition had stabilised, in the sense she was very unlikely to spontaneously get either better or worse.  He noted she had had reasonable medical treatment in terms of medications, including intermittent Ketamine infusions, and she did not respond to an epidural nerve root injection of depo steroid.

118     Given the significant pain reduction, Dr Todhunter thought it would be reasonable to repeat the infusions intermittently over five days up to two to three times a year depending on the plaintiff’s response.  He thought it was appropriate for her to continue on her current medication regime.

119     Dr Todhunter thought the plaintiff had a partial permanent incapacity for work.  He noted she evidently was not totally incapacitated and was independent in activities of daily living.  However, he thought she was incapacitated in terms of returning to the type of work she was doing, which was heavy manual work. 

120     Dr Todhunter considered it in the plaintiff’s best interests to re-enter the workforce if possible.  That would require retraining into a sedentary job then finding work.  He believed that this current situation would remain the case indefinitely in the future in terms of the partial incapacity to undertake work.

121     Dr Todhunter concluded the Ketamine infusions reduced the plaintiff’s spontaneous pain but did not really reduce very much the increased pain she got with activity and hence the interference with her life continued, even though her spontaneous pain levels fell.  He noted her self report of impact on social and domestic activities was severe.

Investigations

122     X‑rays of the cervical and lumbosacral spine organised in August 2010 by Dr Tapsell were normal. 

123     Dr Tapsell organised an MRI scan of the lumbar spine on 23 September 2010.  It was reported there was disc degeneration at L4-5 and L5-S1 and a minor diffuse annular bulge at L4-5 with right-sided bias.  There was no high grade spinal canal stenosis or nerve root compromise identified.

124     Mr McMahon organised an MRI scan of the plaintiff’s lumbar spine on 3 June 2011.  It was reported there were L4-5 and L5-S1 right paracentral incomplete posterior annual fissures without focal disc protrusion and no neural compression lesion. 

125     It was reported a right hip MRI scan gave no cause of right hip pain.

Medico-legal examiners

126     Mr Isbister, orthopaedic surgeon, examined the plaintiff in March 2011. 

127     The plaintiff told him of the incident and her inability to return to normal duties after that.  Following the second incident in February 2010, there was a recurrence of her previous symptoms.

128     On examination, palpation of the lumbar spine posteriorly revealed tenderness.  There was no specific muscle spasm.  There was restriction of lumbar movement.

129     Mr Isbister diagnosed lumbar disc strain with irritation of the S1 nerve root.  He thought pre injury duties were currently severely restricted and he believed the plaintiff would be able to return to a more sedentary occupation carrying out clerical activities provided she could change her posture.  He thought her condition was not then stable and it was not possible to predict what she would be capable of performing.  He thought future employment capacity would depend on the result of further treatment. 

130     Mr Isbister considered the plaintiff’s pain and suffering had been and is still being suffered by her as a result of the injuries and subsequent pain.  The prognosis could not then be fully determined, although it was likely she would continue suffering symptoms for at least another year.  He noted the MRI scan showed the already degenerative changes in the lower two lumbar levels and they may further develop into arthritis in the future but a time could not be put on it.

131     Mr Steven Leitl, orthopaedic surgeon, examined the plaintiff on behalf of the personal accident income insurer in September 2010. 

132     The plaintiff told him of the incident and thereafter working 8 or 12-hour shifts, five to six days a week, with no treatment except for occasional Panadol or Panadeine, but having continuing back pain and right leg pain that was almost constant. 

133     There was then the second incident, when the plaintiff went to lift her mother off the floor and she felt excruciating pain in the same site in the lower back and increased pain in the right leg.  Within a couple of hours, she developed pain affecting the right half of her body above the previous lower back pain.

134     Mr Leitl noted the plaintiff had originally planned to stop work at 38 weeks and had her baby on 15 June 2010.

135     On examination, the plaintiff had no limp when walking.  There was variable midline tenderness of the thoracic spine and a normal lumbar lordosis.  There was mild tenderness in the midline and no evidence of muscle guarding or tenderness.  The range of motion in flexion was half of the expected range but extension was full. 

136     There was decreased straight leg raising on the right.  Testing power revealed jerky weakness of the muscle groups.  Testing sensation revealed widespread patchy decreased sensation in the right lower limb, not corresponding to any anatomical distribution.

137     Mr Leitl diagnosed persisting dysfunction of the lumbar spine with widespread referred symptoms but no evidence of radiculopathy.  He also diagnosed a Chronic Pain Syndrome (“CPS”).

138     Mr Leitl noted there was the injury in the incident but not severe enough to prevent the plaintiff from ultimately working for twelve months, until the second incident, when she suffered a further back injury, but with more widespread radiation of pain to her right upper body which was difficult to explain on any other ground except for the basis of the CPS.

139     Mr Leitl found there were minimal signs of lower back dysfunction and he considered that as a result of the second incident, the plaintiff sustained a soft tissue back strain from which she had now recovered and he considered her current condition was due to the original workplace back injury. 

140     Mr Leitl thought the plaintiff could now return to her employment as she was able to work for twelve months full time with the previous back injury.  He noted the MRI scan excluded any significant neurocompressive lesion and the findings were out of keeping with the plaintiff’s claimed level of capacity.

141     Mr Leitl considered the plaintiff was not totally incapacitated presently and that she had recovered sufficiently to enable a return to employment which she was doing pre February 2010.  He concluded her ongoing complaints of back pains were due to the original injury and were the sole reason for her partial incapacity.

142     Mr Kelman, orthopaedic surgeon, examined the plaintiff in September 2012.  The plaintiff then told him of the incident and her ability to keep working until February 2010, when there was an exacerbation, causing an aggravation of her previous back pain.

