Simpson v Tasty Trucks Pty Ltd
[2014] VCC 1562
•18 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-01218
| KAY SIMPSON | Plaintiff |
| v | |
| TASTY TRUCKS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20 & 23 June 2014 | |
DATE OF JUDGMENT: | 18 September 2014 | |
CASE MAY BE CITED AS: | Simpson v Tasty Trucks Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1562 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave under section 134AB(16)(b) of the Accident Compensation Act for pain and suffering and loss of earning capacity damages - impairment of lumbar spine - dispute as to calculation of without injury earning figure
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622, Jatayilakev Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201, Fokas v Staff Australia Pty Ltd [2013] VSCA 230, HayhillPty Ltd vHodge [2006] VSCA 194, Acir v Frosster Pty Ltd [2009] VSC 454, Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. O’Dwyer SC with | Maurice Blackburn |
| Mr G. Wicks | ||
| For the Defendant | Mr C. Miles | Thomson Geer |
HER HONOUR:
Introduction
1 By originating motion filed on 16 March 2012, the plaintiff, Kay Simpson, sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to institute common law proceedings to recover pain and suffering and pecuniary loss damages. The injury alleged was to the plaintiff’s spine arising out of or in the course of her employment as a food process worker with food manufacturer, Tasty Trucks Pty Ltd and, in particular, injury suffered following a lifting incident on or about 26 November 2007.
2 The plaintiff was required to prove compensable injury on or after 20 October 1999. This was not an issue in this application.
3 Whilst the application was initially made under both paragraphs (a) and (c) of the definition of “serious injury”,[1] the claim under paragraph (c) was abandoned during closing submissions.
[1] Section 134AB(37)
4 Under paragraph (a) of the definition, the plaintiff was required to prove a "permanent serious impairment or loss of a body function", on the balance of probabilities.
5 "Permanent" refers to impairment that was "likely to last for the foreseeable future".[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 [33]
6 Section 134AB(38)(c) of the Act provides that pain and suffering and loss of earning capacity consequences of the injury, when judged by comparison with other cases in the range of possible impairments or loss of a body function, must be fairly described as being more than "significant" or "marked", and as being at least "very considerable".
7 The plaintiff was also required to discharge the burden imposed by section 134AB(38)(e) which arises pursuant to (e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
8 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, she had a capacity for any employment which, if exercised, would result in her earning more than 60% of pre-injury earnings as determined in accordance with section 134AB(38)(f).
9 The plaintiff was further required to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[3]
[3] Sections 134AB(38)(19)(b) and (38)(g)
10 Section 5(1) of the Act defines "suitable employment" such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
11 If the plaintiff satisfied the loss of earning capacity requirements under section 134AB of the Act, she was entitled to leave to institute proceedings for both her pecuniary loss and pain and suffering damages, without further determination of the pain and suffering component of the application.
12 Section 134AB(38)(h) provides that any psychological or psychiatric consequences of the injury are to be taken into account only for the purpose of paragraph (c) of the definition of "serious injury" and not otherwise. This meant that, any psychological or psychiatric consequences of the injury were disregarded when assessing any consequences of the impairment or loss of function of the plaintiff's spine as a result of the injury.
13 Whilst there was some limited attack on the reliability of the plaintiff’s complaints, the dispute was focussed on the plaintiff’s loss of earning capacity and whether her physical capacity to work exceeded the 16 hours per week certified before retrenchment on 1 July 2013.[4] I did not, however, find any reason to question the plaintiff’s credit or her reliability as a witness.
[4] Transcript (TN) 24
14 The plaintiff's calculation of her without injuries earnings figure (as determined in accordance with section 134AB(38)(f)), namely the sum that most fairly reflected her earning capacity had injury not occurred, was also challenged. The defendant further asserted a failure to disentangle psychological consequences from the physical consequences of the injury and, ultimately a failure to meet the requirements of the narrative test.
15 As my discussion of the evidence in due course shows, I was satisfied there was a substantial organic basis for the pain and suffering and loss of earning capacity consequences on which the plaintiff relied[5] and, having met the requirements of the narrative test, she was entitled to leave. I will explain my approach to the economic loss claim and the calculation of the without injury earnings figure shortly.
[5] See Jatayilakev Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201, [19]; Fokas v Staff Australia Pty Ltd [2013] VSCA 230, [5]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
The evidence called and tendered
16 The plaintiff attested to the accuracy of her three affidavits sworn on 5 October 2011, 2 July 2013 and 12 June 2014 respectively. She was cross-examined.
17 The plaintiff and the defendant tendered extracts from their respective Court Books.
18 The material tendered by the plaintiff comprised multiple reports from treating doctors, health professionals and medico-legal specialists, a copy of the Employer Claim Report dated 29 January 2008, vocational assessment reports prepared by Evidex dated 19 May 2014 and 21 May 2014, and Earnings Report prepared by Flexi Personnel dated 18 June 2014 and a summary of the Plaintiff’s Gross Earnings for the financial years ending 30 June 2005 to 30 June 2012 inclusive.[6]
[6]Exhibit P3
19 Additional documents separately tendered by the plaintiff comprised a record of hours worked for the financial years 2011 to 2013 prepared by the defendant,[7] a copy of Certificate of Capacity dated 28 May 2013,[8] copies of letters of instruction from the defendant’s solicitors to occupational physician, Dr Davison dated 21 March 2014, 5 June 2013 and 2 May 2013,[9] copies of letters of instruction from the defendant’s solicitors to orthopaedic surgeon, Mr Polke dated 21 March 2014, 5 June 2013, 2 May 2013 and 16 November 2011,[10] a copy of Workplace Agreement commencing 1 June 2007[11] and a copy of Production Enterprise Agreement 2010.[12]
[7]Exhibit P1
[8]Exhibit P2
[9]Exhibit P4
[10] Exhibit P5
[11] Exhibit P6
[12] Exhibit P7
20 The material tendered by the defendant comprised multiple medico-legal reports together with an affidavit sworn on 11 June 2014 by the defendant’s Production Manager, Michael Byrne.[13]
[13] Exhibit D1
21 Mr Byrne was required for cross-examination, as was the plaintiff’s treating general practitioner, Dr Koniuszko and medico-legal witness, occupational physician, Dr Sillcock.
Background matters
22 Various background matters to which the plaintiff deposed in her evidence are summarised in the paragraphs that follow.
23 The plaintiff is 49 years of age. She and her partner have two adult children.
24 The plaintiff completed her schooling to Year 9 level after which she performed either bookkeeping, clerical or food preparation work. Apart from periods off work following the birth of her children the plaintiff continued to work part-time either in cafes or as a process worker.
25 In about December 2003 the plaintiff commenced part-time casual employment as a food process worker/food handler with the defendant company. The latter apparently provides sandwiches, rolls, pies, cakes and the like to factory sites. At some stage, the plaintiff transferred to full-time work on night shift and in due course she became a full-time permanent employee, working on the production line.
26 The plaintiff was treated for earlier back injury in 1988 from which she apparently recovered. Assessment of pre-existing impairment was not an issue in this case.
27 After commencing employment with the defendant, the plaintiff required treatment for back pain on a number of occasions. The first incident occurred in or about October 2006. The plaintiff deposed she experienced sharp pain in her low back when leaning to pick up a tub of eggs at work. The pain settled without symptoms fully resolving after some six weeks off work. The plaintiff, nonetheless, returned to part-time light duties but continued to experience occasional back and right leg pain in association with lifting, reaching and bending at work.
28 The second incident occurred on or about 26 July 2007. On that date, the plaintiff said she slipped and fell at work while carrying empty tubs. This incident apparently led to persistent back and right leg pain which, with rest, medication and physiotherapy settled sufficiently for the plaintiff to return to her normal duties, subject to the proviso that she avoid heavy lifting and repeated bending.
29 On or about 26 November 2007 the plaintiff suffered further injury to her low back as she attempted to lift tubs of chicken weighing about 15 kilograms each. The plaintiff described a “popping” sensation in her lower back which soon became very painful (“I had pain in the right side of my low back and later, that pain travelled to my buttocks, hamstrings and both legs”[14]). The plaintiff continued to work. She took Panadol and later on Panadeine Forte, but was unable to complete the nightshift.
[14] PCB 9
Early treatment and investigations
30 The evidence of treatment and the investigations undertaken was taken from the plaintiff’s affidavits and the medical reports of treating doctors and health professionals.
31 The day after the injury, the plaintiff attended general practitioner, Dr Francis. His report, dated 18 October 2010, among other things, confirmed that Dr Francis prescribed painkilling medication, Tramal SR, the plaintiff was certified unfit for work for eight days and a CT scan was ordered.[15]
[15] PCB 46
32 The results of the scan were summarised in the report of the treating general practitioner, Dr Koniuszko dated 31 August 2010.[16] The radiologist relevantly reported a small posterolateral protrusion at the L4/5 level with slight thecal indentation on that side and a minor degenerative bulge of the L3/4 disc without significant thecal compression.
[16] PCB 50
33 When consulted by the plaintiff on 5 December 2007, Dr Koniuszko diagnosed lumbar/sacral strain with compression at the L4/5 level, he gave the plaintiff further time off work and continued to treat her condition conservatively with medication, Panadeine Forte and the anti-inflammatory, Mobic. However, when these measures failed to resolve lower back, buttock and leg pain, the plaintiff was referred for physiotherapy treatment, the corticosteroid medication, prednisolone was prescribed and, in due course, the doctor referred the plaintiff for assessment by orthopaedic surgeon, Mr Johnson.
