Spiteri v VWA
[2018] VCC 2142
•19 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03700
| DEBBIE ANNE SPITERI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2018 | |
DATE OF JUDGMENT: | 19 December 2018 | |
CASE MAY BE CITED AS: | Spiteri v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2142 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – Ss335 and 325(1) – application in respect of both earning capacity and pain and suffering – reliance upon sub-paragraph (a) of the definition – injury to the low back – disentanglement of allegedly non-organic issues – permanence – correct diagnosis – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Mr D Myers | IDP Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings in respect of both loss of earning capacity and pain and suffering. In so doing, she relies upon sub-paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. Reliance upon sub-paragraph (c) was abandoned – see Transcript (hereinafter referred to as “T”) 1. The injury is one to the back, and particularly at the lumbar level. It shall hereinafter be referred to as “the injury”. The injury occurred as the result of a specific incident, which occurred on 29 April 2015. This shall hereinafter be referred to as “the accident”.
2 The plaintiff was employed by H J Heinz Co Aust Ltd (“Heinz”). Her employment was that of a merchandiser, which involved her in going to various supermarkets, stores and the like. At the time of the accident, the plaintiff was at a Coles supermarket putting a pricing ticket upon some product. She was squatting, when struck in the back by a roll cage carrying frozen food and being wheeled by a Coles staff member.
3 The occurrence of the accident is admitted, as is the fact that the plaintiff was receiving weekly payments of compensation for a period and had some medical expenses paid – see T48. The area of dispute centred largely upon various medical diagnoses, the alleged existence of psychiatric consequences which would have to be disentangled and issues such as retraining and the like. I would refer, for example, to T15-17 and to T48 and the following pages.
4 Mr R McGarvie QC with Ms A Smietanka of counsel appeared on behalf of the plaintiff. Mr D Myers of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature, including some video material, and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the injury
5 The plaintiff is aged 57 years, she having been born in 1961. She is a married woman with two adult daughters. She was educated to Year 10 level and then completed an apprenticeship as a hairdresser, working in that occupation for approximately three years. She was then absent from the workforce for approximately three years, this being the period when her daughters were born. In April 1987 she obtained employment with Kmart as a service assistant and worked in that occupation for approximately 25 years. She then worked briefly for Woolworths, before being employed by two entities (Bulla and McPhersons) as a merchandiser. In these employments, she worked on a part-time basis – see T20. Essentially, her work seems to have been on a part-time basis. I would refer to T45-46.
6 In approximately October 2012, the plaintiff commenced employment with Heinz as a merchandiser. She was working three days per week, approximately seven hours per day. Her duties were to attend stores which stocked the Heinz product, build and set up displays, fill shelves, restock and put up pricing tickets. She was engaged in this activity on 29 April 2015 when the accident occurred.
(b) The plaintiff as a witness
7 I found the plaintiff to be a credible, reliable and impressive witness. In this regard, I note that Dr Joseph Slesenger, occupational physician, who examined the plaintiff at the request of the defendant, described her as giving a clear and consistent account of her injury. Dr Philip Mutton, consultant occupational physician, examining on behalf of the defendant, referred to the plaintiff as being pleasant and cooperative. Dr Stephen Stern, consultant psychiatrist, also examining on behalf of the defendant, referred to her as being tense, but trying to be cooperative and pleasant. Mr Rodney Simm, orthopaedic surgeon, being yet another examiner on behalf of the defendant, referred to the plaintiff as presenting in a straightforward and cooperative manner, further stating that there was no evidence of exaggeration or substantial functional overlay.
8 Dr Nigel Strauss, consultant psychiatrist, who examined the plaintiff at the request of her solicitors, referred to her as presenting well and being helpful and cooperative. Dr Ralph Poppenbeek, occupational physician, who examined the plaintiff at the request of her solicitors, referred to her cooperation and her very pleasant manner. Her treating general practitioner, Dr David Frost, described her as being sincere. Dr Paul Verrills, who has also given her considerable treatment, referred to the plaintiff as being at all times cooperative and supportive. Thus, it can be seen that various medical examiners from both sides in this dispute have referred to the plaintiff and her presentation in very favourable terms. They formed an impression of her similar to the one which I did. I accept the plaintiff’s evidence without reservation.