143     On examination, there was no evidence of illness behaviour.  The plaintiff walked with an abnormal gait and limped on the right side.  There was reduced lumbar lordosis and restriction of movement.  Right leg straight leg raising was to 20 degrees and to the left, 90 degrees.  There was weakness in plantar flexion and extension of the right ankle and there was altered sensation throughout the right lower limb with diminished ankle reflex on the right compared to the left.  The right lower limb was colder to touch than the left.  No other trophic signs were observed on examination.

144     Mr Kelman diagnosed lumbar spine L4-5 and L5-S1 disc injury with annular tears and disc bulges without neural compromise and CRPS of the right lower limb. 

145     Mr Kelman thought the plaintiff was unable to carry out activities such as bending, lifting, kneeling, pushing and pulling, repetitive movements, overhead activities, prolonged sitting or walking, negotiating stairs or inclines or using steps or ladders.  He considered these restrictions were of a long-term nature, although they may not exist permanently.  He thought that permanently, the plaintiff did not have the capacity to perform her pre injury duties and at the present time, she was not able to carry out any other work activities in the long term. 

146     Mr Kelman noted the plaintiff was restricted with respect to domestic and recreational activities, with her mother doing a lot of them.  She was also restricted in social activities on a permanent basis.

147     Mr Kelman noted the plaintiff had pain in the lumbar spine extending to the right leg which causes considerable distress and anxiety and required pharmacological and psychological treatment.  Her gait may be altered as a result of the condition.

148     Mr Kelman thought the plaintiff’s condition was likely to continue in the long term, and in the foreseeable future, the pain may have diminished to a certain degree but it was unlikely to resolve completely and the plaintiff would   accommodate to a chronic pain problem.  He thought the development of arthritis was unlikely.

149     Mr David Brownbill, neurosurgeon, examined the plaintiff in November 2013.

150     The plaintiff told him of the incident and a return to reduced hours and duties thereafter and pain not resolving.

151     The plaintiff told Mr Brownbill in 2010 that when she was five months pregnant, she had helped lift her mother from the floor and the plaintiff’s back pain increased severely again.  Back and leg pain had continued.

152     The plaintiff described right-sided pain ever present since the incident.  There was right leg pain and pins and needles in the back of the right leg present most of the time and associated with numbness occasionally.

153     Mr Brownbill noted the plaintiff was straightforward on examination without embellishment.  She walked well.  Flexion and extension were reduced to half by pain.  Movements were full in other directions with discomfort.  There was slight tenderness in the upper lumbar spine. 

154     There were no abnormalities of colour, temperature, texture or sweating.  There was a marked giving way of weakness of the muscle groups of the right leg.  Sensation to touch was slightly decreased over the outside of the right thigh and lower leg. 

155     Mr Brownbill concluded examination had shown restriction of thoracolumbar spinal movements, giving way weakness of the muscle groups of the right lower limb, particularly knee extension and foot dorsiflexion and plantar flexion which was not consistent with the plaintiff’s ability to walk normally and on her heels and on her toes. 

156     Mr Brownbill noted investigations had shown minor degenerative changes at the lower two intervertebral disc levels, with minor bulging at the L4-5. 

157     Mr Brownbill considered, on probability, the plaintiff, in the incident, sustained an aggravation of the pre existing asymptomatic degenerative changes, giving rise to local pain and referred leg pain.  The increase in back pain when lifting her mother represented a further aggravation of the previously aggravated lumbar spine degenerative changes. 

158     Mr Brownbill noted the plaintiff’s demeanour and responses and examination findings suggested the presence of a non organic reaction component.  However, he did not think that was conscious and was rather an emotional reaction to ongoing pain.

159     Mr Brownbill thought it prudent for the plaintiff to avoid heavy lifting, full spinal mobility, repeated bending or prolonged sitting or standing.  From a neurological point of view, he considered she would be capable of attempting a return to work program in a graded fashion that avoided those actions.  He thought analgesics and anti-inflammatories were appropriate, as was pain management clinic treatment.

160     Mr Brownbill considered the plaintiff had suffered soft tissue injuries to the structures about the lumbar spine with probable aggravation of pre-existing asymptomatic degenerative changes but without neurological damage as a result of the incident.  He thought her condition had stabilised.

161     Mr Brownbill thought the plaintiff was likely to be restricted in relation to employment or activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting to a moderate to marked degree.  He considered her incapacity would continue.  He did not think she could perform her full pre injury duties, and that was permanent. 

162     From a physical neurosurgical point of view, Mr Brownbill thought the plaintiff had the capacity to attempt suitable employment, avoiding the activity restrictions.  This attempt should be done in a graded fashion, as Mr Jones suggested. 

163     As a consequence of her physical impairment, Mr Brownbill considered the plaintiff was likely to be restricted in relation to social, domestic and recreational activities to a moderate degree permanently.  In his view, some back pain may continue in a fluctuating manner indefinitely.  He did not think the plaintiff was at an increased risk of developing arthritis and he did not consider she would require surgery in the future.

Vocational evidence

164     Leonie Schneider, vocational assessor, provided a vocational assessment dated 10 February 2014, having interviewed the plaintiff.

165     It is apparent from Dr Yong’s most recent report that Ms Schneider concluded the plaintiff had no capacity for suitable employment.  A heavily edited copy of her report was tendered after discussion between counsel.  Ms Schneider’s conclusion and the basis thereof were, for the main part, deleted.

The Defendant’s medical evidence 

166     There were a number of attendances with Dr Milliken after the incident.  On 10 November 2008, the plaintiff reported she felt a sharp pain lifting a hopper.  She was prescribed Panadeine Forte.

167     There was a further examination on 13 November 2008, when it was noted the plaintiff was working at home for up to four hours a day, getting some relief from physiotherapy.  On 19 November 2008, it was noted she continued to improve, pain still present but not as strong, pain at 5, not 6 to 7 out of 10 like the last week.