34 A report from Back in Motion physiotherapist, Miss Burdan indicated that the plaintiff commenced physiotherapy treatment from about January 2008.[17]
[17] PCB 74
35 In the meantime, despite improvement in her condition, pain and parasthesia affecting the right hip and leg continued and the plaintiff developed insomnia and nausea. On 22 February 2008 the doctor discontinued the Mobic medication. Antacid and anti-depressant medications were prescribed, Zantac and Endep respectively along with analgesia, Tramal and Panadeine Forte.
36 On 7 March 2008 MRI investigation of the plaintiff’s lumbosacral spine apparently reported, firstly, a “(l)arge left paracentral disc protrusion L4-L5 disc with an associated large extrusion of nuclear material ascending beneath the PLL into the left supra-articular lateral recess. Mild neuro-compression of both the L4 and L5 nerve roots result” and, secondly, a “(m)ild uncomplicated central disc protrusion L5-S1”.[18]
[18] PCB 50
Initial return to work and ongoing treatment and investigation
37 With improvement in the plaintiff’s condition, on 7 March 2008 the general practitioner cleared her from 11 March 2008, for restricted duties and hours. The plaintiff deposed she chose work to staying at home. She worked light duties for a couple of hours a day for 2 to 3 days a week and avoided carrying and bending.
38 The plaintiff was seen by Mr Johnson on 3 April 2008.[19] On this occasion, the plaintiff reported some improvement in symptoms but difficulty in performing part-time work. She complained of continuous low back pain radiating into both legs, worse on the right where the pain extended to the back of the calf and symptoms aggravated by prolonged standing and sitting.
[19] PCB 59-62
39 At the time, Mr Johnson was uncertain about the cause of the mostly right-sided symptoms because the radiology showed a left-sided disc prolapse at the L4/5 level. He advocated a conservative approach which, initially, involved lumbar epidural injection administered on 8 March 2008 and referral to consultant in rehabilitation and pain medicine, Dr Clayton Thomas at the Victoria Rehabilitation Centre. This referral was, Mr Johnson said, to assist the plaintiff during what he believed would be a prolonged period of recovery, especially since the plaintiff’s normal work duties were of a significant physical nature.
40 Unfortunately, the injection did not provide relief from the plaintiff’s symptoms.
41 The plaintiff first saw Dr Thomas on 13 May 2008 by which stage the plaintiff was booked to undergo a decompressive procedure on 29 May 2008.[20] In any event, Dr Thomas’ initial impression was that the L4/5 disc bulge probably accounted for the back and bilateral leg symptoms reported. Relevantly, the plaintiff presented to Dr Thomas as someone who remained motivated to return to work. He arranged to review the plaintiff post-surgery.
[20] PCB 65-67
42 On 29 May 2008 Mr Johnson performed a left L4/5 decompression procedure. Both Mr Johnson and Dr Koniuszko recorded that post-operatively the plaintiff reported marked improvement in left leg pain. According to Mr Johnson, on 24 June 2008 the plaintiff reported considerable improvement in back pain, although she was still experiencing some discomfort in her legs particularly the right leg. This disrupted her sleep at night.
43 Mr Johnson recommended against fusion surgery, the plaintiff continued with medication (analgesia and Endep) and, she was seen by Dr Thomas on 17 July 2008. On this occasion, among other things, Dr Thomas noted the following matters:
· the plaintiff reported less leg and back pain with improved mobility following surgery. However her sitting tolerance was limited and her pain levels (reportedly 5/10) escalated if she failed to take medication;
· taking 15 mg of Endep at night had improved sleep and her emotional state;
· examination of the plaintiff’s back had revealed, in the doctor’s words: “extraordinarily stiff” movements;
· the plaintiff was referred to an outpatient rehabilitation program;
· his support for a return to some form of light duty work to aid the plaintiff’s mental health;
· a medication regime consisting of Tramadol, Panadol Osteo instead of Panadeine Forte and resumption of the anti-inflammatory, Mobic.
44 In keeping with Dr Thomas’ recommendation and, despite ongoing pain, on 29 July 2008 the general practitioner cleared the plaintiff to return to work on limited duties for 2 hours per day, 2 days per week, where she could avoid lifting and bending of her spine and sit as required.
45 The rehabilitation program had not commenced by the time the plaintiff was reviewed by Mr Johnson on 27 August 2008. On review, the plaintiff complained her symptoms had not improved. Her walking and sitting tolerances were, she reported, limited to 20 minutes and 30 minutes respectively.
46 The plaintiff was reviewed by Dr Thomas on 2 September 2008, at which stage the plaintiff reported back and bilateral leg pain, the latter of greater concern overnight. The plaintiff complained that working 3 hours, 2 nights per week had worsened pain and she had problems managing her pain relief after Panadeine Forte was discontinued. On this occasion, the doctor decided to trial a drug typically used in the relief of neuropathic pain, Lyrica.
47 As is apparent from both the plaintiff’s affidavit material and Dr Thomas’ earliest report, the rehabilitation program was delayed until late 2008. However, on a number of occasions between September 2008 and April 2009 Dr Thomas adjusted the plaintiff’s medication to accommodate emotional distress caused by the plaintiff’s inability to manage pain. For instance, on 13 November 2008, the doctor discontinued the Tramadol and prescribed Norspan patches, he reduced the dosage of Endep and he commenced the plaintiff on the antidepressant medication, Cymbalta.
48 Apparently the plaintiff had not tolerated Cymbalta or the Norspan patches. The latter caused skin irritation and when reviewed, on 23 December 2008, these were replaced with Durogesic patches.
49 When next reviewed on 12 February 2009 the plaintiff was still using Endep and Durogesic patches, the latter supplemented with Tramadol. On this occasion, the antispasmodic, Baclofen was also prescribed to counter myoclonic jerking at night.
50 The plaintiff was reviewed by Mr Johnson on 11 February 2009. She was taking Tramadol and using Durogesic patches and apparently reported being: “definitely better than pre-operatively she still had a significant problem particularly of leg discomfort. This pain extended down to the feet and limited her walking to 12 minutes.”[21]
[21] PCB 61
51 Plain x-rays and MRI scans of the lumbar-sacral spine ordered by Mr Johnson on 16 February 2009 apparently demonstrated some disc degeneration at the L4-5 and L5-S1 levels as well as evidence of the earlier decompressive surgery. Relevantly, the radiological results had not revealed pathology which helped identify the cause of the plaintiff’s ongoing symptoms.
52 As his report to the plaintiff’s solicitors in April 2010 indicated, when Mr Johnson reviewed the plaintiff for the last time on 25 February 2009, he recommended against spinal fusion surgery because he could not provide an exact diagnosis of the cause of the plaintiff’s ongoing problems and he could not be satisfied that the plaintiff would reliably benefit from further surgery.
53 Notably, Mr Johnson advocated ongoing conservative treatment for what he suspected was a problem related to the original L4-5 disc prolapse. When last seen, Mr Johnson considered the plaintiff physically incapable of performing her original work. In short, whilst Mr Johnson was not able to provide an exact diagnosis based on any revealed pathology, he, nonetheless, suspected that the injury to the disc remained responsible for the symptoms of which the plaintiff continued to complain.
54 According to the reports submitted by the physiotherapists, either during or after the rehabilitation program the plaintiff resumed physiotherapy as needed and later (in 2010) participated in a gym program, the latter to improve her core strength. A request for approval of a further gym program in June 2011 was unsuccessful. However, as the report addressed by the physiotherapist to the Accident Compensation Conciliation Service (ACCS) on 10 May 2012 demonstrated, the plaintiff had benefitted from a home exercise program, gentle walking and physiotherapy treatment, the latter either on a weekly or fortnightly basis (“These treatments allow Kay to continue at work for her regular hours but do not allow Kay to do overtime, increase or progress in her duties or hours at work”[22]).
[22] PCB 75
55 The plaintiff also benefitted from the rehabilitation program which enabled her to stop using the patches and provided strategies for coping with pain. Her evidence in this regard was in keeping with the record made by Dr Thomas. He next reviewed the plaintiff on 15 April 2009.
56 During the period of the rehabilitation program the plaintiff established a therapeutic relationship with psychologist, Ms Sheeney. The plaintiff’s affidavit material, along with the psychologist’s reports dated 13 March 2009 and 30 October 2009 indicated that psychological treatment to help manage significant depressive symptoms continued between early 2009 and a reported improvement in the plaintiff’s psychological state in either late 2011 or early 2012.[23]
[23] PCB 12, 16 and 42-45
57 Notably, despite the presence of psychological factors, in his report to the plaintiff’s solicitors on 11 May 2010, Dr Thomas also attributed what he considered a significant impairment to the work-related disc injury at L4/5, which had not stabilised by April 2009.
The return to part-time work subsequent to the rehabilitation program
58 Whilst the date of the return to restricted employment following completion of the rehabilitation program was unclear, I have accepted that the plaintiff probably resumed modified duties in about mid-2009. Thereafter, she gradually increased her hours and by September 2010 the plaintiff was working day shift, 3 hours for 3 days per week. Allowing for the physiotherapist’s report, in April 2010, the 3 hour shifts represented the limit of the plaintiff’s capacity because, as reported, she had tried: “4 days of work a week and her back pain became aggravated”. [24]
[24] PCB 72
59 Nevertheless, when she swore her first affidavit in October 2011, the plaintiff deposed that, whilst she was then expected to work 3 ½ hours, 4 days a week, with an understanding boss who allowed some flexibility on some days, she had been able to work slightly longer hours with an extra break.[25] Nevertheless, experience, the plaintiff claimed, had demonstrated that performing even light simple jobs such as handling loaves of bread or preparing small packets of food for 3 ½ hours “straight” was the most she could cope with.
[25] PCB 13
60 When the plaintiff swore her second affidavit on 2 July 2013, she had been working with restrictions for 4 hours per day, 4 days per week, although, when other workers were absent, if asked, she helped. The plaintiff deposed she performed this additional work on the basis that she was allowed extra breaks and managed the work by taking extra medication.
