Smith v Snack Brands Australia
[2015] VCC 396
•1 April 2015
nb
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
SERIOUS INJURY LIST
Case No. CI-14-04946
| PRAVEEN SMITH | Plaintiff |
| v | |
| SNACK BRANDS AUSTRALIA | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 & 19 March 2015 | |
DATE OF JUDGMENT: | 1 April 2015 | |
CASE MAY BE CITED AS: | Smith v Snack Brands Australia | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 396 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords: Application pursuant to s134AB of the Accident Compensation Act 1985 under paragraph (a) of the definition of “serious injury” – defendant conceded that the plaintiff had suffered an impairment with serious pain and suffering consequences – issue as to whether plaintiff had suffered serious loss of earning capacity consequences.
Legislation Cited:
Cases Cited:
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr C O’Sullivan | Slater & Gordon |
| For the Defendant | Mr R Kumar | Russell Kennedy |
HER HONOUR:
1 The plaintiff applies, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), for leave to commence proceedings for damages in respect of an injury to her cervical spine arising out of or in the course of or due to the nature of her employment with the defendant on 29 September 2008. The plaintiff relies upon paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act. Although the plaintiff’s application sought leave to commence proceedings for both pain and suffering and loss of earning capacity damages, the defendant conceded immediately before the commencement of the hearing that the court should grant leave in relation to pain and suffering damages. Accordingly, the only issue for the court’s determination is whether or not leave should be granted, also, to bring proceedings for loss of earning capacity damages.
Background
2 The plaintiff is presently aged 50 years, having been born on 1 October 1964 in Fiji. After completing school in Fiji, she worked as a receptionist and moved to Australia in 1989 at the age of 24 or 25 years. In Australia, prior to commencing work with the defendant, she worked at K-Mart as a cashier on a casual basis and then undertook work as a supervisor/kitchen hand at Warburton Health Resort. Her curriculum vitae reveals what would appear to be other short-lived process worker/packing jobs prior to her commencing work with the defendant as a machine operator on 17 May 2004.[1]
[1]Defendant’s Court Book (“DCB”) 276
3 The plaintiff’s work with the defendant involved regular lifting of heavy rolls of film and bag formers for the purpose of setting up and working machines which packed potato crisps. On 29 September 2008 she was lifting a roll of film from a high shelf when she felt a sharp pain in her upper back and neck. She reported the pain to her employer and was sent to the company physiotherapist for treatment. She continued to undertake her normal duties at work, but found that she had pain in her neck which travelled down her left arm.
4 She saw her general practitioner, Dr Hill, who organised for a CT scan of the cervical spine to be undertaken on 18 December 2008. This showed mild diffuse disc bulges from C2-3 to C5-6. At C6-7 level there was a focal left posterolateral disc protrusion which was reported as causing probable impingement on the exiting left C7 nerve root. The plaintiff completed a WorkCover claim form and went off work. She was referred by Dr Hill to Mr Chan, neurosurgeon, who, in January and April 2009, arranged further MRI scans of the plaintiff’s cervical spine. He noted that the MRI scan on 21 April 2009 showed the left C6-7 disc protrusion with left C7 nerve root compression, along with multilevel degenerative disc disease and cervical kyphosis. He also noted that there was a C5-6 asymmetric disc bulge towards the right C6 nerve root with questionable compromise of the right C6 nerve root and that this had shown some progression compared to the previous films.
5 Mr Chan suggested surgery on only the C6-7 level first as her main symptoms down her arm indicated left C7 radiculopathy, although she had been reporting worsening right shoulder ache and lower neck pain.
6 On 30 April 2009, Mr Chan performed surgery upon the plaintiff. This comprised anterior cervical microdiscectomy, bilateral C7 rhizolysis and a C6-7 anterior cervical interbody fusion with internal fixation. It would appear that the plaintiff had a good result from her surgery in that her left arm symptoms were relieved, but she found that, following the surgery, the pain in her right shoulder became more severe.
7 She underwent physiotherapy treatment and, in August 2009, began a graduated return to work. She was initially on light duties, which involved packing bags of potato crisps into boxes, but ultimately returned to full-time hours and full duties. It would appear that this occurred after Dr Hill issued a certificate dated 29 September 2010, that from 30 September 2010 the plaintiff was fit for normal duties “except for no heavy lifting. Rest periods if required due to pain”.[2]
[2]DCB 280
8 Upon her return to full duties, although the plaintiff had to lift rolls of film, the defendant had brought in a lifting machine to help to lift and align the roll with the machine upon which she was working, and this made lifting a little easier.[3] The plaintiff stated that, by this stage, she was able to undertake cooking and bathroom cleaning and laundry tasks and general cleaning, but her daughter did the vacuuming and her partner mowed the lawns.[4]
[3]Plaintiff’s oral evidence, Transcript (“T”) 27-28
[4]T30
9 The plaintiff’s evidence is that she continued to get pain in her right arm and shoulder and neck and, although she performed her normal duties, she did so with pain. She stated that she did not declare such pain to the defendant because she was concerned that she would lose her job.[5] She stated that she went to physiotherapy about once per fortnight and took a number of sick days without going on WorkCover. Ultimately, she found that physiotherapy was not helping and, maybe once or twice a week, she would go home early if she was sore and not feeling well and, perhaps, once a fortnight she would have a half day off.[6]
[5]T33
[6]T34-35
10 Under cross-examination, the plaintiff agreed that she had reported to Dr Gary Davison, who had examined her on behalf of the defendant in August 2010, that she no longer experienced pain in the left shoulder girdle or left arm or sensory disturbance, and her neck movements were not restricted. However, she found that if she packed for more than 45 minutes she felt muscle soreness in the triceps region bilaterally.[7]
[7]T29-30
11 She stated that she worked on with pain because she was a single mother and she needed to work. However, in March 2012 she saw Dr Hill and obtained a certificate which noted aggravation of her neck problem and the need for rest and anti-inflammatory medication. This certificate stated that she was fit for modified duties from 7 March 2012 until 6 April 2012 with the restriction being “not to spend longer than 30 minutes at a stretch packing”.[8]
[8]DCB 281
12 The plaintiff stated that she had asked for lighter duties, but there was nothing lighter that they could give her at the defendant’s workplace. Accordingly, apart from that one month where she was on those restrictions, she continued to undertake normal, unrestricted duties until she was made redundant when the factory closed down in July 2012.