168     On 5 December 2008, it was noted the plaintiff is improving gradually with severity of pain varying using a cross trainer, 3 to 4 out of 10 pain.  On examination, there was still restricted tenderness in the back and still pain limiting flexion. 

169     On 19 December 2008, the plaintiff was now working four days a week –

“Coped with duties at present, currently on restriction, not lifting more than 8 kilograms.  This has improved.  Doing exercises at home.  Normal range of lumbar movement.  No tenderness on examination.”

170     On 18 February 2009, Dr Milliken noted that since the last review, the plaintiff had been well, working full time without any concerns:

“Aching generally, nothing major.  Is now requesting clearance.”

171     On 27 April 2010, Dr Milliken noted:

“Having no problems until 28/2/2010 helping her mother off the floor after a seizure.  Felt a sparkle like down her spine and leg.  This became very much more intense over the next few days.  Rang work, told she would need a clearance.  On examination walking with a limp in obvious pain.” 

172     The plaintiff saw Dr Deb on 3 November 2008 following the incident.

173     There are examinations for unrelated conditions throughout 2009 with prescription of Panadeine Forte at times.

174     The plaintiff saw Dr Brewer on 3 March 2010, when she noted:

“Pulled muscles in back, lumbar, thoracic and cervical on right.  Mother is epileptic, had a seizure in the kitchen on Sunday; Mirella (sic) tried to lift her off the floor and felt back muscles go.  Previous six weeks off work two years ago for sciatica (was WC).  Has some paresthesia down leg.  Afraid this will be the same, however neck is much of a problem or more as the low back so a more muscular this time.  Has tolerated Panadeine Forte in the past.  ” 

175     On 6 March 2010, Dr Bruce noted the plaintiff –

“… pulled muscles.  Numb on the right leg and back.  Headaches, physio would be fine.  Not able to work.”

176     Dr Bruce noted on 10 March 2010 that back pain continued:

“Work will not have her back until she is 100 per cent.” 

177     On 19 April 2010, Dr Tapsell noted:

“… recurring pain in the lower back since … [the February 2008 incident] with occasional right-sided sciatica.  Would mainly occur if standing in the one spot for too long.  The pain is now arising from the same area but is much more severe.  Constant sciatic pain and pain up the spine to the cervical spine.  Could be aggravation of original injury.”

Medico-legal examiners

178     The plaintiff was examined by Michael Shannon, orthopaedic surgeon, in October 2011. 

179     The plaintiff told him of the incident injury and thereafter working more or less normal hours but still having pain, until the second incident, when she suffered a recurrence of sharp pain in the low back, radiating down the leg and up the spine to the neck. 

180     On examination, the plaintiff had moderate restriction of thoracolumbar flexion, extension and mild restriction of lateral flexion but with significant spasm.  Straight leg raising was to 30 degrees on the right and 60 degrees on the left, improving to 80 degrees in the sitting position.  There was no muscle wasting.  Pelvic rotation reproduced the plaintiff’s pain, which suggested a non organic component.

181     Mr Shannon had available the September 2010 MRI scan.

182     Mr Shannon thought the plaintiff was suffering from mechanical back pain associated with lumbar disc degeneration.  He noted the history of low back pain in the incident.  If the original injury had substantially subsided, he thought it would still be a contributing factor to the subsequent recurrence of pain in the second incident.  Therefore, the plaintiff’s current condition under those circumstances would at least, in part, be work related.

183     Mr Shannon noted that although the plaintiff had right sciatic symptoms, there were some non organic features to her presentation but on the other hand, she did appear to have some significant spasm on lateral flexion, so essentially, she was suffering from mechanical low back pain with some degree of non organic component and possibly developing a pain syndrome.  He thought there was a genuine component to her presentation and she was not fit for factory work.

184     At that stage, Mr Shannon thought the plaintiff was suffering from mechanical back pain with symptoms, but no definite signs of radiculopathy.  He noted it was difficult to predict her incapacity but she still seemed to have spasm.  He then thought the plaintiff had a limited capacity for work involving significant bending, lifting, prolonged sitting or standing.  

185     Mr Jones, orthopaedic surgeon, first saw the plaintiff in December 2012.

186     The plaintiff told him that after the incident, she continued to have back pain but needed to work.  There was then the second incident, where she described experiencing severe back pain, as well as pain extending down the back of her right leg to her heel.

187     On examination, the plaintiff demonstrated her pain at L5.  There was flexion to a third of normal without pain.  There was limitation of extension, although the plaintiff appeared to be able to sit with her hips flexed and knees fully extended.  There was an inappropriate response to straight leg raising on the right.

188     Skin colour and texture in both limbs appeared normal.

189     Mr Jones did not mention the second incident in his report.  He then was unable to comment on any psychological reaction.

190     Mr Jones thought the plaintiff’s back condition restricted her ability to bend repeatedly or to engage in heavy lifting or carrying.  Given the MRI scan pathology, he considered it was likely that her partial incapacity would persist long term to a varying degree, depending on the demands she made on her lumbar spine.  He noted the requirement for analgesic medication to the level indicated appeared somewhat disproportionate to the pathology affecting the plaintiff’s low back. 

191     Mr Jones was forwarded a list of the suggested jobs: receptionist, tourism and travel adviser and personal assistant.  He believed, in spite of her back symptoms, the plaintiff had the capacity to work in those occupations.  The only reservation he had would be in regard to the quantity of medication she was having, which may impact on her ability to work. 

192     Provided the personal assistant job did not involve physical work, he believed the plaintiff would be capable of doing it.  He thought she would be able to do jobs of receptionist, office administrator, travel consultant and school administrative assistant/secretary.  He was uncertain about the impact of medication on her ability to do those jobs.

193     Overall, Mr Jones found it difficult to resolve the apparent discrepancy between the plaintiff’s history of virtually being unable to undertake any physical activity whatsoever, including looking after her two-and-a-half-year-old, with the symptoms of pain described by her and the level of medication being taken by her.