61 In the same affidavit, the plaintiff deposed she had been told on termination that her injury precluded a move into suitable duties. At the time, the plaintiff said she continued to suffer from constant low back pain and pain in both buttocks and down her legs. Pain was exacerbated by work.
62 In her final affidavit, sworn on 12 June 2014,[26] the plaintiff deposed that she had not been successful in obtaining part-time light work, despite making inquiries with some 30 cafe businesses about light work. One reason given was that some employers required longer hours or duties such as stacking tables and chairs. These requirements were, the plaintiff said, beyond her capacity.
[26] PCB 17A-17B
63 The plaintiff further deposed that enquiries about work as an aged companion had indicated working hours beyond her physical capacity. Lastly, the plaintiff’s response to an advertisement for letterbox delivery of advertising material had not, she said, elicited a reply.
Psychiatric assessments in 2009 and 2011
64 Relevantly, three psychiatrists, Dr Sheehan, Dr Duke and Dr Dharwadkar examined the plaintiff on 24 July 2009, 2 December 2009 and 10 June 2011 respectively, at the request of the insurer.[27] Their reports did not assist the defendant in contesting the presence of a likely substantial organic basis for particularly the plaintiff’s permanently reduced work capacity.
[27] DCB 14-59
65 Dr Sheehan diagnosed an adjustment disorder with depressed and anxious mood; a condition he believed had developed in the context of chronic pain secondary to the injury to the plaintiff’s spine and the severe restrictions on her personal and occupational functioning. He noted the plaintiff’s medication, which at that stage, included low dosages of Endep (75mg daily) used for both pain relief and in the treatment of her depressed mood and the mood stabiliser, Epilim (200mg, three times daily). Dr Sheehan advocated referral to a psychiatrist for review of the plaintiff’s psychopharmacological management and ongoing psychological therapy.
66 Dr Duke, on the other hand, assessed major depression, the treatment of which he predicted was indefinite because the condition was secondary to the plaintiff’s physical condition and pain. He recommended continuation of the drug regime and psychological therapy. In later correspondence, Dr Duke advised there was no psychiatric impediment to the plaintiff undertaking suitable employment or occupational rehabilitation.
67 When assessed by Dr Dharwadkar on 10 June 2011, among other things, the plaintiff apparently reported feeling a lot better emotionally. She, however, continued to describe physical pain and symptoms involving constant pain in the lower back, travelling down to the back of her bottom and down the sides and back of both legs (“It goes down to the knees and the whole leg from both knees down, a stinging and burning sensation which is constant. If I’m very careful, I can cope very well with the pain. It was much worse before going on valproate. If I overdo activities physically like going in and out of the car carrying heavy bags or bending, then the pain increases”[28]).
[28] DCB 52
68 Dr Dharwadkar diagnosed a major depressive disorder, which he considered close to remission, with a pain disorder associated with both psychological factors and a general medical condition. The plaintiff’s psychiatric condition was, Dr Dharwadkar said, caused by the work-related injury and resultant chronic pain limitations and functioning. He advocated continuation of the plaintiff’s antidepressant treatment (for the foreseeable future) and therapy (with a gradual reduction in the sessions with the psychologist to achieve self-management) to avoid the possibility that a relapse of depressive symptoms could affect the plaintiff’s capacity to remain at work. However, it was clear from this psychiatrist’s report that he too saw no psychiatric impediment to the plaintiff remaining at work, where the plaintiff’s psychiatric symptoms were well managed by medication and/or therapy.
The Plaintiff's treatment and further assessment before termination of employment
69 In the period between late 2011 and termination of the plaintiff’s employment on 1 July 2013, the plaintiff apparently continued to suffer constant low back pain and pain in both buttocks and down her legs, which she said was aggravated by work.[29] During the same period the plaintiff continued to attend the treating general practitioner, Dr Koniuszko, who, in reports dated 31 August 2010 and 8 May 2012, recorded ongoing complaints of significant back pain and pain in both legs with a burning sensation and significant anxiety/depression.[30]
[29] PCB 16
[30] PCB 51 and 56
70 In August 2010 Dr Koniuszko provided the plaintiff’s solicitors with the following opinion and prognosis:[31]
“Kay Simpson suffered Lumbar – Sacral Strain with L4-5 Disc protrusion and resultant nerve root irritation while at work for Tasty Trucks on the 26.11.2007. The disc protrusion had been decompressed and one would expect the strain to have settled. Unfortunately she has developed a chronic pain syndrome and I feel this would account for most of her symptoms. As there is no specific remedy for this syndrome, the likelihood of her recovery is extremely remote. Her symptoms will most likely remain long-term and worsen over time. I do not feel that her capacity for work will improve and will remain extremely limited with restriction on no lifting, avoidance of bending the L/S spine with frequent rests and seating as required. Treatment is likely to remain conservative unless there develops a new indication for surgical intervention.”
[31] PCB 52
71 In May 2012, Dr Koniuszko provided the ACCS with the same opinion and prognosis, having also explained that:[32]
[32] PCB 56
· the plaintiff’s condition was fairly static with episodes of acute exacerbations of pain usually associated with over exertion;
· current medication consisted of Tramadol, Panadeine Forte, Endep and Epilim, with attempts to lower the frequency or dosage of these drugs resulting in exacerbation of the plaintiff’s condition;
· the plaintiff was still consulting her psychologist;
· whilst physiotherapy had by then ceased, this had been beneficial in relieving some of the plaintiff’s symptoms.
72 As mentioned, Dr Koniuszko gave evidence at the hearing. I will summarise his evidence shortly.
73 The report also submitted by the physiotherapist in May 2012 to the ACCS, nonetheless indicated in some detail her analysis of the plaintiff’s then capacity for pre-injury duties or suitable employment. At the time the plaintiff was working slicing meat for a maximum of 3 to 4 hours per day, 4 days per week, with lifting restricted to 5 kg.
74 According to the record made, the plaintiff had reported significantly increased pain where her work exceeded the hours specified. However, her tolerance for overtime (1 to 2 hours per week) was improved whilst the plaintiff was undergoing physiotherapy, gym work and a home based exercise program.
75 In May 2012, the treating physiotherapist recommended against increasing the hours or changing the duties worked.
76 Relevantly, the plaintiff was assessed by orthopaedic surgeon, Mr Polke at the request of the defendant’s solicitors on 9 February 2012[33] and by neurosurgeon, Professor Bittar at the request of her solicitors in May 2012.[34]
[33] DCB 82(i)-(o)
[34] PCB 79-81
77 Mr Polke had available a range of earlier reports made by the plaintiff’s treating doctors as well as the earliest of the physiotherapists’ reports. The salient features of the first of Mr Polke’s reports are summarised as follows:
· the plaintiff complained of low back pain radiating into both legs down to her feet and described pain as “intense, burning needles”;
· clinical examination of the plaintiff’s dorso-lumbar spine revealed reduced movements to about half of normal in all directions, straight leg raising to 60 degrees bilaterally produced lower back pain and there was a reduced right knee reflex;
· the plaintiff was then working dayshift, 3 to 4 hours per day, 4 days per week, slicing meats with a computerised slicing machine and she was able to move around in a self-paced manner;
· medication consisted of Endep, the anti-convulsant, Valproate, Tramadol and up to 3 Panadeine Forte tablets a day when pain was severe;
· Mr Polke diagnosed work-related lower lumbar disc prolapse as revealed by the imaging obtained in 2007 and 2008;
· Mr Polke considered the current management of the plaintiff’s condition reasonable;
· Mr Polke considered the plaintiff incapacitated for her pre-injury employment duties and only fit to work reduced hours. She was, in his opinion, permanently incapacitated for employment that required prolonged standing or sitting, repeated bending and heavy lifting or heavy pulling and pushing.
78 The salient features of Professor Bittar’s only report are summarised as follows:
· the plaintiff complained of significant deterioration in her condition following cessation of physiotherapy;
· the plaintiff complained of constant dull ache in the lower back associated with burning pain which radiated through her buttocks and down the posterior aspect of both legs and exacerbation of her symptoms with bending, twisting, sitting for more than 15 minutes, lifting more than 5kg and standing still for more than 5 minutes;
· clinical examination revealed, among other things, “fairly severe” restriction of lumbar spine flexion, bilateral lumbar paravertebral tenderness and guarding, mildly restricted straight leg raising on both sides and altered sensation to light touch over the dorsum of the left foot;
· having also reviewed the MRI scans obtained in March 2008 and February 2009, Professor Bittar diagnosed work-related symptoms of L4/5 (+/-L5/S1) disc prolapse with clinical features of radiculopathy;
· in Professor Bittar’s opinion the plaintiff was permanently incapacitated for pre-injury duties as a food handler, although she was then capable of continuing with her part-time modified duties. He considered any increase in the plaintiff’s future capacity for work unlikely and, absent ongoing physiotherapy, Professor Bittar could not exclude a risk of further deterioration in her condition and work capacity;
· Professor Bittar predicted significant pain and disability into the foreseeable future. He recommended review by a pain specialist to consider trialling spinal cord stimulation to improve the burning pain radiating into both legs.
79 In short, the evidence of both Mr Polke and Professor Bittar represented clear acceptance of the likely presence of a substantial organic basis for the symptoms of which the plaintiff complained and an indication that in 2012 the plaintiff probably remained physically unfit to return to full-time, unrestricted physical duties.
80 A number of reports were submitted by both treating and medico-legal doctors in May 2013, shortly before termination of the plaintiff’s part-time employment.
