Stuart v Exego Pty Ltd
[2013] VCC 534
•30 April 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. Cl-12-00379
| MANDY STUART | Plaintiff |
| v | |
| EXEGO PTY LTD | Defendant |
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JUDGE: | HIS HONOUR CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 22 April 2013 | |
DATE OF JUDGMENT: | 30 April 2013 (Revised) | |
CASE MAY BE CITED AS: | Stuart v Exego Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 534 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Industrial Accident – serious injury application – impairment of low back – pain and suffering certificate granted at commencement of hearing – issue in application was the loss of earning capacity consequences for the plaintiff.
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to bring a claim for damages in respect of her low-back injury for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Riordan with Ms Tsikaris | Zaparas Solicitors |
| For the Defendant | Mr P G A Montgomery | Minter Ellison |
HIS HONOUR:
1 Before the Court is an application brought by Originating Motion filed on 27 July 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of and in the course of her employment with the defendant. The plaintiff alleges that in the course of her employment, and more particularly on 30 January 2006, she injured her lower back.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
3 At the commencement of the application in this case, counsel for the defendant and the plaintiff advised the Court that the defendant had granted a certificate to the plaintiff for pain and suffering damages only. The sole issue left for decision by the Court in this case is whether or not the plaintiff is entitled to be granted leave to bring proceedings for loss of earning capacity damages as a result of the injury to her lower back.
4 The following evidence was adduced or tendered during the course of the hearing:
·The plaintiff gave evidence and was cross-examined. The plaintiff tendered the following documents:
§ Exhibit A, the Plaintiff’s Court Book, pages 6 to 18 inclusive, and pages 35 to 105 inclusive.
·The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Amended Court Book pages 1 to 61;
§Exhibit 2, DVD for the date of 30 January 2012;
§Exhibit 3, DVD for the dates of 29 October 2012 and 7 November 2012;
§Exhibit 4, the Bulleen Plaza Medical Centre progress notes in respect of the plaintiff from 5 December 2003 to 16 April 2013
§Exhibit 5, the progress notes of the Prime Medical Clinic for the plaintiff between the dates of 24 August 2010 and 11 April 2013.
5 At the commencement of the application, Mr Montgomery, on behalf of the defendant, stated that the only issue for consideration in this application was, if, and to what extent, the plaintiff can work subsequent to her injury to the lower back. Mr Montgomery accepted that 60 per cent of the plaintiff’s “without injury earnings” was $406 gross per week.
6 Whilst Mr Montgomery did not nominate the credit of the plaintiff as being a direct issue in this application, it was clear from the length and content of the cross-examination that the plaintiff’s credit was in issue.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff is now thirty-five years old. She is a single woman. She has no children or dependents.
11 The plaintiff completed Year 12 in formal education. She has subsequently educated herself in the course of her employment. She obtained an office administration qualification in 2000. She obtained a Certificate of Frontline Management in 2003. She obtained a Certificate III in retail operations whilst employed by the defendant in 2008. She also obtained a Certificate III in business through her employer in 2008.[3] It is clear from the evidence in this case that the plaintiff has taken every opportunity to improve her qualifications in the course of her employment.
[3]Plaintiff’s Court Book (“PCB”) 76
Injury with the Defendant
12 The plaintiff commenced work with the defendant in February 2004. Her job was as a driver of delivery van delivering parts to customers and was also involved in customer service activities. In the course of her employment on 13 May 2005, the plaintiff was injured whilst standing at a delivery bench when an engine crane fell from the bench onto her. The initial injury was to her left hip and low back. The plaintiff continued work after a short period of time and had initial medical examinations for that injury.
13 On 30 January 2006, whilst at work and in the course of her employment, the plaintiff was asked to assist a co-worker in the lifting of three large toolboxes. It was in the course of lifting these toolboxes, which were chained and stacked together, that she injured her lower back.