194     The plaintiff was re-examined by Mr Jones in December 2013 and since that time, had had infusions in April and November.

195     The plaintiff was noted to walk with a limp.  There was no evidence of muscle wasting.  Sensory testing revealed a subjective diminution of sensation to pinprick involving the skin over the whole extent of the right lower limb to the level of her groin crease.  The paresthesia was particularly noticed in the posterior upper thigh, calf and sole of the right foot.  Skin colour and texture appeared normal.  On the right side, the plaintiff reported an exacerbation of back pain with the knee flexed at 90 degrees.

196     Mr Jones thought the plaintiff’s presentation was one of lumbar back pain and stiffness with some neurological symptoms involving her right leg.  He could find no convincing evidence she was suffering from CRPS.

197     Mr Jones thought the distribution of the pain described by the plaintiff, her level of pain and her neurological symptoms of diffuse right leg paresthesia suggested there to be some component of functional symptoms in her presentation.  He was not able to comment on psychological reaction.

198     Mr Jones repeated his earlier views as to employment capacity and noted he believed the plaintiff had the capacity to undertake restricted part time work of a physical nature, provided no lifting above 5 kilograms or repeated bending was required.  He believed she would be able to do sedentary clerical type work provided she could move about.

199     Dr Dominic Yong, specialist occupational physician, examined the plaintiff in December 2013.

200     The plaintiff told him of the incident and then continuing to work her required duties and hours for the following twelve months with ongoing pain and cessation of physiotherapy but having to take paracetamol and occasional days off.

201     The plaintiff told him of the second incident, which resulted in back and right leg pain increasing.  She told him that she had no contact from the defendant but would consider returning back to work for the factory 2 job if she was offered duties, and noted that she was not actively job seeking at that stage.

202     On examination, the plaintiff walked with a slight limp, favouring her right leg.  There was tenderness superficially in the midline of the low back into the right side in a widespread region.  There was restricted movement.  Straight leg raise was 10 degrees on the right and 50 degrees on the left.  Sensation was reduced over the whole of the right leg globally and there was reduction in the power of the whole of the right leg in that regard.  The plaintiff could straight leg raise to 70 degrees sitting on the end of the bed. 

203     Dr Yong concluded that the plaintiff was a woman who had a discal injury to her low back which had been complicated by a CPS involving her back and right leg and there were now present Waddell signs consistent with magnification of her symptoms.  Non organic signs included distracted straight leg raise was significantly more than when being formally tested, superficial and diffuse non anatomical tenderness, global sensory loss which deviated from the accepted neuro anatomy and global weakness which deviated from the accepted neuro anatomy.

204     Dr Yong thought, given the current diagnosis, functional capacity and current requirement to participate in an activity based recovery program, the plaintiff had a current capacity for work within the following restrictions: avoiding repeated and bending and twisting of the back; varying posture regularly between sitting, standing and walking; and avoiding lifting more than 5 kilograms repeatedly. 

205     Given her time out of the workforce, Dr Yong thought a graduated return to work program would be indicated involving initial reduced hours and gradually increasing back to her pre-injury level.  His initial recommendation was 4-hour shifts for four days a week, increasing back to pre-injury hours over two to three months.

206     In a supplementary report dated 28 January 2014, Dr Yong set out that he thought the plaintiff, on a graduated return as previously recommended, was fit for work as a receptionist, tourism and travel adviser and personal assistant, office based tasks with minimal manual handling.  Receptionist/office administrator was likely to comply with recommended work restrictions, thus would be reasonable, but it was described as full time and he made the comments about a graduated return.

207     Dr Yong had a similar view as to travel consultant, Flight Centre work, administrative secretary, customer service officer, receptionist and administration officer. 

208     Dr Yong concluded the plaintiff required participation in a graduated activity-based recovery program requiring the provision of a range of active physical therapy modalities.  Given the length of time of her condition, that should be generally self managed.  Thus, she should do a daily walking program, regular home exercise and be as active as possible within the limits of her pain.

209     Dr Yong provided a further supplementary report in February 2014, having been provided with the reports of Mr Brownbill and Mr Jones and also the assessment of Australian Vocational Link dated 14 February 2014.

210     Dr Yong noted that the vocational assessment concluding the plaintiff was unfit for all work differed from his opinion and those of the other medico-legal examiners that the plaintiff had a current work capacity.  As no new medical opinion was available, Dr Yong did not change his opinion.

211     Dr John Silver, occupational physician, examined the plaintiff on behalf of One Path in October 2011.

212     The plaintiff told him of the incident and her return to full time unrestricted work and the plaintiff’s advice she did not know she had a serious injury until the second incident, when she reinjured her back at home.

213     On examination, the plaintiff complained of lumbosacral pain extending throughout the entire right lower limb globally, like wearing a painful stocking involving the entire lower limb and buttock as well (denied by the plaintiff).  The plaintiff also described to him, as she agreed, the pain being like a hot needle going all the way up and down.

214     On examination, Dr Silver noted the plaintiff was, although garrulous and rationalising, an uncooperative historian.  She sat comfortably slouched in the consulting room chair, although she leant to her left side.  She walked slowly and sighed and grimaced when she removed her tights. 

215     There was no guarding, spasm or tightness in the paraspinal muscles.  There was marked limitation of extension and flexion of the lumbar spine.  Straight leg raising was free to 90 degrees on the left but the plaintiff yelped in pain in her back at about 40 degrees but she was able to sit up and in fact lean forward with both legs extended on the examination couch, demonstrating somewhat in excess of 90 degrees of lumbar flexion.

216     Dr Silver thought the plaintiff’s presentation currently was not pathologically or anatomically based, then being pervaded with overt lack of cooperation with the history and with dramatisation and inconsistent findings on physical examination, indicating a non organic basis.  He noted there were significant psychosocial issues, including ongoing litigation that, in itself, was a significant motivator to maintain the sick role. 