13 After the plaintiff was made redundant, she quickly obtained work with Yarra Valley Snack Foods, performing similar duties. She commenced that job as a packer/machine operator on 9 July 2012.
14 Under cross-examination, she agreed that in her application for this job she had not revealed the presence of any injuries which might impact upon the full use of her limbs and the ability to lift up to 22 kilograms. She also agreed that she had indicated in the application that she was not suffering any condition that may adversely affect her physical or psychological capacity and she was not taking any medication that might affect her physical or psychological capacity to work.[9] The plaintiff stated that she made these declarations because she believed that, otherwise, they would not employ her, but, in fact, she was continuing to have problems for which she took Nurofen and Panadol during the day and Mobic at night.
[9]DCB 285 ff
15 The plaintiff was employed with Yarra Valley Snack Foods on a casual basis and agreed that she generally worked over 30 hours per week. However, in addition to having ongoing neck symptoms, the work caused her to develop a frozen right shoulder and she found that she was unable to continue to work. She stated that her neck and right shoulder were the reasons for her ultimately ceasing such work.[10] In fact the payslips for this employment show that she commenced on 5 July 2012 and ceased on 3 October 2012. In the last two weeks of her employment the plaintiff worked only 19 and 15.75 hours respectively compared to previous weeks which were well in excess of 30 hours save for the first week which was only 21.25 hours.[11]
[10]T50-51
[11]DCB 287-289
16 The plaintiff underwent hydrodilatation of the right shoulder on 9 January 2013 and, ultimately, the shoulder “came good”. However, she was referred back to Mr Chan in February 2013 because she had ongoing pain in her neck and both shoulders, with symptoms of paraesthesia in the fingers of both hands.
17 In a report dated 4 September 2013, Mr Chan noted that he saw the plaintiff on 12 February 2013 and when she returned for review on 23 April 2013, she was complaining of bilateral cervical brachialgia, worse on her left than right, and this was associated with paraesthesia in her fingers. He also noted that an MRI of her cervical spine on 4 March 2013 showed the previous surgery at C6-7 level, but, also, that at C5-6 level there was a moderate right foraminal stenosis and a severe left foraminal left stenosis. He further noted a one millimetre retrolisthesis of C5 on C6 and that a bone scan on 6 March 2013 showed features of ongoing bone remodelling at C6-7 level with mildly increased activity.
18 Mr Chan expressed the opinion that, although the plaintiff’s earlier surgery had resulted in a bony union at C6-7 level, the plaintiff’s bilateral cervical brachialgia was likely to be related to her bilateral C5-6 foraminal stenosis due to aggravation of that adjacent segment. He organised for her to undergo CT-guided bilateral C5-6 transforaminal cortisone injections, but these did not result in significant improvement of her symptoms. He therefore discussed the option of extending her decompression and fusion to C5-6 level.
19 The plaintiff has not undergone further surgery to her neck. In her most recent affidavit sworn on 2 February 2015, she stated:
“I did not want to undergo further injections or surgery because they have not provided any lasting benefit to me and I am scared about the potential risk of further neck surgery such as paralysis. I’ve chosen for now to continue with using painkilling and anti-inflammatory medications. Mr Chan also discussed with me undergoing a neck traction performed by a physiotherapist. I’m waiting for a referral to that procedure and I’m feeling nervous about undergoing it.”[12]
[12]Paragraph 8, Plaintiff’s Court Book (PCB) 13
20 Under cross-examination, the plaintiff stated that, after a recent medico-legal examination by Professor Bittar, who advised her against the traction treatment, she had changed her mind and no longer wanted to undergo it. She stated that Professor Bittar also advised her against “jumping straight into surgery” and suggested that she try alternative things before going into surgery again.
21 She was asked “And so you’re not ruling out surgery?” and she answered “Not yet no, I don’t know,”[13] she had not made an appointment to see Mr Chan and stated “I’m not sure myself what I want to do”. She stated that, at this stage, she was just continuing to manage her symptoms with medication.[14] She takes two Nurofen and two Panadol every morning and takes five milligrams of Endone every night to sleep. In addition, on average, she suffers a flare-up of pain in her neck/left arm twice per week and she takes Endone on those occasions for the severe pain. She has been taking Endone for the last two years and, if she takes it during the day, she then has to go and sleep for four or five hours. She also finds it difficult to wake up in the morning because of Endone and does not wake up before lunchtime. In addition, she takes an anti-depressant, Dothep, and had been referred by her general practitioner for psychological counselling in July 2014 because she was finding it difficult to deal with her incapacity for work.
[13]T54
[14]T55
22 The plaintiff has ongoing pain in the neck and left arm, and the numbness in her ring and index fingers has remained the same. She states that her current pain is worse than what it was when she worked for the defendant and, over the last three years, her condition has got worse. She does not believe that she could do the work that she was doing for the defendant now.[15] She can hold her head in a fixed position for only about five minutes, and if she manually had to hold a telephone up to her ear, she could only do it for about 10 minutes. She cannot sit at a computer for longer than 10-15 minutes.[16]
[15]T74-80
[16]T72-73
Issues between the parties
23 Mr Mighell of senior counsel for the plaintiff, submitted that, on the whole of the evidence, the plaintiff is totally incapacitated for work.
24 Mr Kumar, on behalf of the defendant, submitted that the plaintiff had not succeeded in establishing serious loss of earning capacity consequences of her impairment because of the following:
(i) Her current problem due to compression of the C6 nerve root had only arisen within the last couple of years. In her oral evidence, the plaintiff indicated that she had not ruled out surgery and Mr Chan had also suggested conservative options of traction and other neck exercises and cortisone injections. Accordingly, the court could not be satisfied that any current symptoms impacting upon her capacity to work are permanent.
(ii) In the event that the court is against the defendant in relation to submission (i), then the opinions of the Medical Panel, Dr Davison and Associate Professor Love should be accepted, along with that of Mr Chan as to treatment options which may improve her symptoms. Hence, the court should find that the plaintiff is not totally incapacitated, but, rather, capable of a graduated return to work in suitable employment. Accordingly, the court could not be satisfied that the plaintiff suffers loss of earning capacity consequences which are serious within the meaning of s134AB(38) of the Act.