14 It is not disputed by the defendant that the plaintiff was injured in the course of her employment in the manner described by the plaintiff in her affidavits. The defendant has granted the plaintiff a certificate for pain and suffering damages and hence this is not an issue in this application.
The Plaintiff’s medical treatment
15 On 31 January 2006, the plaintiff attended on her general practitioner, Dr Assad. Dr Assad was not present. She was then ordered to have a CT scan of her back on 1 February 2006. Dr Assad originally ordered the plaintiff to undergo physiotherapy treatment and to commence a gym program. The plaintiff continued with the physiotherapy treatment throughout 2007. She also continued with her work at the defendant’s premises.
16 In May 2008, her pain flared up and Dr Assad ordered a further CT scan of the plaintiff’s back. The plaintiff still continued with physiotherapy treatment and continued to work.
17 By about August 2009, the plaintiff had developed sciatica pain into her left leg. On 3 September 2009, the plaintiff had a third CT scan of her lower back. By January 2010, an MRI scan was performed on the plaintiff’s back. Dr Assad then referred the plaintiff to Mr Timms, a neurosurgeon.
18 It is from this point on that the plaintiff’s treatment becomes more concentrated. On 13 May 2010, the plaintiff underwent a nerve block at the hands of Mr Timms, neurosurgeon. The plaintiff received only short-term relief from this procedure.[4]
[4]PCB 8, paragraph 9
19 The plaintiff’s back pain and left leg pain continued. She was referred to Dr Rixon by her employer, the defendant in this case. On 5 July 2010, Dr Rixon put the plaintiff off work.[5]
[5]PCB 8
20 Dr Rixon referred the plaintiff to Dr Brian Lovell. On 22 September 2010, Dr Lovell performed nerve block procedure on the plaintiff’s lower back.[6]
[6]PCB 8
21 The plaintiff was then referred to Mr Paul D’Urso, neurosurgeon. After preliminary review and MRI examination, on 11 August 2010, Mr D’Urso recommended that the plaintiff undergo a microsurgical discectomy and rhizolysis to her L4-S1 disc. This surgery took place at the Epworth Hospital on 22 November 2010.[7]
[7]PCB 9 and 54
22 On 18 January 2012, the plaintiff underwent an MRI examination of her lower back. The conclusion of the MRI report is as follows:
“There has been interim reduction in the volume of prolapsed disc at the L5-S1 level since the previous study performed August 2010. This disc is pinching the traversing left S1 nerve root within the lateral recess. There are no further effects.”[8]
[8]PCB 104
23 This MRI examination was performed after the CT scan of her lumbar spine performed on 27 September 2011 reported as follows:
“It is unclear at which level the discectomy has been performed. It could be either at L4/L5 or L5/S1 level. There is either residual broad based disc herniation at these levels or epidural scarring consistent with the previous surgery. MRI can differentiate disc herniation from scarring.”[9]
[9]PCB 102
24 It is on the basis of these last two radiological reports in 2011 and 2012 that the plaintiff’s current medical treaters are of the opinion that she may require lumbar fusion surgery in the future.
25 The plaintiff has not worked since she was put off work by the defendant’s doctor, Dr Rixon, in July 2010. The plaintiff is currently a disability pensioner. The plaintiff’s current treatment is hydrotherapy, walking and medication to control the pain through the ingestion of Digesic, Panadol and Diazepam for assistance with her sleep. She is under the care of Dr Andrianakis, who she visits on approximately a one monthly basis for monitoring and advice.