9 I should add that some video material was shown. In my opinion, this effectively took matters nowhere. In essence, it showed the plaintiff doing such things as getting into and out of a car and walking. In my opinion, the surveillance material did no damage whatsoever to the credit of the plaintiff. Further, I note, as emphasised by Mr McGarvie at the commencement of his closing address, that in Mr Myers’ closing address there was no criticism of the plaintiff’s credit and no reference to the surveillance. I agree with the submission of Mr McGarvie at T63 that the plaintiff ought to be accepted as a witness of truth and credibility.
(c) The state of the plaintiff’s health prior to the accident
10 As she has sworn in her affidavit, the plaintiff has a history of some anxiety and depression, and particularly in approximately 2008. She was stressed in relation to family matters in April 2015. She also suffered from trigger finger in her right hand, resulting in surgery in 2014. Whilst she seems to have been diagnosed with chronic pain syndrome, she has sworn that her finger injury did not interfere with her ability to work and there was no challenge to this proposition. She has sworn that, at the time of the accident, she was physically and emotionally well.
(d) The injury, its treatment and diagnosis
11 As stated, the plaintiff suffered injury to the back when struck by a laden roll cage on 29 April 2015. She was in pain for a couple of days, but thought that the pain would pass and struggled on with her normal duties. She then took time off in order to rest her back. When there was no improvement, she attended upon her general practitioner, Dr David Frost, on approximately 3 May 2015. Dr Frost has continued to be the plaintiff’s treating general practitioner, although, as stated in his report of 20 November 2018, he has not been her primary treating doctor. In addition, as shall be referred to subsequently, she has received considerable treatment from Dr Paul Verrills, who specialises in pain medicine.
12 The plaintiff’s original treatment consisted of being prescribed Panadeine Forte, having an x-ray which did not reveal a fracture, and the commencement of physiotherapy treatment. It would seem that her physiotherapist throughout has been Mr Stephen Gosling.
13 Dr Frost organised a lumbar MRI which was performed on either 30 June or 1 July 2015. Passages of the radiologist’s report are difficult to read. There is a reference to pre-vertebral minimal oedema as well as bi-facet effusion more prominent on the right side. Considering that there had been recent trauma, the appearance was consistent with microtrabecular endplate injury, but with no significant compression or wedging. There is a reference to the presence of background degenerative change and marginal osteophyte formation.
14 In his letter to the conciliation service of 10 April 2017, Dr Frost expressed the belief that the impact of the injury had been significantly underestimated (referring to a report of Dr Philip Mutton, who examined the plaintiff at the request of the defendant). Dr Frost also mentioned that he had referred the plaintiff to Dr Verrills. It would seem thereafter that Dr Frost and Dr Verrills have worked together in relation to the care of the plaintiff. I shall return to this. It is also apparent that the treatment has been in conjunction with the physiotherapy administered by Mr Gosling over the years. I shall return to his report.
15 In late 2015, Dr Frost referred the plaintiff to Dr Thomas Smith who, like Dr Verrills, is associated with the Metro Pain Group. Dr Smith took a history of the plaintiff having done a lot of work with physiotherapy, hydrotherapy and Pilates. Her left side had improved greatly, but right sided lumbosacral pain was persisting. The plaintiff had returned to part-time work 12 hours per week, but she was greatly limited in regard to travelling in a car. She was taking Tramadol. Dr Smith thought that the plaintiff’s presentation suggested that her pain was most likely emanating from the sacroiliac joint, although also referring to right sided lower lumbar facet joint arthropathy. A subsequent letter to the defendant seeking approval for a right sacroiliac joint injection, such report being dated 31 January 2016, effectively repeats the contents of the earlier report. Dr Smith also provided an operation report in relation to a right sacroiliac injection for which approval was apparently obtained and which was carried out on 23 February 2016. The report in relation to this effectively indicates a negative result and the possibility of a right L3-4-5 diagnostic medial branch block was raised. It would appear that Dr Smith was with the Metro Pain Group on a visiting basis and subsequently returned to England.