The medical evidence
25 Although some medical practitioners who examined the plaintiff on behalf of the defendant comment on some “mild pain behaviours” and a “level of impairment greater than would be expected”[17] and some “functional features” of a non-anatomical nature,[18] there is uniformity of medical opinion that the plaintiff has an organic basis for her symptoms. This organic basis comprises the following:
[17]Dr Davison in his report dated 18 December 2014, DCB 35 & 36
[18]Medical Panel Reasons for Opinion, 25 September 2014, DCB 95 & 96
26 (i) Aggravation of pre-existing cervical spondylosis. I here note that the first CT scan of her cervical spine taken after the injury on 18 December 2008 noted loss of normal cervical lordosis and mild diffuse disc bulges at the cervical levels from C2-3 to C5-6. Following an MRI scan on 21 April 2009, Mr Chan stated, that, leaving aside her C7 radiculopathy (for which he suggested surgery), “her neck ache and right shoulder ache may be a reflection of underlying degenerative disc diseases, cervical kyphosis and muscular strain, or may be a reflection of the progression of the C5-6 disc bulges”.[19]
[19]Report 21 April 2009, PCB 35
27 (ii) A C6-7 disc protrusion. This is described in the report of an MRI scan on 21 January 2009 as resulting in significant compromise of the exiting left C7 nerve within the foramen.[20] Notwithstanding that the report of a later MRI scan on 21 April 2009 described the size of the protrusion as having substantially decreased so that the compromise to the exiting left C7 nerve was minor,[21] when Mr Chan performed his surgery 30 April 2009, he removed a large C6-7 disc extrusion.[22]
[20]MRI scan 21 January 2009, DCB 7A
[21]MRI scan 21 April 2009, DCB 7B
[22]Report 4 September 2013, PCB 41
28 (iii) Injury to the C5-6 disc. This was described by Mr Chan in his report dated 21 April 2009 (following the MRI scan on that date) as being “a C5-6 asymmetric disc bulge bulging towards the right C6 nerve root with questionable compromise of the right C6 nerve root. This has shown a slight progression compared to previously”. By 4 March 2013, an MRI showed that at C5-6 level there was a moderate right foraminal stenosis and a severe left foraminal stenosis. A dynamic cervical x-ray on 6 March 2013 showed a one millimetre retrolisthesis of C5 on C6. As previously stated, by that stage, Mr Chan considered the plaintiff’s bilateral cervical brachialgia was likely to be due to aggravation of adjacent segment bilateral C 5-6 foraminal stenosis. He considered that this was causing bilateral C6 radiculopathy and that she was an appropriate candidate for further cervical surgery which would involve extending her cervical decompression and fusion to C5-6 level.[23]
[23]Report 4 September 2013, PCB 42 & 43. See also Professor Bittar’s report PCB 55 (aggravation of cervical spondylosis, surgically treated C6-7 disc prolapse and adjacent segment disease at C5-6), Dr Sutcliffe’s report PCB 65 (aggravation of degeneration change in the cervical spine, C6-7 decomposition and fusion, but persisting pain more likely related to C5-6 disc derangement and C6 nerve root compression), Mr Jones report DCB 83 (incomplete resolution of symptoms following C6-7 fusion) Mr Love’s report DCB 86-87 (unsuccessful cervical disc surgery suggesting additional symptoms arising from adjacent disc).
29 All medical practitioners who have expressed an opinion recently on the issue of the plaintiff’s current capacity for work are united in their opinion that the plaintiff is not able to return to her pre-injury duties, which involved manual handling tasks including the lifting of heavy rolls. However, there is division of opinion amongst the medical experts as to the extent to which the plaintiff may, otherwise, be fit for suitable employment or, indeed, whether she is fit for any employment at all. The relevant opinions are as follows:
·Dr Gary Davison, occupational physician, in a report dated 18 December 2014 to the defendant, stated:
“I consider the worker does have a capacity for suitable employment subject to the following restrictions:
1. Manual handling not to exceed 4.5 kg in force or weight between mid-chest and mid-thigh height.
2. Avoid forceful and/or repetitive pushing or pulling with the left hand.
3. Avoid extremes of neck movements and prolonged neck postures.
4. Graduated hours.
5. Self-paced duties.”
He went on to state that employment as a customer service officer, receptionist and sales assistant (which had been identified in an NES vocational assessment report dated 4 March 2013[24]) “could be suitable subject to compliance with the physical restrictions recommended previously.”[25]
[24]DCB 239 to 250
[25]DCB 38 to 39
Dr Davison was asked by the solicitors for the defendant to assess how many hours of suitable employment the plaintiff could undertake. In a supplementary report dated 29 January 2015, he stated:
“I recommend that the claimant could commence work at the rate of three hours per day, on alternate days, three days per week and increase at the rate of 30 minutes per day, per week. It remains unclear as to whether the claimant could resume full-time hours.”[26]
[26]DCB 48
Dr Davison was then supplied by the defendant’s solicitors with an affidavit sworn by one Lachlan Taylor, former shift supervisor of the plaintiff, sworn on 20 January 2015. After noting that Mr Taylor had stated that during the period that he was the plaintiff’s supervisor from May 2011 until July 2012, the plaintiff performed the role of machine operator/packer on full time hours and gave no indication that she was having difficulties, Dr Davison revised his opinion. In a further supplementary report dated 3 February 2015 he stated:
“In my opinion it would be appropriate to undertake a graduated return to work at the rate of four hours per day, five days a week, and increase at the rate of 30 minutes per day per fortnight. A resumption of full time hours would therefore occur over an eight week period.”[27]
[27]DCB 49
·Dr Andrew Miller, occupational health consultant, in a report dated 22 November 2013 to the defendant, stated that the plaintiff:
“is only capable of working with the following restrictions:
– avoid lifting in excess of 5 kg;
– avoid movements of her neck or shoulders beyond a comfortable range;
– avoid forceful pushing or pulling activities;
– avoid prolonged static postures such as sitting or standing in the same position for more than one hour at a time.”
He expressed concern about the identified suitable employment options of customer service operator, receptionist, general clerk, office cashier, data entry operator, sales assistant, as “she may be required to sit in a prolonged static posture at times with her neck in a flexed position when doing some of the job options.” He went on to state:
“Provided that she is able to vary her posture regularly and observe the other restrictions recommended, it is possible she could undertake some of the job options listed.”