The medical opinions
(a) Dr Peter Andrianakis
26 Dr Andrianakis is the plaintiff’s general practitioner in respect of her lower back treatment. The plaintiff was uncertain how Dr Andrianakis became her general practitioner for her low back treatment. She gave evidence that the defendant had originally advised her to go to Dr Rixon and she says she does not know how but she ended up with Dr Andrianakis looking after her lower back problem. She stated in her evidence that the reason for moving from her usual general practitioner, Dr Assad, was that the employers thought the treatment of her lower back condition was going round and round. In his report, dated 11 May 2012, Dr Andrianakis stated:
“Ms Mandy Stuart is not fit for any full time normal work duties. At best she may be able to do 2-3 hours light duties twice a week but this too is debatable and uncertain.”[10]
[10]PCB 43
27 In his latest and most recent report, dated 16 April 2013, the general practitioner, Dr Andrianakis, describes the history given to him by the plaintiff. He then concludes as follows:
“There has been discussions that she may need spinal fusion surgery, but she is reluctant to pursue further surgery unless she is at the point where she can no longer cope with the pains.
Over the past few months, I have reviewed her regularly and am of the opinion that she has no work capacity at all.”
28 It is clear that the plaintiff’s general practitioner is of the opinion that the plaintiff has no work capacity for the foreseeable future.
(b) Dr Brian Lovell
29 The plaintiff was referred to Dr Brian Lovell by Dr Rixon. Dr Lovell saw the plaintiff on 30 August 2010. His opinion, expressed in a report dated 11 May 2011, was as follows:
“It is quite clear from this that all the evidence pointed to the left S1 radicular pain which was mainly felt in her buttock and thigh, more intermittently in the more distal region. All evidence pointed to this being predominantly, if not all, work related in terms of underlying vulnerability and precipitating factors.”[11]
[11]PCB 46
30 Dr Lovell treated the plaintiff by way of transforaminal epidural injection on 22 September 2010. Dr Lovell has not seen the plaintiff since that time. It is clear from his examination that it preceded the surgery undertaken by Mr D’Urso.
(c) Mr Craig Timms, neurosurgeon
31 Mr Timms has had the advantage of seeing the plaintiff prior to her surgery in November 2010 and subsequent to the surgery. He prepared a report dated 3 October 2010. In that report he gave his opinion as follows:
“2. Diagnosis.
Ms Mandy Stuart suffers from disc prolapse in her lumbar spine largest of which is at L5-S1 with the small at L4-5.
…
6. Prognosis.
Ms Mandy Stuart is likely to remain stable whilst on light duties. I suspect that if she returns to a heavy duty work that she will experience a lot of flare up of back pain sciatica. I suspect that she will remain permanently incapacitated with regard to her pre-injury work duties, but is now able to function at a reasonable level whilst doing light duties and clerical work.”[12]
[12]PCB 50
32 Mr Timms also prepared a report dated 18 April 2012. He saw her on 1 March 2012.[13] At the time of this report, Mr Timms had the advantage of seeing the MRI scan performed at the commencement of 2012. His opinion was as follows:
[13]PCB 51
“3. Diagnosis.
Mrs Mandy Stuart has an L5-S1 disc injury, disc bulge, and a slip at L5-S1, which is most likely the cause of her symptoms and the reason why she is completely incapacitated. I am unaware of any underlying pre-existing aggravation or injury or disease.
…
5. Necessity for further treatment.
Mrs Stuart is likely to require ongoing analgesic medications, physiotherapy, and hydrotherapy. If her symptoms persist, she may require major reconstructive surgery in the form of a lumbar fusion at L5-S1.
6. Prognosis.
Mrs Stuart’s condition seems to be slightly declining and I suspect that this will continue over the next several years. As this occurs, she may require operative neurosurgical intervention.”[14]
[14]PCB 52
33 Mr Timms concludes that the plaintiff is likely to require a reconstructive surgery to her spine at some stage in the future, currently she is incapacitated due to her symptoms.[15]
[15]PCB 52
34 Mr Timms is in the best position, as a neurosurgeon, to fully assess the plaintiff’s current medical position. It is clear from his assessment and opinion, outlined above, that he does not think that the plaintiff has any work capacity whatsoever.