16 In any event, Dr Paul Verrills, from the same practice, took over the care of the plaintiff. On 12 April 2016 he performed a right L3, L4 and L5 medial branch block. On this occasion there was a positive response and Dr Verrills indicated that a radiofrequency neurotomy in respect of those levels of the spine could be scheduled. Apparently approval was obtained from the defendant for this and it was performed on 9 May 2016. The object of the treatment was the denervation of the L4-5 and L5-S1 facet joints. It would then appear that, on 18 July 2016, there was performed a right sacroiliac joint injection and L4-5 medial branch block. There would also appear to have been a right sacroiliac joint injection and L4-5 medial branch block performed on 3 November 2016, but Dr Verrills reported on 19 December 2016 that the plaintiff had persisting severe pain in the low back and buttock, with referral into the groin and a sense of weakness in the legs. She was currently unfit for work duties. Dr Verrills sought and obtained approval for the carrying out of an updated lumbar MRI scan and right hip x‑ray. The MRI scan revealed prominent modic changes at the L2-3 disc space level; right and possible left L5 pars defects and a resulting spondylolisthesis, which would appear to have been one of 7 millimetres (the typing is somewhat blurred); and severe right L4-5 and moderate right L3-4 facet arthrosis. The x‑ray of the right hip caused the radiologist to comment that the findings were suspicious for an internal derangement, such as a labral tear.
17 A questionnaire completed by Dr Verrills on 15 May 2017 indicated that a right hip injection on 20 March 2017 was successful, with no complications and decreased right groin pain, but that the plaintiff was currently seeing Mr Paul D’Urso, neurosurgeon, in respect of her persistent low back pain.
18 On 24 July 2017, Mr D’Urso wrote to the defendant seeking approval to perform an L2-3 instrumented inter-body fusion and rhizolysis procedure. There would also be a period of rehabilitation from this. A report of Mr D’Urso to the Accident Compensation Conciliation Service of 6 December 2017 sets out a more complete history of events. He commented that MRI imaging had demonstrated a severely degenerate L2-3 disc with retrolisthesis and abnormality on the right side, probably consistent with a pars fracture. The L3-4 disc was degenerate with a minor prolapse. His opinion was that the accident had precipitated the onset of symptoms and was likely to have aggravated the degenerative L2-3 motion segment, where there is retrolisthesis. He stated that the plaintiff had failed to respond to conservative management and remained somewhat disabled and incapacitated. It seems clear that Mr D’Urso was in favour of what he described as a minimally invasive fusion procedure.
19 I should add that the last report from Dr Paul Verrills, being of 20 November 2018, concludes with the observation that the plaintiff had completed a pain management program without improvement. She remained significantly impaired. The only potential opportunity for improvement was for fusion surgery or a trial of spinal cord stimulation. He also commented that the plaintiff had, at all times, been cooperative and supportive.
20 The plaintiff’s affidavit of 21 November 2018 would indicate that funding in relation to the surgery proposed by Mr D’Urso was not forthcoming, although there was agreement to fund a pain management program. In any event, the plaintiff had not returned to see Mr D’Urso since mid-2017.
21 However, in January 2018 the plaintiff completed a four week trial of a pain management program at Advanced Healthcare. She was discharged early, in lieu of completing the final four weeks of the program. During it, her medication had been changed and she had experienced significant side effects. She was also not convinced that the program was of any benefit.
22 The most recent report of Dr Frost is that of 20 November 2018. It records some of the history to which reference has been made. Dr Frost referred to various treatments, concluding that no sustainable gains had been made and that the plaintiff continues to be in the same level of pain. The pain level has stabilised, but is no better. The diagnosis made by Dr Frost referred to lumbar back degenerative changes with severe pain in the region and with overlay of muscle spasm, tightness and pain. He also referred to significant depression, secondary to the injuries, loss of function, loss of work, the impact of the injuries on daily life and the like. He observed that the injuries have all stemmed from the date of the accident, which is the primary cause. He observed that, taking into account various factors including age, background and the like, and considering her low back injury alone, the plaintiff does not have a realistic fitness for employment in the foreseeable future. In addition, the injury impacts upon her daily living activities. Despite many interventions and treatments, there have been no sustainable gains.