81 In a report dated 14 May 2013,[35] Dr Koniuszko confirmed that the plaintiff continued to complain of pain in her back and legs with episodic exacerbations caused by over exertion or an attempt to reduce her medication. Examination on 30 April 2013 apparently revealed significant restrictions in movement of the plaintiff’s spine and legs caused by pain. At the time, Dr Koniuszko considered the plaintiff’s prognosis poor: “in that her pains and limited movements will persist and may even deteriorate further. Future medical treatment will involve pain management with medication as now is the case and may also involve surgical intervention such as decompression and spinal fusion”.[36]
[35] PCB 57-58
[36] PCB 58
82 In summary, allowing for factors such as the plaintiff’s age, education, work history, the extent of her physical injury, her limited transferable skills and the medication, the general practitioner considered the plaintiff permanently physically unfit for unrestricted work. The restrictions Dr Koniuszko imposed in May 2013 and still considered appropriate at hearing,[37] involved the plaintiff working 4 hours per day, 4 days per week, with a lifting maximum to 2 kg, avoidance of bending and twisting of the spine and seating available as required.
[37] TN 93
83 Whilst the questions directed to the doctor were not tendered, it appears that Dr Koniuszko was also asked questions about the plaintiff’s psychiatric illness. Taking into account psychiatric illness only and without further explanation, he advised the plaintiff’s solicitors the plaintiff was “not fit for unrestricted work”. Subject to discussion shortly of the doctor’s responses under cross-examination, I took this rather convoluted statement to accord with the opinions expressed by the defendant’s psychiatrists; namely, that the plaintiff’s capacity for work was not restricted by her psychiatric condition.
84 Dr Thomas, who last treated the plaintiff in April 2009, reviewed her at the request of her solicitors on 14 May 2013. At the time he had access to the plaintiff’s first affidavit and reports from Professor Bittar, Dr Francis, Dr Koniuszko, Mr Johnson and one of the treating physiotherapists. The CT scan report obtained on 29 November 2007 but not the MRI scan material was also made available, as well as an early vocational assessment report. The salient features of this report were to the following effect. As at 14 May 2013:[38]
[38] PCB 68-71
· the plaintiff reported persistent symptoms of pain in her lower back and radiation of pain back into the legs and into the feet;
· medication comprising daily doses of Endep, Valproate and Tramadol SR, with Panadeine Forte only on working days;
· after WorkCover ceased funding this, self-funded physiotherapy every 2 to 3 weeks, which the plaintiff reported she needed when working;
· in the eight weeks preceding the examination the plaintiff had suffered a flare-up in pain which had settled with extra physiotherapy sessions;
· clinical examination revealed substantial weight gain, tenderness in the lower lumbar spine and the plaintiff’s back was again “extraordinarily stiff”;
· the plaintiff was working 4 hours, 4 days per week. In Dr Thomas’s opinion the plaintiff was permanently incapacitated for unrestricted work. However, she had the physical capacity to continue to perform her current work and hours where waist-to-chest height lifting was restricted to 7.5 kg with an occasional lift below waist height and above chest height of 5 kg and where the plaintiff was able to avoid lifting, bending and twisting below waist height and above chest height;
· as to suitable employment, Dr Thomas was doubtful that purely sedentary work was preferable because he felt that being tethered to one position could aggravate the plaintiff’s condition;
· Dr Thomas’s opinion that there was no significant psychiatric injury leading to incapacity for work was consistent with the psychiatric assessments obtained by the defendant in 2009 and 2011 and with the treating general practitioner’s assessment of this in 2013;
· Dr Thomas assessed the plaintiff as highly motivated to remain at work and, as a consequence, he felt her attempt to remain in the workforce should be supported by funding of ongoing physiotherapy treatment, where the latter assisted her in remaining in the workforce;
· the plaintiff’s prognosis was for persistent pain and disability for the foreseeable future.
85 Mr Polke re-examined the plaintiff on 16 May 2013, at which time he was provided with further documentation consisting of historical medical, radiological and physiotherapy reports in the years 1996 to 1998 as well as the report of a CT scan of the plaintiff’s lumbar spine on 23 October 2006.[39] The salient features of this report are summarised as follows:
[39] DCB 72-77
· the plaintiff continued to report “burning” low back and bilateral leg pain worsened by prolonged sitting and standing (“the pain is virtually constant with those aggravating factors”);
· the plaintiff was self-funding physiotherapy weekly or fortnightly and taking her painkilling and antidepressant medication supplemented by Panadeine Forte, the latter as required;
· clinical examination of the plaintiff’s lumbar spine revealed some tenderness but no guarding, reduced movement by some 50% of normal, the absence of tension signs and ongoing diminution of the right knee reflex. Notably, Mr Polke felt there was some suggestion of exaggeration of symptoms because some findings (the absence of guarding and signs of tension signs) indicated a positive Waddell’s test;
· on this occasion, Mr Polke described the injury as “lower lumbar disc disease” which had been improved by left-sided L4/5 discectomy and rhizolysis in 2008;
· the plaintiff’s prognosis was reasonable in the sense that she did not require additional surgery, although Mr Polke considered her symptoms unresolved;
· in Mr Polke’s opinion the plaintiff’s symptoms were now largely due to degenerative changes, with the proviso that a fall at work a couple of months earlier had probably aggravated the plaintiff’s previous symptoms. Without explaining why, by May 2013 Mr Polke believed the effects of the work-related injury were “only a negligible contributing factor”;
· as to the impact of work-related injury on the plaintiff’s employment capacity Mr Polke advised that the plaintiff probably could not work her pre-injury full-time job where she was required to stand all day either preparing food or at a conveyor belt. In his opinion, with rotation of the duties, the plaintiff could work up to 30 hours a week subject to restrictions on repeated bending and heavy lifting and on prolonged standing and sitting. The plaintiff was, nonetheless, he reported permanently incapacitated for strenuous employment that required manual labour.
86 The last mentioned report evidently generated a request for a supplementary report on 5 June 2013.[40] On this occasion, the orthopaedic surgeon was instructed that there was no specific rotation of duties. Evidently, he was instructed that the plaintiff’s duties mainly involved taking meat from a cool room (4 to 5 kg pieces) on a trolley, wheeling the trolley to the bench, taking meat off the trolley, slicing meat on a meat slicer, cleaning the meat slicer and, when time permitted, working on the snack packs production line making snack packs where empty containers were placed on the production line for filling.
[40] Exhibit P5
87 The specialist was asked for his opinion on whether the plaintiff was capable of working in the duties described for up to or, alternatively, for more than, 27.17 hours a week without specific rotation. The reference to 27.17 hours reflected the hours worked by the plaintiff for the week ending 6 March 2013 and set out in the record prepared by the defendant. This record was tendered by the plaintiff, who subject to some minor alterations to the document, accepted it as evidence of the hours she worked.[41]
[41] Exhibit P1
88 Without further assessment, on 14 June 2013, Mr Polke advised that the plaintiff was probably capable of working the hours mentioned and also probably capable of working up to “say” 30 hours a week without rotation, the proviso being that the plaintiff, who remained symptomatic, was less likely to become symptomatic if the tasks performed were diverse or rotated.[42]
[42] DCB 79-81
89 Occupational physician Dr Davison was similarly instructed by the defendant’s solicitors when he assessed the plaintiff on 11 June 2013.[43] He took into account the hours of attendance in the 11 months preceding the examination and, in particular a period of 5 weeks worked between February and March 2013.[44]
[43] DCB 83-91
[44] Exhibit P1
90 It was common ground that, as instructed by the defendant’s solicitors, the hours worked in all but one week of this limited period exceeded 20 hours per week and ranged up to 27.17 hours in one week because the plaintiff had filled-in for 2 other employees attending a wedding overseas.
91 The salient features of Dr Davison’s report are summarised as follows:
· the plaintiff reported constant pain radiating towards both buttocks. Amongst other things she described pain “like hot pokers” extending down the lateral aspect of both thighs and radiating to the anterior aspect of the knees and down the legs to the plantar aspect of the feet;
· the plaintiff estimated physical tolerances of up to 30 minutes for standing and 60 minutes for driving and sitting. Walking was apparently “good” and the plaintiff avoided any heavy lifting and especially avoided bending and lifting;
· the plaintiff managed her condition with analgesic and antidepressant medication, physiotherapy fortnightly and by avoiding aggravating factors;
· clinical examination indicated global restriction to a moderate degree of active movement of the thoracolumbar spine, forward flexion was limited to 30 degrees by pain, extension diminished to about 5 degrees and lateral flexion and rotation were diminished to one third of the expected normal range with straight leg raising to about 20 degrees bilaterally. Notably, Dr Davison attributed the bilateral lower limb pains to referred pain;
· Dr Davison observed what he believed was pain behaviour, in as much as the plaintiff stood for half the interview and rocked backwards and forwards and clinical examination had revealed positive Waddell’s signs for light touch, light axial pressure and apparent spinal movements;
· Dr Davison diagnosed chronic pain and restricted movement in the lower back in association with an intervertebral disc prolapse at the L4/L5 level, for which surgical intervention had provided some modest improvement;
· the plaintiff’s condition was stable, she was likely to require ongoing analgesic and low dose tricyclic anti-depressant medication indefinitely, the latter to augment pain relief and may require physiotherapy indefinitely to deal with flare-ups in pain that were likely to occur as part of the natural history of the plaintiff’s condition;
· in Dr Davison’s opinion chronic pain and restricted back movement permanently precluded a return to pre-employment duties. The plaintiff was, however, fit to work part-time hours where she was able to vary posture regularly and at will, avoid frequent bending or twisting and avoid manual handling greater than 4.5 kg in force or weight between mid-chest and mid-thigh height;
· despite the plaintiff’s report that she had returned to reduced hours and had been unable to continue working the extended hours worked between February and March 2013, Dr Davison concluded that 20 hours per week represented the plaintiff’s maximum work capacity under the current circumstances (“… I gained the impression that the claimant is not capable of working more than 27 hours per week and I think it is unlikely that in the long-term she would cope with working more than 20 hours per week on average”).