(d) Mr Paul D’Urso, neurosurgeon
35 Mr D’Urso was the surgeon that operated on the plaintiff on 22 November 2010. He reports the surgery as follows:
“She was taken to the operating theatre and an L5-S1 microsurgical discectomy and rhizolysis was performed. At the time of surgery, a large disc prolapse was indeed encountered. Thorough discectomy was performed. Mandy made a satisfactory postoperative recovery and was discharged after two days as an inpatient. Pathology revealed disc fragments measuring up to 22 mm in diameter.”[16]
[16]PCB 54
36 Mr D’Urso last saw the plaintiff on 21 December 2010. At that time, the plaintiff was reporting a considerable drop in her pain symptoms and that the left leg sciatica had largely resolved. The plaintiff was taking Digesic for pain and Diazepam to assist her sleep.
37 Mr D’Urso’s opinion about the plaintiff’s current fitness for work is somewhat outdated. However, in his report dated 19 January 2011, he states as follows:
“3. Current fitness for work.
I would be hopeful that Mandy would be able to return to part-time light employment in February 2011. She should have a graded increase in her hours of employment. I would be hopeful she could return to full-time light employment by March 2011. I have placed permanent restriction on her ability to perform repetitive bending, twisting and lifting activities. She should not be required to lift from below the knee or above the shoulders. She should not be required to lift weight in excess of 10 kg. Appropriate vocational assistance and retraining may be necessary to find suitable employment within these restrictions. It is unlikely that Mandy would be able to return to preinjury employment given the restrictions in the text above.”[17]
[17]PCB 54
38 Mr D’Urso has not seen the plaintiff since December 2010. The plaintiff was unable to get back to see Mr D’Urso and she resumed her treatment with Mr Timms. I accept the progression of symptoms as outlined by Mr Timms and hence the “hopeful” prognosis set out by Mr D’Urso has not eventuated for the plaintiff.
(e) Mr Chris Haw, orthopaedic surgeon
39 The plaintiff was sent to Mr Chris Haw, orthopaedic surgeon, for medico-legal reporting. Mr Haw prepared a report dated 9 November 2012. After examining the plaintiff and taking a full history which is consistent throughout her treatment with all doctors, Mr Haw concluded as follows:
“The diagnosis is therefore disc disruption of both L4/5 and L5/S1 as a direct consequence of the work injuries. It is clear she is unfit for a pre-injury employment, further treatment may be necessary by way of spinal fusion, however given that she has two level pathology, this may be a problem, and certainly should not be entered into lightly.
The prognosis is one of ongoing symptoms from the lower lumbar region.”[18]
[18]PCB 58
40 Mr Haw is in agreement with Mr Timms in terms of the ongoing difficulties the plaintiff will encounter as a result of her low back injury.
(f) Mr Peter Dohrmann, neurosurgeon
41 The plaintiff was referred to Mr Peter Dohrmann for medico-legal examination on 3 July 2012. Mr Dohrmann prepared a report in respect of his examination and based on the documentation referred to in his report. Mr Dohrmann noted that Mr Craig Timms had raised the issue of spinal fusion or further spinal injections for the plaintiff.[19] Mr Dohrmann set out his interpretation of the investigations and, in particular, the MRI which was performed on 18 January 2012. He stated as follows:
“The only imaging available for direct examination was an MRI scan of the lumbar spine performed on 18.01.2012. This revealed evidence of a very minor retrolisthesis at L5-S1.
Mild disc bulging at L4-L5, with a posterior annular fissure, was noted. There was no evidence of recurrent disc prolapse at the operated level, L5-S1.”[20]
[19]PCB 63
[20]PCB 64
42 Mr Dohrmann gave his opinion as follows:
“The diagnosis is chronic back pain and referred left leg pain, associated with an L5-S1 disc prolapse, surgically treated, without evidence of radiculopathy.
There is also evidence of an emotional disorder including depression and anxiety.
…
At present I doubt that she is fit for any alternative duties given the variable and somewhat unpredictable nature of her symptoms and due to the fact that she needs to regularly lie down to obtain some relief of back pain.