23 Mr Stephen Gosling, the physiotherapist who has regularly treated the plaintiff, has provided two reports. The earlier of these is dated 20 March 2017. He referred to her as having sustained a severe low back injury in the accident. Her current condition was still consistent with the injuries sustained in that accident. He foreshadowed the need for future intensive physiotherapy treatment, the duration of which would be dependent upon the plaintiff’s response to the treatment then being undertaken by Dr Verrills.
24 Mr Gosling’s conclusion was that the plaintiff had a significant back injury which severely restricted her ability to do many of her normal daily activities and the majority of her domestic and social tasks. He considered that employment would be extremely difficult in her then current state.
25 Mr Gosling reported again on 10 January 2018. He referred to the plaintiff having a significantly reduced capacity for work and placed a number of quite limiting restrictions upon any such work. In essence, these meant that she would require a sedentary role where she was able to move around regularly, with no lifting or moderate physical demands. Even then, Mr Gosling was of the view that the plaintiff would tolerate only a couple of days per week and shifts of four to six hours, at least initially. He believed that she was unlikely to improve significantly without the intervention of spinal surgery.
26 Mr Gosling concluded by saying that the plaintiff has a significant back injury, which has severely restricted her ability to do many of her normal daily activities. He referred to her as being fiercely independent and as having exhausted many alternatives of conservative therapy. He thought that conservative management was unlikely to change the plaintiff’s symptoms, her physical function and her ability to find meaningful employment into the future.
27 The plaintiff has also been examined for medico-legal purposes. The opinions of these examiners could be summarised as follows.
· Dr Ralph Poppenbeek, occupational physician, report of 9 March 2018. The plaintiff’s major pain, which is constant and debilitating, is on the right side of the lumbosacral level and the findings are more characteristic of facet joint dysfunction than disc degeneration or protrusion. It is unlikely that surgery as proposed would be beneficial. The plaintiff has a constitutional problem with the lumbar spine, but this was asymptomatic until the accident. Looking at her back injury alone and excluding any other physical or psychiatric condition, the plaintiff does not have a capacity to work on a consistent and reliable basis because of the severity of her symptoms and the examination findings. She has no capacity for work as at the time of reporting. If some successful form of treatment was given, she would be able to return to a restricted form of work in the foreseeable future, but, if such treatment was unsuccessful, her current incapacity for work may well be permanent. The extent of her incapacity is quite severe. The prognosis is poor.
· Professor Richard Bittar, neurosurgeon, report of 19 May 2018. The plaintiff’s quality of life, including her sleep quality, has been severely impacted and diminished. There was no evidence of abnormal illness behaviour. The diagnosis is aggravation of lumbar spondylosis, with the most likely source of pain being the facet joints in the lower lumbar spine. The prognosis is that she will continue to suffer from significant pain and disability into the foreseeable future. She is permanently incapacitated for her pre-injury employment duties. It is doubtful that she could work more than two to three hours per day, three days per week in a consistent manner. The plaintiff was completely asymptomatic previously. In particular, the injury sustained in the accident is the significant contributing factor to her current lower back condition. Overall, she does not have the capacity to work on a consistent and reliable basis.
· Dr Nigel Strauss, consultant psychiatrist, report of 26 September 2018. Whilst the plaintiff had some psychiatric problems many years ago, at the time of her injury she was living a full and active life without psychiatric problems. The pain from the accident has led to the development of anxiety and depression, leaving her with a chronic mild adjustment disorder with mixed anxiety and depressed mood. Her psychiatric prognosis depends upon her physical prognosis. She has no incapacity from a psychiatric perspective.
28 The defendant has also had the plaintiff examined and no fewer than 17 reports of a medico-legal nature were put before me. I shall summarise them as follows.
· Mr Rodney Simm, orthopaedic surgeon, report of 30 August 2018 (as is obvious, this is a recent report and Mr Simm had available to him no fewer than 34 other reports and three sets of extracts from clinical notes). The diagnosis is of chronic lumbar pain initiated by a traumatic incident at work. There were pre-existing severe degenerative changes at L2-3, but no symptoms. There may be some pain and injury amplification due to longstanding emotional disturbance. The plaintiff suffers from constant, severe and unremitting pain. There was no significant exaggeration or evidence of functional overlay. She has no capacity for pre-injury employment, but could probably undertake part-time work as a receptionist or similar work with no physical component and allowing flexibility with sitting and standing. Various light work has been suggested, which could probably be done for 15 hours per week.