217     Dr Silver commented it was significant that neither Mr Leitl nor Dr Haig could find any objective evidence of a radiculopathy when assessed in 2010 and 2011.  He noted the radiological reports were consistent with that, describing only general changes, common in the community.

218     Dr Silver thought the plaintiff may well have had some degree of non specific low back pain but there was no evidence of a significant lumbar spinal pathology or a right-sided radiculopathy.  He thought her presentation was considered to be grossly and deliberately embellished, if not feigned, and there was no indication that she would be incapable of performing any ergonomically sound physical activity to which she put her mind. 

219     Despite her complaints, the plaintiff demonstrated no convincing clinical features of being incapacitated.  Dr Silver thought she was physically capable of performing any ergonomically sound physical activity within contemporary OH & S ergonomic guidelines to which she put her mind.

220     Dr Silver thought there was no evidence on investigation of canal stenosis or neurological compromise, nor of any arthropathy in the lumbar spine, pelvis or hips.  The diagnosis was of a non organically based pain syndrome that is considered to be either grossly deliberately embellished or possibly feigned. 

221     Dr Silver noted that in Dr Tapsell’s report of 17 July 2007, her conclusions appeared to be based on an unsubstantiated history alone.  He thought the high level of narcotics was dangerous, particularly in a general practitioner’s hands.  In his view, the ongoing litigation was a significant motivator for her to remain in the sick role.  He considered she could work on a full time basis if so motivated and there was no medical reason why she could not go back to full time hours.

222     The plaintiff was examined by psychiatrist, Dr Sheehan, on behalf of MLC in April 2012.

223     The plaintiff told him of the incident, a return to work on a full time basis in a different section and then the second incident in February 2010.  She stated that she had been off work since then and had been told she was not allowed to return to work until she was one hundred per cent.

224     On mental state examination, the plaintiff had a slow antalgic gait and sat stiffly and was intermittently tearful and at times depressed and agitated.  She was preoccupied and described her difficulty coping with her chronic pain symptoms.  She described depressive mood, irritability, moderate anxiety, severe sleep disturbance and an underlying demoralisation and lowered self confidence and esteem.

225     Dr Sheehan noted Mr Leitl’s diagnosis and concluded from a psychiatric perspective, the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate severity, secondary to a spinal injury and CPS.  In that context, she presented as having no current work capacity and required ongoing psychiatric and psychological symptoms, and he suggested she be referred to a consultant psychiatrist.  He noted the Endep of 50 milligrams was not therapeutical for her depressive symptoms. 

226     Dr Sheehan thought, from a psychiatric perspective alone, the plaintiff  presented as having no work capacity for either full time or part time duties.  He though there was no typical duration of incapacity for her Adjustment Disorder, and in light of the fact she was experiencing chronic pain symptoms and had been diagnosed as suffering from a CPS, it was probable she would continue to experience moderate to severe psychological symptoms secondary to her chronic pain and restrictions in her physical capacity and lifestyle.  He thought she would require ongoing psychiatric treatment and support, and a prognosis for return to work appeared extremely guarded at that time.

227     Consultant neurosurgeon, Associate Professor Khurana, examined the plaintiff in May 2012.

228     There was reduced sensation subjectively in L4 greater than the L5 dermatome, as well the S1 dermatome involving the sole of the foot.  He noted, interestingly, although the plaintiff reported to him that her foot felt and looked swollen to her, measurement of ankle circumferences bilaterally was equal at 26.5 centimetres.  He did notice a 1.5-centimetre difference at the junction of the lower end and mid thigh, with the right greater than the left.  Straight leg raising was limited on the right to 10 to 20 degrees with generation of low back pain and right sciatica.

229     Mr Khurana noted the plaintiff sustained lower back pain and right sciatica during the incident with slow but gradual improvement in her symptomatology until February 2010 after the second incident, which resulted in re‑injury and work cessation.

230     Mr Khurana thought the symptoms were substantially in excess of the signs, with exception of the observed pain features.  The symptoms were also greatly in excess of the radiological findings and not explained by those findings. 

231     Mr Khurana diagnosed mechanical low back pain with probably substantial psychological or functional overlay.  He noted the response to treatment had been suboptimal, including pharmacotherapy, that had been administered thus far which he thought would be in keeping with the factitious or functional overlay given the absence of the hard clinical signs and the absence of any hard radiological findings.

232     Mr Khurana did not think any further investigation was warranted.  He did, however, believe it very important to get the plaintiff back into the workforce if possible.  To try and break the pain cycle, he recommended a three-month trial of weekly physiotherapy, hydrotherapy and acupuncture, and also the involvement of a pain psychologist. 

233     Mr Khurana thought the factors that may be contributing to recovery were perhaps psychological and perhaps partly motivated by financial or interpersonal gain, as he was not able to explain the degree of symptomatology and persistence of finding, given the minimal radiological findings and physical findings.  He noted, interestingly, when he asked the plaintiff specifically if she would like to return to work, she said she would love to get back to some sort of work.

234     Dr Tapsall referred to a report from Mr Haig which was relied upon by the defendant.

Claim documentation

235     In the Claim Form completed by the plaintiff in February 2008, she set out that she suffered injury cleaning the feed hopper on the said date and that her employer contact was Samantha Ridley.  Earning details were not included. 

Overview

236     I accept that the plaintiff suffered a compensable injury to her lumbar spine in the incident.

237     I am mindful of the fact that the defendant accepted liability for the payment of medical expenses and continues to fund the Ketamine infusions.  The claim pursuant to s98C was also accepted.

238     This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[25] such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

[25][2006] VSCA 171

239     No such explanation has been forthcoming in the present case.

240     Counsel for the defendant’s principal submission, enunciated in closing addresses, was that the injury on the second date was an aggravation injury and, in those circumstances, the Court must assess separately the consequences of that injury and the incident injury.[26]

[26]T82

241     Counsel for the defendant submitted that a Petkovski v Galletti[27] approach should be taken in relation to the second incident and a comparison made of the plaintiff’s condition prior thereto relating to the compensable injury with her condition subsequent thereto following the unrelated injury.