He further stated:
“Other suitable job options could include light process/assembly work and quality control work.”
He concluded:
“Provided these restrictions are observed, a graduated return to suitable work could be possible.”[28]
[28]DCB 54 to 56
·Associate Professor Bruce Love, orthopaedic surgeon, provided a report to the defendant dated 16 July 2014. He stated:
“She may be able to return to suitable employment if suitable employment can be found and it would have to be on a graduated basis.”
He went on to state that the duties identified in the vocational assessment report of 4 March 2013
“… would be on a part time basis initially. It is not possible to estimate the number of hours until the worker engaged in dialogue with any potential future employer and a trial of work activity was undertaken.”[29]
·The Medical Panel gave an opinion on 25 September 2014 that the plaintiff “does not have no current work capacity”.[30] In its reasons, the Panel stated that the aforementioned suitable employment options “apart from the data entry job, which would likely require sitting in a fixed static position for prolonged periods, did constitute suitable employment for the worker … which she could undertake on a reliable and consistent basis.” [31]
·Professor Richard Bittar, neurosurgeon and spinal surgeon, provided a medico-legal opinion to the plaintiff’s solicitors in a report dated 3 February 2015. He opined that the plaintiff presents with aggravating cervical spondylosis, surgically treated C6-7 intervertebral disc prolapse and adjacent segment disease at C5-6. He considered that the plaintiff is totally incapacitated for work as a result of the work-related cervical spine injury and is unlikely to regain any significant capacity for work in a reliable and consistent fashion. He recommended further investigations to ascertain whether there was increased radio tracer uptake in the facet joints and to exclude instability on flexion/extension of the cervical spine. He also recommended that she be reviewed for consideration of a full range of pain management strategies including diagnostic blocks and possible radio frequency denervation and participation in a multidisciplinary outpatient pain management program. Although he considered that surgical fusion of the C5/disc level would be reasonable, he thought it was unclear what overall impact this would have on her global symptomatology and disability.[32]
·Dr H Sutcliffe, occupational physician, assessed the plaintiff on 11 December 2014 at the request of her solicitors and provided a report dated 9 February 2015. Dr Sutcliffe expressed the view that the plaintiff has no capacity for her pre-injury employment or any other employment, taking into account her present symptoms and findings on MRI and CT scans. She considered that the occupations of receptionist, general clerk, cashier, ticket seller, sales clerk, product assembler and product examiner, identified in an NES vocational assessment report dated 21 August 2014 were occupations for which the plaintiff had no capacity because of the limitation of movement and the escalation of pain with movement of the neck. She noted weakness in the plaintiff’s right hand and that she could not perform repeated or prolonged flexion required in computer-based tasks or desk work, nor could she perform computer-based screen work with twisting and turning and prolonged positioning of the neck or undertake product assembly or product examination with repeated movements of the neck and flexion, twisting and turning of the neck. She considered the prognosis poor and that the plaintiff would have persisting pain.
·Mr Chan, the plaintiff’s treating neurosurgeon did not express a view about the plaintiff’s work capacity in any of his reports which were tendered.[33] At the request of the defendant, Mr Chan attended the hearing for the purpose of cross examination. He stated that where a range of suitable employment has been identified, “the next step is for the patient to see whether that aggravates the symptoms or whether they can cope with that work environment”. He stated that the situation had to be “individually paced and based and to be assessed accordingly”, as one person’s neck pain might be aggravated by certain movements, but different movements might aggravate another person’s neck pain. He stated that the plaintiff’s symptoms were aggravated more with neck flexion and lateral flexion, so her job would have to take that into account. For example, her pain would be aggravated by looking down on paperwork or writing and typing and, also by looking across the shoulder – such things as turning her head to look at what is happening on either side.[34] Thus, he said, the standard restrictions for a neck-friendly working environment mentioned by Dr Davison[35] must take into account the extra features that the plaintiff’s pain can be aggravated with flexion and lateral flexion.[36]
He considered that the plaintiff would need to be assessed by an occupational physician to see what she could tolerate and “come up with an individually tailored job description for her.” If the job description was suitable, the plaintiff would then start with graduated work, according to her symptoms. He stated that:
“… it means that when someone returns to a particular job description, that intensity and duration of the work is to be paced according to how much the patient can tolerate the symptoms. So, in a way, it is almost to see if a patient’s able to handle a job.”
He stated that he was not in a position to say that the plaintiff had reached the limit of her improvement. That would depend on how she went with conservative treatment and whether she came back to him for interventionist treatment.[37]
Under re-examination, Mr Chan agreed that individual factors which would need to be taken into account for the plaintiff included such things as flare ups of pain and the manner in which she was able to deal with those flare ups. This included her taking Endone during such times, which may necessitate her lying down for about four hours. He stated that those things would influence his consideration about her capacity to work. He considered that work as a receptionist which required her to spend time looking down at a screen or a keyboard or a telephone periodically, but regularly, would be contra-indicated in the plaintiff’s case. He stated that surgery was an option, but not something that the patient must have from his perspective. Rather, it involved the patient having to evaluate its benefits and risks.
He went on to state that the plaintiff’s current symptoms are not the C7 radiculopathy which, was the initial pathology for her surgery in 2009 but more related to further aggravation of the level above the fusion, which he called “adjacent segment symptoms”. He stated that whether a patient got better was individually based and “the longer you have the symptoms, the poorer the prognosis is.” He had noted bilateral brachialgia and symptoms of numbness in the fingers of the left hand two years ago which he said was “neither too long nor too short in the context of brachialgia.” When he last reviewed her in December 2014, her brachialgia symptoms were improving clinically but she was left with mainly aggravation of the neck pain with flexion and lateral flexion. He stated that, if it was accepted her pain had worsened since he had seen her in December, then it is unlikely that there would be any dramatic improvement in the foreseeable future.[38]
[29]DCB 89 to 90
[30]DCB 92
[31]DCB 99
[32]PCB 56
[33]PCB 35 - 45
[34]T103 – T104
[35]DCB 38
[36]T105
[37]T105 – T106
[38]T107 – T109
Analysis
30 The plaintiff impressed me as a witness who gave her testimony in a frank and unembroidered way. Mr Kumar, for the defendant, submitted that under cross-examination of the plaintiff he had elicited some inconsistencies between her oral evidence, her sworn affidavits and earlier histories given or not given to doctors.[39] Taking into account the whole of the evidence in this case, if there were inconsistencies (as distinct from a failure by a doctor to note particular symptoms), then they appear to me to be of little moment. The few examples given by Mr Kumar related largely to the plaintiff’s symptoms following her surgery and return to work back in 2009. Indeed, Mr Kumar conceded that the defendant did not make “a wholesale attack” on the plaintiff’s credit and acknowledged that she was nervous in court.