· Dr Philip Mutton, consultant occupational physician, reports of 18 January, 7 May and 12 June 2017 and 5 September 2018. The plaintiff has the capacity to work in certain identified employment options, such as customer service consultant, receptionist and the like. There are a number of predictable restrictions upon her activities. She could work the hours that she was working prior to the accident. The aggravation of her condition caused by the accident has not ceased. However, on the basis of her complaints of chronic pain, she does not have a capacity for work. There appears to be consistency in her presentation and it therefore appears that she does suffer from chronic low back pain. The prognosis is poor. (The observations in relation to work capacity appear to contradict each other somewhat.)
· Dr Dush Shan, consultant psychiatrist, reports of 1 and 9 October 2009, 9 June 2016, 23 March, 4 and 29 May 2017 and 31 May 2018. As is evident from the dates of the two earliest reports, Dr Shan had seen the plaintiff when she was employed by Coles. Bearing this in mind, they are of limited utility. Suffice to say that Dr Shan was of the view that the plaintiff was suffering from a major depressive disorder related to her then employment. It was viewed by Dr Shan as a recurrence or aggravation and the plaintiff had no work capacity as at that time. In relation to her present situation, she has an adjustment disorder, partly because of her personality and pre-existing condition. There is no incapacity arising from that psychiatric disorder. There appear to be physical restrictions due to procedures undertaken, but no restrictions due to the psychiatric aspects. From a psychiatric viewpoint, she could return to her pre-injury place of employment and duties. Her claimed work-related psychiatric injury is not an aggravation of the pre-existing condition of anxiety disorder.
· Dr David Elder, occupational physician, report of 12 September 2016. A chronic pain presentation against the background of a soft tissue injury to the lumbar spine. This report in essence relates to an assessment pursuant to the AMA Guides.
· Dr Stephen Stern, consultant psychiatrist, report of 6 August 2016. The plaintiff suffers from a chronic adjustment disorder with mixed anxiety and depressed mood related to the work accident. This report is also of no great assistance as it is primarily directed towards an impairment assessment.
· Dr Joseph Slesenger, occupational physician, reports of 12 and 28 August 2015 and 31 January and 23 June 2016. The diagnoses are of soft tissue injury to the lumbar spine, chronic pain disorder and some unrelated functional overlay. The plaintiff could not return to her pre-injury duties, but could perform modified duties four hours a day, four days a week. These should involve no pushing, pulling, carrying or lifting or items over 5 kilograms and no repetitive bending and twisting.
29 I accept that the plaintiff has suffered an injury which aggravated pre-existing degenerative changes in her lumbar spine and which rendered them symptomatic. As stated by her treating general practitioner, Dr Frost, the injury has stemmed from the accident and is the primary cause of her symptoms. This is essentially consistent with the diagnosis of the treating surgeon, Mr D’Urso, that the accident aggravated an underlying degenerative condition and precipitated the onset of symptoms. It is also essentially consistent with the diagnosis of Dr Verrills, who has also treated the plaintiff. He described it as a lumbar spine injury including lower lumbar facet joint pain and L2-3 discogenic pain. He supported the proposed L2-3 fusion surgery contemplated by Mr D’Urso. It is also consistent with the diagnosis of Professor Bittar that the plaintiff presents with aggravation of lumbar spondylosis and that the accident has been the dominant contributing factor to her lumbar spine condition and to her ongoing pain, disability and requirement for treatment.
30 Such a diagnosis is also somewhat similar to the findings of Mr Simm, orthopaedic surgeon, recently examining on behalf of the defendant. He diagnosed chronic lumbar pain initiated by the accident, referring to pre-existing severe degenerative changes. However, the plaintiff had previously been free of symptoms. Mr Simm also referred to features of a chronic adverse pain response. However, as earlier mentioned, there was no significant exaggeration or evidence of functional overlay in her presentation to him.