92 The plaintiff’s evidence under cross-examination was that she would not be able to maintain 20 hours per week on a regular basis, much less 25 or 30 hours per week, even if her duties had been rotated.[45] As the plaintiff explained, there were days when she might not be able to go to work at all. When pressed on this the plaintiff estimated that 4 hours represented the maximum number of hours she could work on a good day before taking a 10 minute break, but she usually had a break at 2 to 2 ½ hours and another break of 10 to 15 minutes if she was required to exceed 4 hours. Even with a break the plaintiff was doubtful she could work more than another one and a half hours before: “it became too much”.[46]
[45] TN 49-52
[46] TN 51-52
93 I will discuss the plaintiff’s evidence of her capacity to work longer hours in more detail shortly.
Treatment and further assessment to the date of hearing
94 Miss Burdan, the plaintiff’s treating physiotherapist provided an up-to-date report dated 3 June 2014.[47] Dr Koniuszko submitted his final report dated 10 June 2014.[48]
[47] PCB 78A-E
[48] PCB 48A-B
95 In short, the physiotherapist’s report confirmed the plaintiff continued to self-fund physiotherapy on an as needs basis to assist in the management of day-to-day pain and to help with her activities of daily living. The report also confirmed the plaintiff’s ongoing complaint that pain was exacerbated by work, particularly, if the plaintiff worked an extra shift or stayed to complete overtime. Moreover, consistent with her evidence that working aggravated her condition, the plaintiff had reported reduced pain levels to the physiotherapist since the termination of her employment.
96 Based on the plaintiff’s history and the ongoing chronic pain symptoms, the treating physiotherapist recommended that any return to work be limited to a maximum of 16 hours per week, spread over four days, with 10 minute rest breaks and subject to restrictions on prolonged sitting, repetitive bending or lifting, on twisting and on lifting weights exceeding 5kg.
97 In his final report, Dr Koniuszko recorded the following matters:
· the diagnosis of lumbar/sacral strain with disc herniation and nerve root irritation had been complicated by the development of a chronic pain syndrome and associated anxiety/depression;
· the plaintiff’s condition had not changed significantly since his last report in May 2013. She continued to complain of constant lower back pain with associated pain in both legs. Pain could be aggravated by extra activities or at times for no apparent reason;
· in Dr Koniuszko’s opinion the plaintiff’s back and leg pains comprised two components, somatic pain (“relating to actual physical injury and degenerative change, which appears to respond to analgesics and anti-inflammatory medication”) and a chronic pain syndrome (“giving her burning pains in her legs which has been less amenable to medication or other treatment”);
· in addition to episodic physiotherapy, the plaintiff took medication consisting of Tramal, Panadeine Forte, Endep, the anti-convulsant, Topamax and Temazepam. The doctor envisaged this level of treatment indefinitely. He did not exclude the possibility of surgery should the plaintiff’s condition deteriorate;
· the plaintiff’s condition had significantly impacted her work activities. The plaintiff was incapacitated for pre-injury employment and any suitable employment would need to restrict lifting to a maximum of 2kg, allow the plaintiff to avoid bending of her spine and allow her to sit as required. Such employment should also be restricted to 4 hours per day, 4 days per week;
· Dr Koniuszko considered the plaintiff’s prognosis, poor.
98 On the second day of the hearing, Dr Koniuszko gave evidence. He was cross-examined and re-examined.[49]
[49] TN 70-94
99 At hearing, Dr Koniuszko was taken to the 2014 report and to his earlier report, the latter made in August 2010. His evidence and responses under cross-examination are summarised in the following paragraphs.
100 Both in evidence and under cross-examination Dr Koniuszko told the Court that the reference in his reports to “somatic pain” described muscle and bone pain, whereas the term “chronic pain syndrome” referenced neuropathic pain signals transmitted through the spine to the brain from the damaged area and interpreted by the brain as pain. Neuropathic pain was, the doctor said, most commonly described by patients as a burning sensation.[50]
[50] TN 75 and 80-84
101 Under cross-examination Dr Koniuszko was also taken to the observations made in his earlier report dated 31 August 2010.[51] In short, the doctor appeared to agree with a number of propositions. Firstly, that nothing untoward had been revealed by the radiology obtained in 2009 after surgery and, secondly, following surgery Dr Koniuszko had expected a reduction in the plaintiff’s pain levels and in the severity of the strain injury by 2010.
[51] TN 78
102 Whilst, at first, Dr Koniuszko also agreed that in 2010 the chronic pain syndrome had accounted for most of the plaintiff’s symptoms, with further discussion of this issue, his evidence was that, currently, the chronic pain syndrome was at much the same level, whereas somatic pain had worsened. In giving evidence, Dr Koniuszko clearly distinguished between complaints of back pain or shooting pain generated by movement such as bending or compression of the nerve, which he classified as somatic pain and the burning sensation reported by the plaintiff, which the doctor classified as nerve pain or chronic pain syndrome.[52]
[52] TN 83-84
103 As I understood Dr Koniuszko’s evidence, he believed psychological factors influenced both the somatic condition and the chronic pain syndrome. Indeed, he agreed with the general proposition that it was difficult to disentangle the physical causes of pain from the psychological causes.[53]
[53] TN 80
104 Whilst accepting that he was not an expert in this field, the doctor clearly attributed the plaintiff’s chronic pain syndrome to “nerve pain” and he acknowledged a role for psychological factors, as well as the possibility that one or the other could be the dominant cause of pain.[54]
[54] TN 81
105 During re-examination, Dr Koniuszko attributed the plaintiff’s presentation to a combination of somatic and neuropathic pain and emotional instability, when he told the Court that the plaintiff’s back pain was “real” and she was suffering from: “chronic nerve pain, be it real or unreal. There’s a lot of literature now talking about chronic back pain actually being a real entity. She certainly does have emotional instability. So I’m sure the three components are there.”[55]
[55] TN 92-93
106 I did not, however, understand the general practitioner, who has treated the plaintiff for more than 30 years, to have concluded that non-organic factors were substantially responsible for the pain consequence reported by the plaintiff. Other, medical evidence including the evidence of the defendant’s specialists did not support a contrary conclusion.
107 There were a number of medico-legal assessments in 2014. Mr Polke reviewed the plaintiff on 3 April 2014, as did Dr Davison on 14 April 2014.[56]
[56] DCB 82a-h and 91a-h
108 Occupational physician, Dr Sillcock examined the plaintiff for the first time on 16 June 2014.[57]
[57] PCB 78F-Q
109 Having reviewed the plaintiff Mr Polke endorsed ongoing conservative treatment. Relevantly he confirmed his earlier view that the plaintiff did not have the capacity to perform her pre-injury employment duties, although he now thought she may be able to resume this position on a part-time basis so long as the plaintiff was allowed to change posture, sit part of the time and maintain restrictions on prolonged standing and sitting, repeated bending and heavy lifting.
110 In Mr Polke’s opinion the plaintiff was fit to perform the meat slicer duties to which she returned post-injury, subject to restrictions on heavy lifting, pulling and pushing and repeated bending. It was not clear from this report why the restrictions so advised were different from those already described. I also found Mr Polke’s current opinion that the plaintiff could work five hours per day, with a 15 minute break halfway, for five days a week, difficult to reconcile with the opinions expressed in his reports in May and June 2013. In the last mentioned reports, Mr Polke clearly contemplated much longer working hours, albeit in work where the tasks were rotated.
111 When re-examined by Dr Davison, among other things, the plaintiff apparently indicated she was feeling better since ceasing work. This was generally reflected in the better tolerances reported by her of up to 60 minutes for driving and sitting, up to 60 to 90 minutes for walking and standing and between 5 and 10kg for lifting.
112 At hearing, however, the plaintiff queried the suggestion that she had estimated a lifting tolerance greater than about 5kg.[58] Allowing for her history, I was inclined to the view that this was probably true. In any event, as we know from the report made, Dr Davison did not alter the permanent physical restrictions previously recommended by him in June 2013, which included a recommendation that the plaintiff avoid manual handling greater than 4.5kg in force or weight between mid-chest and mid-thigh height.
[58] TN 38
113 On this occasion, Dr Davison relevantly advised as follows:
· the plaintiff was permanently incapacitated for her pre-injury employment duties. As mentioned, the permanent medical restrictions on her employment were as previously advised by him in 2013;
· the plaintiff was incapacitated for any employment that required manual handling in the light, medium or heavy range but capable of performing the duties she performed subsequent to the injury. This no doubt referenced the meat slicing duties performed by the plaintiff prior to termination of her employment;
· in his opinion the plaintiff could work up to 20 hours per week provided a graduated return to work plan was arranged. Through this advice, Dr Davison appeared to indicate that 20 hours per week remained the maximum, although any future employer would need to offer a position that allowed the plaintiff to make a graduated return to working up to 20 hours on a regular basis. As mentioned, the plaintiff disputed the suggestion that she could regularly undertake part-time hours in excess of 16 hours per week, even if another employer were to offer a graduated return to work.
114 Dr Sillcock received copies of a range of materials, including the plaintiff’s affidavits sworn in 2011 and 2013, a number of medical reports from treating doctors and health professionals including Professor Bittar’s report, certificates of capacity for the period 7 April 2014 to 4 June 2014 and various vocational assessment reports. I will address the content of the vocational assessment reports and the issue of suitable employment also discussed in Dr Sillcock’s report and oral evidence in due course.
115 The results of the early CT and MRI imaging were available to Dr Sillcock through reading Dr Koniuszko’s report dated 31 August 2010.