[39]Mr Kumar’s submissions, T150-152
31 Further, the defendant admitted that it had had the plaintiff under surveillance and had taken video footage of her, but no such surveillance material or video film was put to the plaintiff in cross-examination or the subject of evidence. In the absence of any explanation for the failure to call such evidence, I infer that any surveillance material or video footage would not have assisted the defendant’s case. In addition, I am more readily able to accept the plaintiff’s version of events about the symptoms that she suffers and the limitations flowing from them.
32 Mr Kumar’s primary submission did not focus upon the lack of seriousness of the plaintiff’s current symptoms but, rather, that the court should not be satisfied that they were permanent.
33 I have no doubt that the plaintiff’s current symptoms and restrictions are serious. The defendant has conceded that the pain and suffering consequences of the impairment to the plaintiff’s cervical spine are serious. I have difficulty reconciling this concession, which is premised upon the plaintiff suffering a permanent impairment to her cervical spine, with Mr Kumar’s submission that the plaintiff has not suffered loss of earning capacity consequences which are serious because her condition is not stabilised.[40] Mr Kumar submits that this is so because there are various modalities of treatment which the plaintiff has not tried and which may improve her symptoms. However, I find it unnecessary to address this logical difficulty in order to determine this proceeding.
[40]Mr Kumar’s submission is at odds with the opinion of the defendant’s own experts: Dr Miller, Occupational Health Consultant, in a report dated 22 November 2013 stated that he believed the plaintiff’s condition has stabilised and no further improvement is likely regardless of treatment (DCR 54), Mr Clive Jones, orthopaedic surgeon, in a report dated 3 April 2014, stated that the plaintiff’s impairment to her cervical spine has stabilised (DCB 93). Indeed, it has been the subject of an impairment benefit paid pursuant to s98C of the Act.
34 It is now over six years since the plaintiff injured her neck. She describes herself as being never free of neck pain and arm pain and having daily headaches which become very severe. She takes Nurofen and Panadol regularly for pain relief every day and Endone at night, as well as the anti-depressant, Dothep. On average, she also takes Endone twice a week during the day because she suffers flare-ups of her pain. When flare-ups occur, she said she suffers “very, very strong pain”, which she described as “like someone is twisting my arm and wrenching it out of my shoulder”.[41] She finds that when she takes Endone during the day, she has to go and lie down for approximately four or five hours. Her sleep at night is disturbed by pain and, in particular, she is unable to lie on her side and often awakes because of pain. She has trouble waking up in the morning and often does not get up until lunchtime.
[41]T18
35 She has constant aching in the neck and both shoulders and bilateral arm pain, worse on the left, which she has described as having an average severity of 9 out of 10 and being “like a band that is pulling around her arm”.[42] The pain which she experiences in her left arm has been variously described as a “shooting” or “electric shock” type pain and she suffers pins and needles and numbness in her fingers, particularly the thumb and index finger of the left hand. She described to Dr Sutcliffe a “hot, burning pain at the base of the skull, aching pain and jabbing, buzzing pain like electricity in the arms”.[43]
[42]Professor Richard Bittar’s report, PCB 54 and Dr Sutcliffe’s report, PCB 61
[43]PCB 61
36 The plaintiff states that she is unable to sit at a computer for longer than 10 or 15 minutes and cannot hold her head in a fixed position for longer than five minutes. Looking down for even a few minutes at a time to use a pen to write increases the pain in her neck and shoulders.[44] Back in 2011 and 2012, before she ceased working, she could still do a number of household chores but, now, she is not able to make her bed, vacuum, wash the evening dishes for herself, her partner and her daughter, hang out washing or clean the bathroom or windows or do any gardening. She cannot push a shopping trolley and does not carry shopping bags, so she does not do the shopping alone, although she will go out and get a loaf of bread.[45] She recently had her hair cut short because she found washing and brushing it painful.[46] Sometimes “simply having (her) neck to the side or down – would lead to sharp, shooting pain into (her) left arm and fingers”.[47]
[44]Plaintiff’s affidavit sworn 16 April 2014, paragraph 20, PCB 9
[45]T72-77
[46]Plaintiff’s affidavit sworn 2 February 2015, paragraph 4, PCB 12
[47]Ibid, paragraph 2, PCB 12
37 The plaintiff states that her current pain is worse than it was when she worked for the defendant. She did not take Endone when she worked for the defendant or for Yarra Valley Snacks Foods, but the increase in her pain over the last two years has required prescription of Endone.[48]
[48]T72-80
38 I find no reason to doubt the plaintiff’s description of her symptoms of pain and restriction of movement, particularly in the light of the multiple areas of pathology in her cervical spine.
39 The defendant submits that the plaintiff’s symptoms in her neck and arm referrable to the pathology at C5-6 level only arose two years ago and, hence, it is premature to determine whether symptoms are permanent in the light of Mr Chan’s evidence that neck exercises, traction by a physiotherapist, a further cortisone injection or, ultimately, a C5-6 discectomy and fusion, may improve her symptoms. I find this to be an over-simplification of the plaintiff’s history of cervical injury.
40 The fact is that the C5-6 disc was implicated at a relatively early stage following the injury which occurred on 29 September 2008. On the initial CT scan on 18 December 2008, it was reported as a mild diffuse disc bulge. By 21 April 2009, Mr Chan reported that it had shown a slight progression compared to previously, noting that the asymmetric C5-6 bulge was bulging towards the right C6 nerve root, with questionable compromise of the right C6 nerve root.[49] At that stage, Mr Chan thought it prudent to confine his surgery to the C6-7 disc protrusion which showed definite C7 nerve root compression.