31 As is evident from the above, the plaintiff did have pre-existing degenerative changes in the lumbar spine. In this regard, I would refer not only to the opinions which I prefer, but also to the radiology. However, I am satisfied that the plaintiff had no pre-existing symptoms in her lumbar spine or in her back generally and that the symptoms and restrictions from which she now suffers emanate directly from the accident.
32 Pursuant to s325(2)(h) of the Act, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition and not otherwise. As earlier stated, the plaintiff does have a background of some psychological or psychiatric problems and particularly in relation to stresses associated with an earlier employment in approximately 2008. I also accept that, as stated by Dr Strauss, consultant psychiatrist, by the time of the accident the plaintiff had no psychiatric problems. He stated that she has no incapacity from a psychiatric perspective and that any incapacity is physically-based. This largely accords with the ultimate conclusion of Dr Shan, consultant psychiatrist, examining on behalf of the defendant, that the condition of the plaintiff’s adjustment disorder is mild and does not contribute to incapacity for work. I accept that she now suffers from a mild chronic adjustment disorder with mixed anxiety and depressed mood. The consequences of that shall not be taken into account, but I accept that it does not contribute to her incapacity for work.
33 Further, in relation to the plaintiff’s condition generally and to her psychological or psychiatric condition, I would point out that she has already undergone a considerable amount of physically invasive treatment by way of injections, hospitalisation and the like and had agreed to have fusion surgery conducted by Mr D’Urso. This did not take place because of a funding dispute, but there is no argument but that she was quite prepared to undergo such treatment.
34 I also accept that the consequences of the plaintiff’s injury are permanent within the meaning of the Act in that they will persist into and through the foreseeable future. Her treating general practitioner, Dr Frost, who has seen the plaintiff many times over the years, has stated in his most recent report that the prognosis is poor, also stating the following:
“It has been many years now and despite many interventions we have not been able to make sustainable gains.”
35 Professor Bittar has said that the prognosis is that the plaintiff will continue to suffer from significant pain and disability into the foreseeable future. Mr Simm, orthopaedic surgeon, examining on behalf of the defendant some three and a half months ago, stated that the plaintiff has an established pattern of symptoms which will persist, and that the plaintiff is not likely to respond to further injections, blocks or other measures. He could not suggest treatment that was likely to reduce her pain and improve her function. Dr Poppenbeek, occupational physician, examining on behalf of the plaintiff, has described the prognosis as poor. The most recent report from the occupational physician on behalf of the defendant is that of Dr Mutton, who also describes the prognosis as poor.
36 Leaving to one side the issue of capacity for employment to which I shall return, I am satisfied that the physical consequences of the accident from which the plaintiff suffers satisfy the definition of permanence.
(e) Other developments since the injury
37 The plaintiff continued in her employment with Heinz until November 2016. However, her normal working hours were four hours on a Tuesday, three on a Wednesday and four on a Thursday – a total of 11 hours per week. The number of stores that she visited was approximately halved and there were lifting restrictions in place. Nevertheless, her symptoms continued. Because of her physical injuries, she ceased all work in November 2016 and was ultimately made redundant in approximately March 2017. I accept that other people were retrenched at this time. There had been various periods when she was unable to work prior to cessation. She has not engaged in employment since.
38 In approximately January 2018, the plaintiff commenced a pain management program with Advanced Healthcare in St Albans. There was to be a four week trial, followed by an eight week program. At that stage, the plaintiff still had a desire to undergo lumbar fusion surgery. After the trial period, the plaintiff discontinued the program. This seems to have ceased by agreement and the plaintiff has sworn that during the program her medication was changed and she experienced significant side effects.
39 It would also appear that the plaintiff contemplated undertaking a course in order to obtain a Certificate of Education Support. It had been something which had interested her before her injury. There were initial delays in this regard because of the fact that Mr D’Urso was recommending surgery. Nothing further seems to have happened in relation to this course and there were problems because funding was not approved. It is a little hard to work out exactly what happened, but apparently there was a person willing to help the plaintiff later on when she was feeling better – see T40. However, as I understand it, it was a proposition that involved something in the nature of educational support and in the order of one day a week and, as the plaintiff said, it would have been “just to get out of the house, just to help out” – see T41.