116 Dr Sillcock obtained a detailed history. The salient features of her report and responses to specific questions are summarised as follows:
· pain management had improved since the plaintiff ceased working in 2013, although the plaintiff continued to experience low back pain, which worsened later in the day. Pain radiated from the plaintiff’s buttocks to her feet and she complained of an overall burning sensation. Pain was present all the time and was aggravated by constant bending and sitting;
· since stopping work the plaintiff had lost some of the weight she had gained;
· sleep had improved with regular medication, although pain still disrupted the plaintiff’s sleep;
· the plaintiff reported tolerances which included, a good standing capacity provided the plaintiff was able to move around, sitting for about 30 minutes depending on the chair, a good walking capacity and a driving tolerance up to an hour;
· medication consisted of daily doses of Tramadol, Panadol Osteo, Endep and the anticonvulsant, Topiramate, with Panadeine Forte used during the week for breakthrough pain;
· clinical examination revealed reduced movement of the lumbar spine and flexion of about one third of the normal range, extension was minimal due to pain and lateral flexion was about half of the normal range. This doctor also found a slight reduction in sensation over the lateral side of both legs;
· Dr Sillcock concluded that the plaintiff suffered the work-related lumbar disc prolapse at the L4-5 level. No doubt based on both the clinical examination and the plaintiff’s reports Dr Sillcock also noted residual, albeit minimal, radiculopathy;
· save for Mr Polke’s recent reports, Dr Sillcock’s view that the plaintiff was unfit for her pre-injury employment but fit for restricted part-time suitable employment reflected the medical opinion summarised so far. With some minor variations, the restrictions advocated by Dr Sillcock on lifting in excess of 5kg, on sustained or repetitive bending and on prolonged sitting or standing in one place and with allowance for changes in posture as required were also reflected in the other medical opinion;
· in response to specific questioning, Dr Sillcock, however expressed her opinion that the plaintiff was not fit to work for more than 16 hours per week;
· the plaintiff’s prognosis was, Dr Sillcock believed unlikely to change significantly in the foreseeable future.
117 Part of the attack on Dr Sillcock’s evidence was that her report had been prepared in haste in the days preceding the hearing and Dr Sillcock had wrongly believed that the plaintiff was involved in sandwich preparation after she returned to work. Cross-examination, nonetheless, revealed that Dr Sillcock had understood that the plaintiff’s duties involved meat slicing and at times cleaning the slicer at the end of the shift. In any event, in Dr Sillcock’s view there was little difference between the physical demands of meat slicing and of sandwich making.[59]
[59] TN 104-105
118 In summary, the evidence addressed so far indicated, firstly, likely work-related injury to the lower back involving disc prolapse at the L4/5 level, the symptoms of which had not fully resolved following surgery and, secondly, a likely substantial organic basis for the pain and disability of which the plaintiff continued to complain.
Mr Byrne’s evidence
119 As mentioned, an affidavit sworn by Mr Byrne was tendered. He was called for cross-examination. The affidavit and attachment contained evidence relevant to an understanding of the hours worked, the duties performed and the plaintiff’s without injury earning figure. Mr Byrne deposed to the following matters:
· following the plaintiff’s return to work she moved from a permanent to a casual day shift role working 4 or 5 days per week depending on work availability. Under cross-examination Mr Byrne agreed that post-injury the plaintiff had remained on night shift under the supervision of Production Supervisor, Anne Bartley until September 2010 when she moved to day shift under his supervision.[60] Notably, the plaintiff denied working for five days a week depending on the availability of work. Her evidence was that if she was asked to help she sometimes worked five days a week and, whilst her usual days of work were Monday to Thursday, occasionally this extra work had involved working on Friday;
[60] TN 130-131
· the plaintiff was not usually required to work on Fridays due to business requirements. Under cross-examination, the plaintiff’s evidence was that due to the restrictions on the hours she worked, she was not supposed to work Fridays and her hours on dayshift usually concluded by 12 noon if not beforehand. In short, the plaintiff worked limited hours spread over 4 days due to the medical restrictions imposed;
· the plaintiff’s duties as a casual largely involved taking 4 to 5 kg pieces of meat from the cool room by trolley to the meat slicer, slicing the meat and if required cleaning the meat slicer. When work permitted she was also required to help out by placing empty containers on the production line for filling. Under cross-examination the plaintiff said the meat was a 1kg portion. This was cut and placed in a tub, which she “walked” to the fridge. Whilst the plaintiff denied helping out on the production line was part of her job, she agreed she occasionally helped when asked.[61] Mr Byrne subsequently disputed the suggestion that the meat weighed only 1kg.[62] Allowing for the restrictions on heavy lifting, I could not be satisfied that the meat carried typically weighed up to 5kg;
[61] TN 41-42
[62] TN 134
· the plaintiff’s average weekly gross wage prior to the injury was $674.12 based on a rate of $17.74 per hour for a 38 hour week, plus 2 to 3 hours overtime paid at the same rate;
· as at February 2012 a comparable wage for a permanent employee was $18.25 per hour for a 38 hour week, that is $693.50 gross. Whether or not the rate mentioned was correct, the evidence of the rates paid to another employee after the expiration of the six-year window did not assist in determining the without injury earnings figure.
· by February 2012 permanent employees no longer worked overtime as this was performed by casuals. Again this evidence did not assist in determining the without injury earnings figure;
· although she was not required to work Fridays the plaintiff usually did when requested. The plaintiff’s response to this evidence again indicated that she would work Fridays when requested, if physically able to;
· the plaintiff’s hours were determined by how busy the defendant was, the absence of other employees and the weather/time of year. The latter because the defendant sold less meat, sandwiches and rolls as compared to pasties and pies in winter. At hearing Mr Byrne told the Court that because the plaintiff was a casual worker, work was allocated to her on a as needed basis, which meant if there was not enough work she went home before the 4 hours were up.[63] The plaintiff, who gave her evidence before Mr Byrne, challenged the proposition that her hours were determined by how busy the defendant was. Her evidence was that, despite any variations in the amount of orders placed, she sliced the meat and “if it got to where I started to reach my four hours and I wasn’t coping, Julie Carrerro was usually put to take over my job and finish the meat”.[64] According to the plaintiff she would do what slicing she could until she could not do any more and then go home. In the circumstances described, I was not satisfied that any foreshortening of the plaintiff’s hours whilst working as a casual employee had been due to fluctuations in the defendant’s business needs. If I am wrong in my understanding of this evidence, the plaintiff’s unchallenged evidence was that at times the hours worked were shorter than those offered due to her back condition;
[63] TN 129
[64] TN 43
· the plaintiff’s hourly rate as a casual was (as amended) $21.81 per hour. The plaintiff agreed this had been the rate at which she was paid;
· for the period 7 September 2011 to 20 February 2012 the plaintiff’s hours of work varied between 3.7 in the week of 21 December 2011 up to 23.1 hours in the week of 16 January 2012. The pay details history annexed to Mr Byrne’s affidavit indicated as much. Whilst the plaintiff was unable to recall the hours she worked in each week, her evidence was that if she was asked to work on Fridays or help by working extra hours, she would if she could. I took this to reference the plaintiff’s physical capacity to do the extra time;
· in the period between 4 July 2012 to the period ending 8 May 2013 the plaintiff’s hours varied from 7.92 hours in the period ending 15 August 2012 to 27.17 hours in the period ending 6 March 2013. Again this evidence accorded with the pay details history but, as with any selection of a specific period, the record did not explain the reasons for any variation in hours worked;
· in the week ending 8 May 2013 the plaintiff worked 8.25 hours. In that week the plaintiff took Monday as annual leave, Tuesday was taken as sick leave and, as was usual the plaintiff did not work on the Friday;
· in the five week period from 27 February 2013 to 27 March 2013 the plaintiff worked 20.17, 27.27, 21.09, 16.74 and 21.07 hours. This was the week during which other staff members were absent overseas. The plaintiff told the Court that Mr Byrne asked her to fill in. Her evidence was that she agreed to do this work with extra break time but only whilst the employees were away because she believed it would be too hard to continue.[65] Under cross-examination, Mr Byrne quibbled with the suggestion that there had been a significant expectation of the plaintiff that she would take on the extra work where 2 experienced staff were away overseas for a protracted period. I was, nonetheless, satisfied that there was such an expectation, which the plaintiff had agreed to meet, subject to the defendant allowing extra breaks. I infer that if these had been available, the defendant would have used other staff to fill-in, who did not require extra breaks and were likely to complete the shift without any problems;
· review of the defendant’s operational requirements had led to the decision that the plaintiff’s position as a casual day production worker was no longer required. Under cross-examination, Mr Byrne agreed that the real problem when the plaintiff was terminated was that, given her restrictions, the defendant, an organisation that makes sandwiches and employs about 200 people, did not have a suitable job for her.[66]
[65] TN 46
[66] TN 136-137
120 Under cross-examination, Mr Byrne acknowledged he understood the plaintiff’s hours had been limited to 16 hours per week. He agreed with the following propositions:
· when the plaintiff commenced day shift in September 2010 she was working 3 hours, 3 days per week, she was being treated with a great deal of consideration by the defendant and the defendant was looking after her;
· the plaintiff was a good, reliable worker;
· the defendant was keen to ensure that the plaintiff had light and suitable work. This task fell to Mr Byrne, as did the task of ensuring that the plaintiff not work too many hours;
· Mr Byrne did not keep a tally of the hours the plaintiff worked. The procedure was that if she worked extra hours this was because Mr Byrne requested this (“definitely”), not because the plaintiff volunteered and these hours were additional to the four hours she was supposed to work (“I’d ask Kay if she can continue”[67]). As Mr Byrne explained, if the plaintiff was “up to it” she did the extra hours requested and did the extra work to the best of her abilities;
[67] TN 133
· the plaintiff was not required to work at any pace and, if required to work more than 4 hours, she could take a third rest break;
· very occasionally, as claimed by the plaintiff she took a day off because she could not work;
· from time to time the plaintiff had not finished a shift because she was sore;
· providing suitable employment in the kitchen for a person with the restrictions the plaintiff worked under (“minimal lifting, no bending, working for four hours, rest breaks as required”[68]) could be difficult;
· if the plaintiff had been able to do this, he would have given her much more work during the period 27 February 2013 to 27 March 2013 because the defendant was covering the absence of two workers.