[49]PCB 35
41 In this context, it is of significance that the plaintiff, in her first affidavit sworn on 16 April 2014, stated that, following the surgery to the C6-7 level performed by Mr Chan on 30 April 2009, “the pain in (her) right shoulder was more severe than it had been prior to the surgery”.[50] She went on to say that, after returning to work, she continued to have pain in her right shoulder and in the right side of her neck and would apply a heat pack to those areas whilst at work for the defendant.
[50]Paragraph 9, PCB 6-7
42 I note that Mr Lachlan Taylor, shift supervisor for the defendant, who claims that he could see no indication that the plaintiff was struggling with her duties, does recall seeing her wear a heat pack from time-to-time.[51] The plaintiff’s fellow employee, Ms Victoria Garwood, also observed the plaintiff applying heat packs at work after her surgery, noticed her crying at work many times and taking a lot more breaks then other workers, as she was struggling with her work.[52] Another fellow employee, Mr Charles Frimpong, also states that the plaintiff complained of neck pain and struggled with her duties.[53]
[51]Affidavit sworn 10 March 2015, paragraph 5, DCB 4
[52]Affidavit sworn 4 March 2015, PCB 16
[53]Affidavit sworn 10 March 2015, PCB 18
43 The plaintiff stated that her employer permitted her to take extra breaks due to her pain. Also, by the end of each working day she was in a lot of pain and was taking analgesic and anti-inflammatory medication.[54] Indeed, in the month after the plaintiff ceased employment with the defendant, her general practitioner wrote to Mr Chan “she is finding now that her right arm daily is giving her pain, such that she has become unable to use it for much activity at all”.[55]
[54]Paragraph 10, PCB 7
[55]Report dated 28 August 2012, PCB 70
44 I accept the plaintiff’s version of right neck and shoulder pain as consistent with the progressive bulging of the C5-6 disc towards the right C6 nerve root noted by Mr Chan in April 2009, even though the surgery for her left-sided symptoms initially was successful.
45 It would seem that the plaintiff’s symptoms have fluctuated from her right side to her left side. Mr Chan did not see her between 9 December 2009 and 12 February 2013, by which time things had deteriorated and the plaintiff was having neck ache and right upper limb pain with paraesthesia extending to the right ring and little fingers, as well as recent left ring and little finger paraesthesia. Her clinical symptoms appear to be consistent with the moderate right foraminal stenosis and a severe left foraminal stenosis at C5-6 level, shown on the MRI scan on 4 March 2013, and the retrolisthesis of C5 on C6, shown on the dynamic cervical spine x-ray on 6 March 2013.
46 As previously mentioned, by 23 April 2013, Mr Chan noted that the plaintiff’s bilateral cervical brachialgia was worse on the left than the right side. He considered that it was likely to be due to aggravation of adjacent segment bilateral foraminal stenosis at C5-6. He administered bilateral C5-6 transforaminal cortisone injections, but these produced no significant improvement, and that is when he discussed the option of further surgery by way of decompression and fusion at C5-6 level.[56]
[56]PCB 42-43
47 Thus, examination of the plaintiff’s various x-rays and scans reveals that prior to 29 September 2008 she had asymptomatic pre-existing degenerative change at C5-6 level. Mr Chan considered that this was most likely to have been aggravated in the incident on 29 September 2008 initially being seen as a disc protrusion with suspected compromise of the C6 nerve root. By 2013, this level demonstrated a retrolisthesis, which is a consequence of the fusion surgery which she had undergone at the level below on 30 April 2009. Mr Chan described the plaintiff’s current symptoms of paraesthesia in her left thumb and index finger as being indicative of C6 nerve compression, which was in accord with the C6 nerve compression shown on the MRI scan on 4 March 2013.[57]
[57]T99-100
48 Although Mr Chan believes that surgery at the C5-6 level would probably bring about a good result, he was at pains to point out that all surgery carries risks and that, from his perspective, the surgery was not something that the plaintiff must have, but, rather, it is up to the plaintiff to decide whether she would or would not have such surgery.[58]
[58]T107-108
49 The current situation is that the plaintiff simply does not know whether she will or will not have the surgery. She had thought that she might undertake the traction option by way of physiotherapy treatment suggested by Mr Chan but, having discussed it at a medico-legal examination with Professor Bittar, she has decided not to pursue this option.
50 Professor Bittar stated that although surgical fusion of the C5-6 disc would be reasonable “it is unclear what overall impact this would have on her global symptomatology and disability”.[59] This is presumably because Professor Bittar considers such symptomology and disability to be caused by more than simply the adjacent segment disease at C5-6.[60]
[59]Report dated 3 February 2015, PCB 56
[60]PCB 55
51 The defendant’s medico-legal expert, Associate Professor Bruce Love, orthopaedic surgeon, like Associate Professor Bittar, stated that he was pessimistic about the plaintiff’s future and expressed considerable doubt as to whether further surgery would relieve symptoms albeit that it was not unreasonable to seriously consider it.[61] He considered that the plaintiff may be able to return to suitable employment on a graduated basis but was unable to estimate the number of hours.[62] However, his assessment took place prior to the most recent MRI scans taken on 4 March 2013 and 21 November 2014. The latter reported “at C5-6 moderate right sided and severe left sided neural foraminal stenosis with compromise of the exiting left C6 nerve root”, along with other multilevel degenerative changes in the cervical spine, as well as some minor proximal thoracic spondylosis and the signs of the surgical intervention at C6-7.[63]
[61]Report dated 16 July 2014, DCB 88
[62]DCB 89
[63]PCB 21
52 Upon a review of all the evidence in this case, I find no support for the proposition advanced by Mr Kumar that the plaintiff’s cervical impairment is not permanent. Mr Chan’s ultimate position was that, if it is accepted that the plaintiff’s condition had deteriorated since he last saw her, then any dramatic improvement in the foreseeable future is unlikely.[64]
[64]T109
53 I do accept that the plaintiff’s condition has so deteriorated. Apart from finding the plaintiff to be a truthful witness, the most recent report from the plaintiff’s general practitioner, Dr Hill, dated 30 January 2015, reports that the plaintiff has severe limitation of all neck movements because of pain, as well as symptoms in her shoulders, left arm, pins and needles in her left hand frequently (and less frequently in her right) and daily headaches – such that she is very limited in what she can do. The plaintiff also experiences a throbbing pain in her neck, shoulder girdles and down her back just while sitting and talking. She requires strong analgesic medication such that she is now unable to focus clearly.[65]
[65]PCB 33-34
54 Although some medical opinions proffer suggestions other than surgery which may or may not help ameliorate the plaintiff’s symptoms, no doctor has suggested that her condition will improve or resolve. Indeed, I find it likely that the plaintiff’s symptoms of pain and restriction of movement are likely to deteriorate. It is possible that some of her symptoms related to the pathology at C6 could resolve with surgery, but I cannot be satisfied on the balance of probabilities that the plaintiff will have such surgery. Certainly, it could not be suggested that it is unreasonable of her not to undergo such a serious spinal operation. Moreover, even if she were to have it, she would then be left with an even stiffer neck than she has now (presuming it to be successful), as well as the symptoms which emanate from the other degenerative levels in her cervical spine, including the surgically fused C6-7 level, together with the risk of development of further adjacent segment pathology.