…
The prognosis is poor. It is likely that Ms Stuart will continue to describe back pain and leg pain for the foreseeable future and that her physical capacity will remain significantly reduced.”[21]
[21]PCB 65-66
43 I accept that Mr Dohrmann thought it was theoretically possible for the plaintiff to work on a very restricted part-time basis. However, he thought her medical capacity to work as a costings supervisor would be interfered with by her emotional state. In assessing the plaintiff’s condition I have to disregard the emotional state when assessing her capacity for alternative duties. On the basis of Mr Dohrmann’s opinion I accept that her physical limitations preclude the plaintiff from engaging in alternative employment.
(g) Professor Vernon Marshall
44 Professor Marshall prepared two reports in respect of the plaintiff dated 12 May 2006 and 1 March and 12 April 2010. Each of these reports pre-date the surgery performed by Mr D’Urso on the plaintiff. They were also out-of-date by some three years. As I have to make my decision based on up-to-date medical opinions, I disregard the opinions of Professor Marshall for the purposes of this application.
(h) Mr Timothy Gale, general surgeon
45 Mr Gale prepared a report dated 7 June 2011. Mr Gale gave his opinion that the disc injury suffered by the plaintiff was indeed related to her work accident in January 2006. He then gave an opinion on the prognosis for the plaintiff. It was as follows:
“Prognosis
I would not consider the worker’s clinical condition to have stabilised at this point and there should be clinical improvement over the next twelve months. However there are some non-organic features on examination today to suggest her prognosis could be poor and she may be troubled with ongoing back discomfort indefinitely.”[22]
[22]DCB 22
46 Mr Gale also went on to state in that report that the nature of her spinal injury will compromise the physical nature of her future employment capacity. This statement has proven prophetic in relation to the plaintiff’s well being.
(i) Mr Clive Jones, orthopaedic surgeon
47 Mr Clive Jones prepared three medico-legal reports for the defendant. The reports are dated 6 May 2011, 23 June 2011 and 10 January 2012. The latter two reports are almost identical in the words used. The plaintiff was not seen by Mr Jones in the period between June 2011 and January 2012. Mr Jones’ opinion is based on his examination of the plaintiff on 13 April 2011. Mr Jones sets out his opinion as follows:
“This lady has had spinal surgery to relieve nerve root pressure causing left sided sciatica. The procedure has almost completely alleviated her leg pain, but she does suffer from ongoing levels of post laminectomy backache, which is not uncommon following spinal decompression.
…
Mrs Stuart has post laminectomy backache and muscle spasm following spine surgery.
…
The worker’s treatment has been appropriate. Her sciatic has been relieved. She does require medication for post laminectomy symptoms, which will continue on a needs basis.”[23]
[23]DCB 28-29
48 Mr Jones in his latter two reports states that the plaintiff does have problems sitting for long periods. In his opinion she was able to engage in telephone answering, entering orders, using a computer or filing type work. He anticipated that the plaintiff would be limited to weights of only one kilogram. Mr Jones’s opinion was referring to prospective employment recommended by NES Vocational Assessment Report which appeared at page 33 of the Defendant’s Court Book.
(j) Professor Peter J Doherty, consultant psychiatrist
49 Professor Doherty prepared a report dated 16 April 2012. The plaintiff’s case is not a psychiatric or psychological-based symptoms case. Whilst this report details difficulties and anxiety the plaintiff may have about her mother’s Parkinson’s disease, and other issues in her life, it is not helpful to the Court in respect of assessing the plaintiff’s capacity to engage in alternative employment. I do not accept that the plaintiff’s emotional or psychiatric and psychological condition impacts on her ability to engage in alternative employment. The plaintiff’s ability to engage in alternative employment is solely influenced by her physical limitations, in particular her lower back.