[68] TN 135
121 Mr Byrne was taken to Exhibit P1, the defendant’s record of the hours work in the financial years 2011 to 2013 inclusive. Among other things, Mr Byrne agreed that, as shown, the plaintiff’s hours had varied; sometimes she had been able to accommodate the extra hours requested of her; sometimes she had not been physically able to perform up to 16 hours per week; the plaintiff had done her best and, perhaps most importantly in this case, the average hours worked of 15.3 hours per week in the year ending 30 June 2013 (extrapolated over 52 weeks), was a: “pretty fair reflection of where (the plaintiff) was over that 12 months”.[69]
[69] TN 139-140
122 I formed the view it was unlikely that, the variations in the hours worked over the period 2011 to 2013 were mainly based on fluctuations in the amount of work offered the plaintiff. Based on the evidence, including the various concessions made by Mr Byrne at hearing, ongoing impairment of the plaintiff’s back probably best explained why the plaintiff, a full-time permanent employee at the date of injury, limited her duties, accepted changed employment status and worked significantly reduced hours in the 5 plus years to July 2013.
The plaintiff’s capacity to work up to 16 hours or more per week
123 At hearing both Dr Koniuszko and Dr Sillcock were taken to Exhibit P1. Neither doctor was moved to alter their opinion about the plaintiff’s work capacity, having also considered factors such as the pattern of hours worked, the circumstances under which the plaintiff had worked additional hours, particularly between February and March 2013 and the evidence that the plaintiff worked with difficulty.[70]
[70] TN 76-77 and 98-100
124 We know that on 2 April 2013 the plaintiff attended her doctor complaining of significant pain (“Kay, WorkCover, missed tablets, back pain ++, out of tablets, she was given some Tramadol, continue four days, 3 to 4 hours. No lifting, no bending. Seating as required”[71]). However, Dr Koniuszko agreed that the plaintiff had not complained about working the extra hours until either late last year or early in 2014, when the plaintiff advised him she had required more medication to work the extra hours and had not continued to do so due to severe pain.[72]
[71] TN 78
[72] TN 90-91
125 As Dr Sillcock noted, she had been informed by the plaintiff that extra hours had exacerbated pain levels and she believed the plaintiff could only manage 16 hours per week on a sustainable basis.
126 Under cross-examination, Dr Sillcock explained how she arrived at the figure of 16 hours per week: “Well, that figure was picked because that was what she was able to sustain before she lost her job. I mean, this lady was working until she lost her job for reasons beyond her control, she was made redundant. If she hadn’t been made redundant she probably would have still been working 16 hours per week. It is to some extent an arbitrary figure, but she was working 16 hours per week consistently and was coping with that. When she did work the extra hours, both in terms of extra days and extra hours per day, she had increased pain and was having increasing difficulty coping with that work. So that was how I reached the figure of 16 hours per week.”[73] In giving this evidence, the occupational physician acknowledged that the plaintiff’s subjective account of the level of her pain had been an important consideration. However, as she later explained during questioning about various suitable employment options, the pattern of work shown by Exhibit P1 and the evidence as a whole had not demonstrated to Dr Sillcock that the plaintiff had the capacity to work more than 16 hours per week on a sustained basis.[74]
[73] TN 107
[74] TN 119-121
127 Exhibit P2 is a copy of a Certificate of Capacity issued by Dr Koniuszko on 28 May 2013. The certificate, among other things, provided the diagnosis (lumbosacral strain, disc herniation and nerve root irritation[75]), other details (pain syndrome), the plaintiff’s capacity for work (fit for modified duties from 28 May 2013 to 25 June 2013) and the work restrictions (4 days per week, 3 to 4 hours per day, no lifting, avoid bending of spine and seating as required).
[75] TN 83
128 In evidence in chief, Dr Koniuszko told the Court that certification of the plaintiff’s hours (16 hours per week) had remained “fairly constant” between 2011 and 2013.[76] However, on 25 June 2013 the doctor said he had certified the plaintiff to work 4 hours per day, 5 days per week because his patient had indicated she wanted to try “a bit more work”. When questioned about whether the plaintiff had returned to see him three days later on 28 June 2013, the doctor replied: “She did, yes”.
[76] TN 72
129 Dr Koniuszko explained the plaintiff had not been able to “handle her work” due to pain. As a consequence, the certification of her capacity was changed back to the original certificate (“We changed it back, yes”).[77]
[77] TN 72-73
130 Further questioning, however, revealed that the doctor had recorded in his notes the attendance on 25 June 2013 (“Back no change. Pain with exertion. Just managing four hours. Still pain in back and burning in legs.. Avoid bending of spine, seating as required. Examination tender L3-4, forward flexion 30 degrees, extension five degrees, burning legs plus, plus. Tramal SR 200 twice a day (the transcript did not record the next item properly) twice a day. Review in four weeks”[78]).
[78] TN 73
131 Whilst the doctor agreed he had reviewed the plaintiff on 28 June 2013, it became apparent that no record of this attendance was available at hearing. At best the doctor’s evidence was based on his recollection of the attendance: “Based from what I recall, Kay said she couldn’t handle the work at those sorts of hours, so we changed her back to her normal four hours, four days, four hours”.[79]
[79] TN 73
132 When under cross-examination, Dr Koniuszko was asked to show counsel the note made of the attendance on 28 June 2013, he could not locate this record. Whilst the doctor accepted the possibility that no such note had been made, [80] I did not understand the doctor to indicate that the attendance had not occurred. Rather, Dr Koniuszko, who agreed that the next note had been made on 15 July 2013, appeared to believe that any note of the attendance was either overlooked when preparing the reports or had not been included in the plaintiff’s record (“if I could sort of say something, because we had all these reports to do, at times I didn’t have Kay’s records in front of me, so it’s possible it could have been missed. She could have come in and it may not have been put into the notes. That’s possible”[81]).
[80] TN 87
[81] TN 87
133 On balance I could not be satisfied that any note of the attendance on 28 June 2013 had been made. I, nonetheless, found the doctor to be a credible witness and, in the circumstances described, the explanation given was plausible. In reaching this conclusion, I took into account, among other things, the evidence of the hours worked prior to termination of the plaintiff’s employment in the weeks ending 17 April to 29 June 2013. As we know from Exhibit P1, in this 12 week period, the plaintiff worked less than 16 hours each week.
134 If I am correct in my understanding of the evidence contained in the defendant’s records, the hours worked in any week after 10 April and before 29 June 2013 were as low as 8.25 hours for the week ending 8 May 2013 and 4 hours for the week ending 25 May 2013 but as high as 14.76 hours for the week ending 29 June 2013. The average hours worked was in the order of 12.4 hours per week. Accepting for the moment that on 25 June 2013 the plaintiff had sought certification to work 20 hours per week, this was in circumstances where the plaintiff had consistently worked much shorter hours in the months beforehand. Notably, the plaintiff was not cross-examined about the attendances on Dr Koniuszko in June 2013 or the reason for obtaining certification for longer hours, however, briefly.
135 In summary then, it was common ground that the plaintiff was not fit for full-time unrestricted employment or her pre-injury employment. She has a likely part-time capacity for restricted employment. The defendant, however, disputed the plaintiff’s claim, directly supported by the evidence of the general practitioner and Dr Sillcock, that injury-related impairment permanently limited the plaintiff’s part-time working hours to up to 16 hours per week.
136 The defendant submitted the plaintiff had the capacity to work 20 hours or more in suitable employment. The argument advanced was that for some years after returning to work the plaintiff had demonstrated an ability to earn from time to time at casual rates in a real job for 20 hours or more per week. Based on casual rates, the plaintiff exceeded the threshold set by the Act. Counsel for the defendant, however, acknowledged that the plaintiff’s loss of earning capacity claim would succeed should the Court find her capacity limited to up to 16 hours per week.[82]
[82] TN 205-206
137 The plaintiff submitted she could not reliably sustain working hours of more than 16 hours per week. On balance I was satisfied that the plaintiff had established that her capacity for light work was permanently restricted to working in suitable employment for up to 16 hours per week. In reaching this conclusion, I preferred the evidence of the treating doctor, who was very well placed to assess his patient’s capacity in the years since the injury.
138 I also gave greater weight to Dr Sillcock’s evidence. Her expert evidence was tested by cross-examination. In contrast to this, I note neither Dr Davison nor Mr Polke had the benefit of seeing Exhibit P1. The letters of instruction sent to them in March 2014 contained an excerpt from this document with the defendant’s summary of various background matters. The impression conveyed by the instructions given was based on a version of the evidence favourable to the defendant (“We reiterate that the employer says that the plaintiff would work these hours if offered and indeed worked more than 19.19 hours per week in six weeks during the period 1 January 2013 to 8 May 2013. The number of hours she worked were not dictated by her medical restrictions but by the number of hours offered to her”[83]). This observation is not intended as a criticism of the defendant’s solicitors who no doubt put their client’s instructions to the medico-legal experts. It simply shows that these doctors did not have the opportunity the Court had to consider all of the evidence in a broader context.