55 For the foregoing reasons, I find the submission of the defendant, that the plaintiff’s application must fail because her condition has not stabilised to be without merit.
The issue of the plaintiff’s work capacity
56 In submitting that the plaintiff had a current capacity for work and that she, therefore, is unable to satisfy the test for serious loss of earning capacity consequences, Mr Kumar relied principally upon the opinions of Dr Gary Davison, occupational physician, who had provided a number of reports to the defendant, and the opinion and reasons of the Medical Panel dated 25 September 2014.
57 I have previously referred to Dr Davison’s report dated 18 December 2014 and his two supplementary reports of 29 January 2015 and 3 February 2015.[66] I cannot understand how, on the basis of being appraised of the opinion of Lachlan Taylor that the plaintiff allegedly coped at work some three years earlier, Dr Davison revised his opinion as to her current capacity in February 2015. Moreover, I place little weight on Mr Taylor’s affidavit insofar as he claims to have observed the plaintiff carefully for 50 per cent of the time. I accept the plaintiff’s evidence that Mr Taylor spent most of his time in the office and had to be telephoned to attend the factory floor.[67] His affidavit, sworn on 20 January 2015, does not appear to be a frank or careful recollection in that it made no mention of the fact that in March 2012 the plaintiff was on modified duties (only permitted to do packing for 30 minutes at a time) or of the fact that he recalled seeing her wear a heat pack from time to time, both of which were acknowledged in his later affidavit sworn on 10 March 2015.[68]
[66]See paragraph 29 of this judgement
[67]T36
[68]DCB 3 and 4
58 Further, when Dr Davison last saw the plaintiff on 18 December 2014, he was provided with, amongst other things, the report of Mr Chan dated 4 September 2013 and Dr Hill dated 11 March 2014. Notwithstanding that Mr Chan’s report referred to recent scans and gave a diagnosis of adjacent segmental foraminal stenosis at C5-6 level with bilateral foraminal stenosis causing bilateral C6 radiculopathy, for which he recommended surgery, Dr Davison does not seem to have taken this into account; nor did he seem to take into account the opinion expressed by the plaintiff’s treating general practitioner that the plaintiff’s condition was continuing to deteriorate and she felt that she could not clear her for employment.
59 In the circumstances, I cannot accept the opinion of Dr Davison as a careful and considered one. He appears to have accepted a one-sided version of what the plaintiff’s work capacity was alleged to have been three years earlier and not sought to further examine the plaintiff or raise this version with her. This is not what would be expected of an impartial expert witness.
60 I have previously referred to the opinion of the Medical Panel that the plaintiff is not totally incapacitated for work and could undertake on a reliable and consistent basis suitable employment as a customer service officer, receptionist, general clerk, office cashier or sales assistant.
61 The history recorded by the Panel as to the activities of which the plaintiff is capable is quite different from the evidence of the plaintiff in her affidavits and orally and, indeed, the histories given to doctors recently. It records the plaintiff as able to do most activities around the house, except for anything which requires her to put her arms above her head and states that she uses a computer regularly.[69] This history is contrary to the restrictions described by the plaintiff, and accepted by me, as set out in paragraph 36 of this judgement.
[69]DCB 95
62 Contrary to the opinion of the neurosurgeons, Mr Chan and Professor Bittar, the Panel found that alteration to sensation in the plaintiff’s arms did not follow any known anatomical distribution. In its reasons the Panel quoted from films of the cervical spine in 2009 and an MRI scan of the cervical spine dated 3 March 2013. The Panel concluded that the plaintiff was suffering from mild continuing dysfunction of the neck related to a prolapse of the C6-7 disc.
63 Obviously, the Panel did not have the most recent CT and MRI scans of the cervical spine taken on 19 November 2014 (that is, subsequent to its opinion) which showed bilateral foraminal stenosis at C5-6 level, worse on the left side, with compression of the left C6 nerve root. Although the Panel had access to a report from Mr Chan dated 7 August 2013[70] (which has not been tendered in this proceeding), it makes no reference to Mr Chan’s opinion at all. It is apparent from Mr Chan’s report dated 4 September 2013, that the MRI scan of 4 March 2013 showed severe left foraminal stenosis at C5-6 level, as well as a 1 millimetre retrolisthesis of C5 on C6, which caused him to diagnose aggravation of adjacent segment bilateral foraminal stenosis, administer bilateral cortisone injections and recommend that by reason of her C6 radiculopathy she should be approved by WorkCover for further surgery by way of cervical decompression and fusion at C5-6 level. Thus the Panel’s consideration of the plaintiff’s condition appears to be seriously deficient. There is no focus by the Panel upon her by then known C5-6 pathology with radiculopathy. Thus, the Panel’s conclusion that the plaintiff has mild continuing dysfunction of the neck relating to a prolapse of the C6-7 disc is not an up-to-date one.
[70]See schedule of attachments, DCB 101
64 In my view, the criticisms of the Medical Panel reasons articulated by Mr Mighell of Senior Counsel for the plaintiff in his submissions[71] are legitimate. The Panel simply disagrees with the opinion of the plaintiff’s general practitioner, Dr Hill, and seems to be unaware of the plaintiff’s deteriorating condition, which in the last couple of years has required the prescription of Endone, not only at night, but, also, on average twice per week during the day, in addition to Nurofen and Panadol. In these circumstances I place no weight upon the opinion and reasons of the Medical Panel.