[27] [1994] 1 VR 436; T82

242     The principles enunciated by the Court of Appeal in Petkovski v Galletti[28] were recently followed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[29]  In Filipowicz, an aggravation case, Kyrou AJA held the trial judge took the wrong approach by accumulating two separate injuries.  His Honour stated that the aggravating injury had to satisfy the requirements of a serious injury in its own right rather than in combination with the original injury.[30]

[28]Supra

[29][2012] VSCA 60

[30](Supra) at paragraph [35]

243     Counsel for the plaintiff described the approach suggested by counsel for the defendant in the present case as a “most extremely novel legal argument” in circumstances where there was a supervening injury.[31]

[31]T115

244     In my view, the principles enunciated by the Court of Appeal in Petkovski and recently followed in Filipowicz, do not apply in circumstances where there is an original compensable injury and a subsequent supervening event.  They apply where there is a pre-existing condition and a subsequent compensable injury.  In those circumstances, the “before and after analysis” is then required.

245     In reply to closing addresses in the present case, counsel for the defendant also relied on the decision of the Court of Appeal in Altona Bus Lines v Lococo.[32]  In that case, the plaintiff bus driver originally injured his back at work in July 1995.  After an absence from work, he resumed full-time duties.  He put up with his pain in order to remain in employment.  He then suffered a further back injury at work in late 1998, after which he returned to work on light duties but did not resume bus driving.

[32][2002] VSCA 159

246     The s134AB application in relation to the 1995 incident was successful.

247     On appeal, Buchanan J noted “it [was] a pity”[33] the trial judge did not make an assessment of the degree of impairment the plaintiff suffered before the 1998 injury and was likely to have sustained even if that had not occurred.  Further, the trial judge did not expressly evaluate the significance of the ultimate impairment suffered by the respondent by separately assessing the impairment that resulted from each incident.

[33]Altona Bus Lines v Lococo (supra) at paragraph [9]

248     However, the Court held when the reasons were read as a whole, it appeared the trial judge concluded the effect of the 1995 compensable injury considered alone was to produce a serious long term impairment of a body function “albeit he expressed that conclusion in a somewhat elliptical manner.”[34]

[34]Altona Bus Lines v Lococo (supra) at paragraph [10]

249     I accept that the injuries in the present case have to be assessed separately and I am not permitted to take a cumulative approach or aggregate the two injuries.[35]

[35]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511

250     I accept that in the incident, the plaintiff suffered an L4-5 intervertebral discal injury and a right L5 radiculopathy as described by Dr Brooder and Mr McMahon, who both treated her in 2010.  They agreed that the pain following the incident on the second date was consistent with secondary paraspinal muscle spasm.

251     I reject the submission by counsel for the defendant that there is no medical evidence that the injury on the second date is a continuation of the incident injury.[36]

[36]T83

252     To the contrary, any medical opinion which addressed this issue was to the effect that the incident continues to contribute to the plaintiff’s present lumbar condition.

253     Dr Tapsall noted on 28 May 2010, that the plaintiff saw Dr Brooder, who stated unequivocally her main problem was her back injury she had had at work and that following the lift on the second date, she had developed secondary paraspinal muscle spasm.

254     In Mr Shannon’s view, if the incident injury had substantially subsided, it would still be a contributing factor to the subsequent recurrence of pain in the second incident.  Therefore, the plaintiff’s current condition under those circumstances would at least, in part, be work related.

255     Having been given a history of constant back pain and no treatment save for the occasional Panadol since the incident, Mr Leitl took a slightly different view, finding that the plaintiff had recovered from the injury suffered on the second date and her problems were attributable to the incident.

256     Dr Todhunter did not comment on this issue as he was not told of the injury on the second date. 

257     Although the plaintiff told Mr Jones, he did not comment on the issue in his report, nor did Dr Jong or Mr Brownbill.

258     Having been told of the incident on the said date and also that which occurred on the second date, Mr Isbister simply commented that he considered the plaintiff’s pain and suffering had been, and is still being suffered by her as a result of the injuries and subsequent pain.

259     In my view, it cannot be inferred that Dr Milliken’s failure to provide the plaintiff with a certificate following the second date was because he did not think that injury was a continuation of the incident injury.[37]  There is simply no evidence in this regard.  Further, Dr Milliken emailed Ms Ridley, as his clinical notes indicated.  Despite repeated requests by both the plaintiff and Dr Tapsall, this email has not been produced, nor was Dr Tapsall provided with details of the incident injury she sought from the defendant and Dr Milliken.[38]

[37]T92

[38]T77, 117

260     I do not accept the plaintiff also took this view by submitting a claim pursuant to her income protection policy rather than under WorkCover, particularly given Ms Ridley’s advice in relation to making a claim relating to the incident.

261     I am satisfied the 2008 incident continues to materially contribute to the plaintiff’s current lumbar condition.

262     As Ashley JA said in Grech v Orica Australia Pty Ltd,[39] a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.

[39]Supra

263     Provided that the plaintiff establishes that the subject compensable injury in 2008 materially contributes to the impairment and its consequences, and will continue to do so permanently, then the role of the other injuries, namely the incident on the second date, does not preclude a court concluding that there was an appropriate causal link between the compensable injury on the one hand, and consequences relied upon on the other.

264     Whilst there is clearly a worsening in the plaintiff’s lumbar condition following the second date, I accept that prior thereto, she was continuing to experience back problems from the incident injury.