[83] Exhibit P4 and Exhibit P5
139 In preferring the plaintiff’s medical evidence, I was further influenced by, firstly, the absence of any clear explanation for the shifts in Mr Polke’s evidence from having not questioned the hours worked in February 2012 (3 to 4 hours, 4 days per week) to recommending more than double the average hours worked in 2013 (up to 30 hours on rotated duties) and then dropping back to 5 hours per day, five days per week with 15 minute breaks half way. Secondly, the recommendation by Dr Davison that the plaintiff could work up to 20 hours per week on a graduated return to work plan suggested that in April 2014 the plaintiff was not fit to return to up to 20 hours work per week and, in the future she would require an employer who offered a position in alternative employment that permitted a graduated return to work. None of the positions cross-examined on as suitable employment for this plaintiff were said to offer this sort of accommodation, which, as the Evidex vocational assessment report dated 21 May 2014 confirmed, was usually part of an occupational rehabilitation return to work program for injured workers.[84]
[84] PCB 81P-S
140 If I am correct in my understanding of the plaintiff’s likely work capacity for the foreseeable future, as mentioned, the defendant has conceded the plaintiff’s case in respect to her loss of earning capacity consequence must succeed. However, for the sake of completeness I have also considered the plaintiff’s case based on an analysis of the without injury earning figure where hypothetically the plaintiff’s capacity was up to 20 hours per week.
Loss of earning capacity consequence
141 I have already set out the statutory requirements for establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. The ultimate concern was whether the plaintiff had a physical capacity for work which, if exercised in suitable employment, would result in her earning more than 60% of the without injuries earnings figure, the latter determined in accordance with section 134AB(38)(f).
142 In 2007 the plaintiff was a full-time permanent employee working night shift for 38 hours per week. She was paid at a flat rate. The plaintiff also worked overtime paid at the flat rate. The Employers Claim Report, as did the affidavit of day shift Production Manager, Mr Byrne, indicated that overtime was approximately 2 to 3 hours per week.[85]
[85] 31-32
143 The defendant admitted, firstly, that in the financial year ending 30 June 2006 up to 1 June 2007, the plaintiff was paid at the rate of $17.06 per hour. From that date up to and including the date of injury, the plaintiff was paid at the higher rate of $17.74.
144 The Workplace Agreement commencing 1 June 2007 was tendered by the plaintiff.[86] This document and the later Production Enterprise Agreement were contained in the materials comprising the Defendant’s Court Book.
[86] Exhibit P6
145 In re-examination, among other things, the plaintiff confirmed that, pursuant to the Workplace Agreement she had been paid at the rate of $17.74 per hour; that is the rate applicable to the classification, Relief Sales & Production Supervisor.[87] The plaintiff was not able to recall the lesser rate at which she was paid pursuant to an earlier agreement applicable from 2005.
[87] TN 63 and Exhibit P6, 106
146 Mr Byrne initially agreed with the evidence concerning the plaintiff’s classification and with the further proposition that under the Production Enterprise Agreement in 2010, had the plaintiff been employed on night shift, she would have been paid $20.82 per hour at the rate of $17.72 plus the penalty loading for a supervisor working at night. However, during re-examination Mr Byrne appeared to contradict his earlier evidence when, among other things, he indicated he had no idea of the classification applicable to the plaintiff under the Workplace Agreement or the later Production Enterprise Agreement.
147 The calculation of the without injury earnings figure was not a straightforward matter.[88] In part this was due to the plaintiff’s failure to clearly articulate her approach to the calculation of this well before final submissions.
[88] See Barwon Spinners [23], HayhillPty Ltd vHodge [2006] VSCA 194, [5] and Acir v Frosster Pty Ltd [2009]
VSC 454, [160]-[167]
148 To paraphrase the legislation, this Court was required to measure the plaintiff’s loss of earning capacity by comparing her gross after injury earnings with the gross income expressed at an annual rate the plaintiff was earning or was capable of earning from personal exertion or would have been capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflected the plaintiff’s earning capacity had the injury not occurred.
149 Notably, for the years ending 30 June 2011, 2012 and 2013, the plaintiff’s after injury gross earnings with the defendant were $15,711, $17,743 and $16,223 respectively.[89]
[89] PCB 102
150 In this case, using 26 November 2007 as the date of injury, the six-year window covered the period November 2004 to November 2010 and impacted the financial years ending 30 June 2005 to 30 June 2011.
151 Based on the plaintiff’s Summary of Earnings, it was common ground that the $36,145 gross earned in the financial year ending 30 June 2007 represented the highest gross earnings during the six-year window.[90] The defendant submitted this figure was the most reliable indicator of the plaintiff’s without injury earnings figure. It argued that the plaintiff had shown a capacity to work as a casual at a higher rate of pay after returning to work.
[90] PCB 102 and DCB 261
152 The plaintiff’s taxable income was not, however, the end of the enquiry. As other evidence suggested, this figure might not represent the gross income the plaintiff was capable of earning had the injury not occurred. In this regard, the plaintiff relied on the probable earnings for a permanent night shift worker in the three years after injury. This, she submitted, was greater than the earnings post-injury after the defendant moved her to casual employment. The comparison using permanent employment as a yardstick was appropriate because as a casual the plaintiff worked only 49 weeks in the year, albeit at higher rates.
153 The plaintiff’s evidence was that, but for the injury, she had intended to continue her permanent night shift employment until at least the end of the six-year window. Moreover, it should be assumed that the flat rate would have been paid in accordance with the Workplace Agreement or the later Production Enterprise Agreement. The latter the defendant admitted came into force from 9 September 2010.[91] Among other things, this agreement provided for payment of a supervisor on night shift at the rate of $20.82 per hour.[92] This Agreement also provided for 3% increments on wages and allowances on the anniversary of the date of the agreement.
[91] Exhibit P7
[92] Exhibit P7, 118
154 Based on this evidence, with increments in her earnings and working as a permanent employee, arguably the plaintiff was capable of earning without injury, at the rate of $20.82 per hour within the six-year window and this rate most fairly reflected her earning capacity. Annualised this rate would produce gross earnings of $41,140 for a 38 hour week. 60% of this figure was $24,684 or $474.69 per week.
155 Mr Byrne’s evidence indicated that by February 2012 permanent employees were no longer performing overtime. Accordingly, with allowance for overtime of, say only 2 hours, this figure would rise to $43,305 gross. 60% of this figure was $25,983 or $499.67 per week.
156 The approach to calculation of the without injury earnings agitated by the plaintiff in final submissions was based on the percentage increase in the hourly rates paid during the six-year window. The rates paid increased from $17.06 to $17.74 on 1 June 2007 and on 9 September 2010 to $20.82. These increments represented increases of 3.986% and 17.36% respectively. It was submitted that during the six-year window, but for the injury, the plaintiff would have earned a total increase of 21.013% of the gross income earned in the financial year ending 30 June 2007 ($36,145). In short, the plaintiff submitted the figure that most fairly reflected her earning capacity was $43,739 or $841.13 per week. 60% of this figure was $26,242.84 or $504.67 per week.
157 We know that, at the date of termination of her employment, the plaintiff was paid at the rate of $21.82 per hour as a casual employee. This represented $436.60 for 20 hours per week or for 49 weeks, $21,393.40. On this basis, the plaintiff’s application still succeeded, had I not already been satisfied that her likely earning capacity was up to 16 hours per week, rather than the 20 hours per week postulated by the defendant.
The plaintiff’s skills and the vocational evidence
158 As mentioned, the plaintiff has not been successful in finding alternative employment following retrenchment in July 2013.
159 The plaintiff conceded she was capable of performing suitable alternative employment on a part-time basis for up to 16 hours per week. She has, however, unsuccessfully sought alternative employment and she has turned her mind to developing additional skills such as computer skills.
160 The plaintiff’s evidence, Dr Sillcock’s evidence, particularly under cross-examination,[93] and the vocational assessment material (the Evidex reports dated 19 and 21 May 2014 and the Flexi Personnel report dated 18 June 2014[94]), all suggested that, even with further training, this well-motivated plaintiff was unlikely to improve her physical capacity or increase her ability to reliably work more than up to 16 hours per week in suitable alternative employment.
[93] TN 118-122
[94] PCB 81A-U
161 As Dr Sillcock explained during re-examination, in her opinion the plaintiff did not have the capacity to do alternative jobs, whether in more sedentary work as a book keeper or in product assembling, for more than 16 hours per week on a sustained basis. In giving this evidence Dr Sillcock took into account the plaintiff’s uncontested evidence that before termination by the defendant, from time to time, pain prevented completion of 4 hours of work. On these occasions the plaintiff had approached Mr Byrne to arrange for another employee to finish the task she had been performing.[95]
[95] TN 124-127
Conclusion
162 I was satisfied that the plaintiff had established a permanent loss of earning capacity productive of financial loss of 40% or more because any retained capacity and/or her unreliability in performing suitable employment probably would not take her over the statutory threshold for the foreseeable future.
163 Whilst I accept that the plaintiff’s background would not preclude further occupational rehabilitation or retraining for alternative suitable employment, on the evidence summarised the plaintiff satisfied me that for the foreseeable future any rehabilitation or retraining was unlikely to improve her physical capacity for or increase her reliability in any employment to which she may be otherwise suited in accordance with the definition contained in section 5 of the Act.
164 Accordingly, applying the test under the Act, due to likely permanent work-related impairment of the plaintiff’s lower back:
· the plaintiff has established a loss of earning capacity of 40% or more which is likely to continue permanently;
· the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of body function, her loss of earning capacity is fairly described as more than significant or marked and as being at least very considerable.
165 As the plaintiff is entitled to leave in respect of loss of the earning capacity consequence to which the impairment of her lower back continues to make a material contribution, it is unnecessary to separately determine the pain and suffering component of the application.
166 I propose to make an order granting leave to the plaintiff to commence proceedings in respect of pain and suffering and loss of earning capacity damages for injury arising out of or in the course of the plaintiff’s employment with the defendant, in particular for injury suffered to her spine on or about 26 November 2007.
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