[71]T161 – T164
65 In this case, the argument put forward by Mr Kumar, on behalf of the defendant, that the plaintiff should explore neck exercises, physiotherapy by way of traction, or further cortisone injections as options recommended by Mr Chan, really underlines the seriousness of the plaintiff’s ongoing symptoms six years after the date of her injury. There is no medical opinion to report that these treatments, on the balance of probabilities, would make a difference to her symptoms to the extent that her capacity for work would be enhanced. Her symptoms are of sufficient moment for Mr Chan to consider that further surgery is an option, if or when the plaintiff feels that she wants to pursue it. As mentioned in the context of determining whether the plaintiff’s impairment is permanent, if she does pursue surgery, it will be attended by the usual risks. Her case is complicated by the fact that she has already had surgery at the C7 level. If the surgery is successful, as Mr Chan believes it should be, the plaintiff may be relieved of her upper limb symptoms referable to the compression to the C6 nerve root, but will be left with an even stiffer neck than she has now because her neck will be fused from C5 to C7 level. If she does not have the surgery, her prognosis is likely to be continuing deterioration. This is because she has a disc bulge at C6, together with a retrolisthesis resulting in compression of the C6 nerve root. In addition, she has aggravation of the underlying degenerative change elsewhere in her cervical spine and the results of the earlier surgery at C6-7 level.
66 Mr Chan’s view about work capacity, as I understand it, is that the plaintiff would need to be assessed by an occupational physician for suitability for a job specifically tailored for her. This would involve the standard restrictions for a neck-friendly work environment listed by Dr Davison but, in addition, accommodation of the plaintiff’s individual vulnerabilities that her pain is aggravated by neck flexion (putting her head down) and lateral flexion (turning her head from side to side). Mr Chan made it clear that the intensity and duration of any work would need to be paced according to the plaintiff’s tolerance.
67 I also note that the concern expressed by Dr Miller, occupational health consultant, in his report dated 22 November 2013, provided to the defendant. This related to suggested employment options that may require the plaintiff to sit in a prolonged static posture at times with her neck in a flexed position. Hence, he indicated that it would be important that she be able to vary her posture regularly and, provided this occurred and the other restrictions he recommended were adhered to, then it was “possible [my emphasis] she could undertake some [my emphasis] of the job options listed”, but they would need to be formally assessed. He noted that other suitable job options “could [my emphasis] include light process/assembly work and quality control work”.[72] Mr Miller’s opinion seemed to me to be a very cautious endorsement of the plaintiff’s work potential. His report does not indicate that he was aware of the severe left foraminal stenosis and retrolisthesis at C5-6 level shown in the MRI scan and cervical spine x-ray in March 2013. It appears to me a reasonable inference that, had Dr Miller been aware of this, his opinion concerning the plaintiff’s work capacity would likely be more pessimistic than that expressed in his report.
[72]DCB 55 and 56
68 Dr Sutcliffe, also an occupational physician, assessed the plaintiff on behalf of the plaintiff’s solicitors on 11 December 2014. She expressed the view that the plaintiff had no capacity for any of the occupations identified in the NES vocational assessment report dated 21 August 2014 (clerk, receptionist, general clerk, cashier, ticket seller, sales clerk, product assembler and product examiner) because of the limitation of movement and the escalation of pain with movement of the neck. She noted the weakness in the plaintiff’s left hand, her inability to perform repeated or prolonged flexion, required in computer-based tasks or desk work, and that her prognosis was poor with the likelihood of increasing pain.
69 The plaintiff appears to me to have been a person who was motivated to work. She returned to her work with the defendant fairly promptly following the C6-7 discectomy and fusion in 2009 and I accept that she worked on to the best of her ability, but with difficulty. Once the defendant’s business closed in Victoria, she also sought work with another employer but it was plain that she struggled with those duties. In the last two weeks of that short employment, her hours were markedly reduced and she ultimately ceased work because she could no longer cope with her pain and restrictions of movement. Her evidence is that she was a single mother and had needed to work, but she simply could no longer cope. Further, the plaintiff took the initiative, whilst still working for the defendant, to undertake retraining as a personal carer. More recently, in 2013, she attempted an online beauty therapy course, however, her progress was stymied by her inability to complete assignments on the computer due to her neck and arm symptoms. I have little doubt that neither of these were suitable employment options for the plaintiff, but, nevertheless, the fact that she was prepared to attempt retraining shows that she had a mind-set of wishing to be employed.
70 The plaintiff’s general practitioner, Dr Hill, who has seen her regularly, has noted that, amongst other things, the plaintiff finds it difficult to focus clearly, which she attributes to the medication she is taking and considers that it is difficult to conceive of any gainful employment which she could reliably undertake without experiencing such severity of pain that she would need to cease work within a few minutes.[73]
[73]DCB 34
71 Although it is possible that, an intensive pain management program, may help the plaintiff to better manage her pain and restrictions, I consider that, to be able to perform any work, she would need an extraordinarily sympathetic employer. Further, any job would really have to be specifically created for her in the way that Mr Chan described in his evidence, rather than being a job that was actually available on the open labour market. In my view, it is highly unlikely that the plaintiff will ever be capable of tolerating more than piecemeal work - perhaps an hour here or there. Even then, she is likely to have trouble with reliability and consistency because her flare-ups of pain occur without warning. Taking into account the opinions of the plaintiff’s treating doctors, Dr Hill and Mr Chan, along with the opinions of Professor Bittar, Dr Sutcliffe and Mr Love, and having accepted the plaintiff’s own evidence as to her symptoms and limitation on daily activities, I consider that the conclusion that the plaintiff is effectively totally incapacitated for work is inevitable.
72 On all of the evidence, I am satisfied that none of the jobs identified in the vocational assessment recommendations provided to the defendant constitute suitable employment. In almost every one, the job description requires writing or recording information which necessitates one’s head being in a flexed position or doing such things as operating a cash register or stacking items for display which would require repetitive use of her arms, as well as likely rotation of her neck with some regularity. This is clearly contraindicated according to the evidence of her treating neurosurgeon.
73 Having taken into account the relevant provisions of s134AB, I am satisfied that the plaintiff has proven, on the balance of probabilities, that she has suffered a permanent impairment to her cervical spine with loss of earning capacity consequences which are serious. Accordingly, the plaintiff is given leave to bring proceedings to recover damages in respect of both pain and suffering and loss of earning capacity relating to her injury sustained to her cervical spine whilst employed with the defendant.
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