265     The incident injury was significant.  The plaintiff explained in re-examination that she was required to lift a 4 square foot stainless steel box weighing 10 to 15 kilograms and carry it up and down two flights of stairs.[40]  The plaintiff’s condition in the months immediately thereafter was described by Dr Milliken in certificates as “acute” or “severe” back pain.  He also noted right-sided sciatica on examination on 19 November and 5 December 2008.

[40]T76

266     Although the plaintiff ultimately resumed full time duties in February 2009, she never returned to the heavier job in factory 3 and continued very light work in factory 2 until the second date.  I accept that at times the plaintiff had difficulty performing her work duties due to back pain but she had to persist for financial reasons.  Whilst she worked overtime when it was available, on occasion, the plaintiff took sick leave because of problems with her back.

267     I accept the plaintiff did not seek weekly payments following the incident, having been advised by Ms Ridley that her entitlement was limited to medical expenses.  This situation was confirmed by Dr Tapsall in her comments on the Certificate of Capacity following examination on 6 August 2010.

268     The plaintiff continued to require over-the-counter medication for pain relief between the two incidents.

269     There may have been improvement in the plaintiff’s lumbar condition at various times between the two incidents; however, her condition never resolved, nor had there been substantial recovery, as submitted by counsel for the defendant.[41]

[41]T85

270     I accept that there was a significant aggravation of the plaintiff’s lumbar condition on the second date.  The plaintiff freely acknowledged this was the case.

271     Thereafter, the plaintiff has been unable to return to work.  She has required more significant medication and treatment.  Her restrictions have increased and her level of back movement has further reduced.

272     Whilst this may be the case, I am not required to compare the plaintiff’s condition pre and post the second date.  However, I must be satisfied that there is at present a material contribution by the incident to the plaintiff’s present condition.  I am satisfied this is the case, taking into account both the plaintiff’s ongoing symptoms from the said date until the second date and also the medical opinion in this regard.

273     Counsel for the defendant conceded she would not be making a submission in these terms if the evidence was that because of the background of the incident injury it led to the ultimate consequences.[42]

[42]T87

274     Having found the incident injury materially contributes to the plaintiff’s present lumbar condition, the next issue is whether that condition is organically based.

275     Counsel for the defendant submitted the plaintiff’s lumbar condition does not have a substantial organic basis.

276     In Meadows v Lichmore Pty Ltd,[43] Maxwell P set out the two-step manner in which the Court ought to approach this issue:

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[43][2013] VSCA 201 at paragraphs [21]-[22]

277     Taking into account all the medical evidence, whilst some examiners noted a functional component in the plaintiff’s presentation, I am satisfied that her lumbar condition has a substantial organic basis relating to aggravation of degenerative changes in the lumbar spine at L4-5.  Further, there is limited support for the diagnosis of CRPS from Dr Todhunter, Mr Kelman and also Dr Tapsall.

278     As previously noted, in 2010, treating neurologists, Mr McMahon and Dr Brooder, thought the plaintiff’s condition related to a probable lumbosacral intervertebral disc injury and a right L5 radiculopathy, and her more recent symptoms are related to secondary paraspinal muscle spasm.  In 2013, Dr Tapsell shared a very similar view, also diagnosing CRPS Type 2.

279     Mr Isbister, in March 2011, diagnosed lumbar disc strain with irritation of the S1 nerve root.  Mr Leitl diagnosed persisting dysfunction of the lumbar spine with widespread referred symptoms but no evidence of radiculopathy.  He also diagnosed a CPS.

280     Mr Kelman, in 2012, diagnosed a disc injury at L4-5 and L5-S1 with annular tears and bulges without neural compromise and CRPS of the lower right limb.  He thought there was no evidence of illness behaviour.

281     In November 2013, Mr Brownbill thought the plaintiff had suffered soft tissue injuries to the lumbar spine with probable aggravation of pre-existing asymptomatic degenerative change.  In his view, there was a non organic reaction component that was not conscious and was rather an emotional response to ongoing pain.

282     Whilst Mr Shannon found some non organic features to her presentation, he noted the plaintiff had some significant spasm, so essentially she was suffering from mechanical low back pain with some degree of non organic component and possibly developing a pain syndrome.   

283     On initial examination in December 2012, Mr Jones thought the plaintiff’s history was suggestive of a superimposed disc injury at the L4-5 level, manifesting as back and right leg pain.  On re-examination a year later, he thought there were some functional components in the plaintiff’s presentation.

284     Dr Yong diagnosed a discal injury to the low back which had been complicated by a CPS.

285     Mr Khurana, neurosurgeon, in May 2012, diagnosed mechanical back pain with probably substantial psychological overlay

286     Dr Sheehan, psychiatrist, in April 2012, diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild severity secondary to a spinal injury and CPS.

287     Dr Silver was the lone examiner, who did not find any physical contribution to the plaintiff’s present lumbar condition, going as far as to say he believed her presentation was grossly and deliberately embellished, if not feigned, diagnosing a non organically based pain syndrome.

288     Interestingly, when orthopaedic surgeon, Mr Shannon, examined the plaintiff on the defendant’s behalf on the same day as he was examined by Dr Silver, he found muscle spasm on examination and did not question the plaintiff’s genuineness.

289     The relief obtained by the plaintiff following the Ketamine infusions adds further weight to the view that her lumbar complaints have a physical basis.

Credit

290     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[44]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[44](2010) 31 VR 1 at paragraph [12]

291     I found the plaintiff to be a truthful witness who freely acknowledged the increase in her symptoms after the second date.

292     Whilst it was noted in the Court Book index that surveillance had been undertaken, no film was shown in court.  Save for Dr Silver, no medical practitioner considered the plaintiff was deliberately exaggerating her symptoms, with some examiners even commenting on her genuineness and the absence of abnormal illness behaviour.

293     In Haden Engineering Pty Ltd v McKinnon,[45] Maxwell P noted that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).

[45](supra) at paragraph [11]

294     I accept the plaintiff continues to suffer lumbar and right leg pain.  Her low back pain is sometimes severe and worse with activity.  She also has constant right leg pain from the buttock to the heel.