Ruling
(a) Loss of earning capacity
40 I am satisfied that the plaintiff has discharged the burden of proof in relation to loss of earning capacity.
41 Firstly, I accept her as a witness of truth. The importance of the credit of plaintiffs in applications such as this has long been recognised. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance ...”
42 This observation has been referred to by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182.
43 In the present case, I accept that the plaintiff is a reliable witness with undamaged credit and I accept her evidence.
44 As is evident from what has been said previously, in relation to the interference with or destruction of the plaintiff’s earning capacity, I am bearing in mind the physical or organic consequences of the accident. I have set them out previously. They are of sufficient magnitude effectively to destroy the plaintiff’s capacity for suitable employment.
45 Dr Frost, her general practitioner, who knows her well and who has been treating her for many years, has stated in his most recent report of 20 November 2018 that, taking into account her low back injury alone and bearing in mind her age, work background, skills and experience, the plaintiff does not have a realistic fitness for employment in the foreseeable future.
46 Dr Ralph Poppenbeek, occupational physician, has stated that, when considering the lower back injury alone, and taking into account the plaintiff’s background and experience, the plaintiff has no capacity to work on a consistent and reliable basis because of the severity of her symptoms.
47 Dr Philip Mutton, occupational physician, examining on behalf of the defendant, has arrived at a somewhat ambiguous conclusion in his most recent report. Firstly, he said that the plaintiff had the capacity to undertake pre-injury employment, but then ultimately stated that, on the basis of her complaints of chronic pain, she does not have capacity for work.
48 Professor Bittar has also come to the conclusion that the plaintiff has no capacity to work on a consistent and reliable basis.
49 Clearly, the plaintiff had hopes of undertaking a course that might enable her to get work as a teacher’s aide, but that has not become a reality. In any event, she stated that this might enable her to do something for one day a week, which would get her out of the house. Whether even this would be a realistic prospect seems to me to be highly doubtful. As she has sworn in her affidavit of 21 November 2018, whilst she would love to return to work, she does not believe that she has the capacity so to do on any regular or reliable basis. That seems to me to be an accurate summation of the situation.
50 As is apparent, I have formed that conclusion on the basis of the plaintiff’s physical incapacity alone. As previously indicated, I accept the views of examining psychiatrists that there is no contribution from psychiatric factors to the plaintiff’s incapacity for work.
51 Having viewed the plaintiff in the witness box and read her affidavits, I am of the view that, because of her physical injury, she has been removed from the workforce and that this situation will persist into and through the foreseeable future. I prefer and accept the opinion of Dr Frost, who has been the plaintiff’s treating general practitioner for many years. He is aware of all the treatment which the plaintiff has had and, in his very recent report of 20 November 2018, has come to the conclusion that she has been fully investigated and does not have a realistic fitness for employment in the foreseeable future. There has been no sustainable improvement with treatment.
52 Of the occupational physicians who have examined the plaintiff, as is evident from the above, I prefer the opinion of Dr Poppenbeek, which was expressed in March of this year in clear terms. Dr Mutton’s conclusions are, at the best from the point of view of the defendant, ambiguous and Dr Slesenger has not seen the plaintiff for two and a half years.
53 In short, the accident has rendered the plaintiff, who was previously symptom-free insofar as her back was concerned, totally incapacitated for employment within the meaning of the Act and the authorities.
(b) Pain and suffering damages
54 As the plaintiff has been successful in relation to her application in respect of loss of earning capacity, the requirements of the Act have also been satisfied in relation to pain and suffering damages – see the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court.
55 In any event, I would have found that the plaintiff’s pain and suffering consequences are of such magnitude so as to satisfy the statutory requirements. I accept what the plaintiff has sworn in her affidavits in this regard and the views of various of the medical examiners, including Dr Frost. Indeed, Mr Simm, examining recently on behalf of the defendant, has stated as follows:
“The chronic pain, which was initiated by her back injury at work, impinges greatly on domestic and leisure activities …”
Conclusion
56 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
57 I shall hear the parties as to any ancillary orders that are required.
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