295     Due to her back pain, the plaintiff is restricted in lifting and bending and she has difficulties with prolonged postures.

296     The plaintiff continues physiotherapy treatment and she undertakes self managed hydrotherapy.  She has undergone three infusions and more are planned by Dr Todhunter.  These procedures have given the plaintiff limited relief.

297     The plaintiff presently takes Targin and Endone daily and Endep at night.  She also takes Lyrica in the morning and at night.  The medication causes drowsiness and results in difficulty with concentration.

298     In Kelso v Tatiara Meat Company Pty Ltd,[46] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.

[46][2007] VSCA 267 at paragraph [199]

299     The plaintiff is still relatively young, now aged thirty three.

300     In Stijepic v One Force Group Aust Pty Ltd,[47] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

[47][2009] VSCA 181 at paragraph [43]

301     The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

302     The plaintiff is significantly restricted in her ability to do housework and cooking, having previously particularly enjoyed the latter.  She also has difficulty with shopping and gardening as a result of her back injury.  She is unable to drive for extended periods due to back pain, and her medication causes drowsiness.

303     The plaintiff is significantly restricted in her ability to play with her four-year-old son.  She had to give up the gym in 2008 because of her back condition.

304     Significantly, the plaintiff no longer has a capacity for manual work – a view shared by the majority of medical examiners in this case.

305     Whilst the infusions have provided some relief, improvement thereafter has been of limited duration.  In those circumstances, I accept that the plaintiff’s back condition is likely to be permanent.

306     Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s lumbar impairment are “serious”.

307     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.  

Loss of earning capacity

308     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

309     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. 

310     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

311     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

312     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

313     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein - Barwon Spinners Pty Ltd & Ors v Podolak.[48]

[48](supra) at paragraph [70]

314     I am therefore required to determine a “without injury” earnings figure. 

315     The parties agreed upon the figure of $60,000.[49] Sixty per cent thereof is $36,000 – approximately $690 per week.

[49]T114

316     In my view, the plaintiff has a capacity for suitable employment in light physical work.  Further, she has the capacity to be retrained in a more sedentary occupation.

317     The only supporter of the view the plaintiff permanently has no capacity for suitable employment on a physical basis is Dr Tapsall. 

318     In April 2012, Dr Sheehan considered the plaintiff had no work capacity based on her psychiatric condition.

319     All other medical practitioners, save for Dr Silver, agreed the plaintiff had a capacity for work which was not heavy or physical in nature or work which involved clerical type duties.

320     The plaintiff’s other current treating medical practitioner, Dr Todhunter, thought she had a partial permanent incapacity for work and it would be in her best interests to return to work after retraining into a sedentary role.  He did not suggest there was any limit to the hours the plaintiff could work.  He suggested this course despite his view that further infusions were required.

321     Mr Isbister considered the plaintiff would be able to return to a more sedentary occupation involving clerical duties provided she could alter her posture with future employment capacity depending on the result of further treatment.

322     Mr Shannon, in October 2011, considered the plaintiff had a limited capacity for work involving significant bending, lifting, prolonged sitting or standing. 

323     Mr Kelman, in 2012, thought the plaintiff required long term but not permanent restrictions as to physical work. 

324     Mr Khurana, in 2012, thought the plaintiff would be fit for work other than physical work.

325     Dr Yong considered the plaintiff fit on a full time basis for a wide range of sedentary, clerical type duties on a graduated return to work program.

326     Mr Brownbill, in November 2013, thought the plaintiff would be capable of attempting a graduated return to work program avoiding heavy lifting, repeated bending and sustained postures.

327     In 2013, Mr Jones thought the plaintiff was restricted in her ability to do heavy lifting or carrying.  He considered she was fit to work in a number of sedentary roles suggested by ANZCO of receptionist, tourism and travel advisor and personal assistant.  He noted, however, her level of medication may impact on her ability to work in those jobs.

328     Dr Silver, in October 2011, was the only practitioner who thought the plaintiff was physically capable of performing any ergonomically sound physical activity to which she put her mind.

329     Taking into account this medical evidence, I am satisfied the plaintiff has a capacity for light physical work with no particular restriction on the hours worked.

330     The plaintiff has not applied for work since ceasing employment with the defendant.  She has not taken any steps in terms of retraining or rehabilitation.

331     Whilst Dr Todhunter has suggested she retrain and is suitable for clerical or bookkeeping work, the plaintiff has followed Dr Tapsall’s advice to wait and see if her pain settles.

332     As vocational assessor, Ms Schneider, described, the plaintiff is a very intelligent and adaptable woman.  The plaintiff completed secondary school in Australia and went on to tertiary study, completing a tourism course and two years of a degree course, having difficulty in only two subjects.

333     Whilst she has only worked in manual work, the plaintiff’s English is excellent.  She has multiple skills which could be improved upon by further training, having shown aptitude for study at a relatively high level in the past.

334     The plaintiff agreed that retraining in a field such as bookkeeping would be appropriate given her history and previous training.  I do not accept, however, having undertaken retraining in this field and obtained work in this area or another clerical job, she would be limited to working twelve to fifteen hours as she described.  Save for Dr Tapsall, who considered the plaintiff had no capacity for employment, there is no medical opinion that the plaintiff is limited in the hours she can work.

335     Whilst further Ketamine infusions would interrupt the plaintiff’s return to work or retraining to some extent, they would not preclude her from undertaking these activities.

336     Accordingly, I am not satisfied the plaintiff has discharged the onus pursuant to s134AB(38)(g).  I am not satisfied that with rehabilitation or retraining the plaintiff would not have the capacity to earn in excess of $690 per week.   

337     Therefore, the plaintiff’s claim in relation to loss of earning capacity is dismissed. Leave is granted to bring proceedings for damages for pain and suffering.

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