(k) Dr Dominic Yong, specialist occupational physician
50 Dr Dominic Yong prepared a medical report for the defendant dated 16 May 2012.
51 On examination, Dr Yong made the following findings:
“On examination of lumbosacral spine, there was a 2cm longitudinal scar consistent with the previous surgery. There was no swelling. There was tenderness to palpation. Range of movement of the spine was 30° flexion, 10° extension, 10° lateral flexion and 10° rotation. The straight leg raise was 40° on the right and 30° on the left.
The neurological examination of the legs revealed no sensory loss. The knee and ankle reflexes were normal. The tone in both legs was normal and symmetrical. There was reduction in power bilaterally.”[24]
[24]DCB 57
52 Dr Yong then went on to summarise his findings as follows:
“Ms Stuart is a woman who has had surgery to her L5/S1 disc prolapse. She has persisting radicular symptoms.
…
I would anticipate that her pre-injury role does not comply with her restrictions and thus she does not have a current capacity to work her pre-injury duties and hours. I do not believe that she would have a capacity to return to this role.”[25]
[25]DCB 57-58
53 Dr Yong then gives his opinion that the plaintiff could perform any of the tasks set out in the NES Vocational Assessment Report dated 16 March 2012. Those activities include the jobs of enquiry clerk, data entry operator, clerical and office support worker, receptionist or call or contact centre operator. Dr Yong does not comment on whether the plaintiff is a candidate for future reconstructive surgery to her lumbar spine. It is unfortunate that he has not dealt with this issue as the Court would then be in a better position to determine his opinion as opposed to the medical opinions that were set out in the Plaintiff’s Court Book.
54 In conclusion, on the basis of the medical opinions set out in these reasons, I prefer the opinions of the general practitioner Dr Andrianakis, Mr Timms, Mr Haw and Mr Dohrmann. I find that the overall consensus of medical opinion is that the plaintiff is someone who is suffering from ongoing and serious symptoms from her low back with referral of pain into her left leg. The MRI findings confirm the opinions of the treating and examining medical practitioners.
The credit of the Plaintiff
55 The plaintiff was subjected to extensive cross-examination in this hearing. I find that I accept the plaintiff as a truthful and honest witness. There were times during the course of her evidence when she was either vague or unclear about answering questions. I do not think that was as a result of her being evasive or deceptive, rather, I think it was as a result of her being somewhat overwhelmed by the Court process and the level of cross-examination.
56 The plaintiff was shown DVD-surveillance footage. In total it was approximately 19 minutes. I watched the video during the course of the hearing and I have checked the video since that time. I accept that the video, and the actions performed by the plaintiff on it, confirm the limitations of movement and the protective manner of movement that she described in her evidence and in her affidavits. In particular, the video of the plaintiff attending to her mother at Manningham Lodge displays the plaintiff with a rigid method of walking and leaning into her mother to address the personal caring of her mother.
57 During the showing of the video the plaintiff became visibly upset at the prospect of her mother being filmed as a result of the injury to the plaintiff’s back. Whilst that level of upset and anxiety can be understood, it is clear from the film that the plaintiff is not someone who enjoys free and easy physical movement in respect of her lower back. The action of the plaintiff pushing her mother in a wheelchair up a slight ramp did not display someone who was able to engage in alternative employment in the nature described in the NES Vocational Report.
58 It is to be noted that the total surveillance of the plaintiff was reasonably extensive. In the first period, as it was described, the plaintiff was surveilled on 27 January 2012 for three quarters of an hour, on 30 January 2012 for nine and a half hours (this is the day of the filming), 31 January 2012 for five and a half hours, and 4 February 2012 for four hours. In the second period of surveillance the plaintiff was subjected to surveillance for 3.25 hours on 29 October 2012, for four hours on 7 November 2012 (the day of filming), and three hours on 8 November 2012. The total product of filming of the plaintiff was 19 minutes. To my observation, all of the filmed actions of the plaintiff were well within and consistent with her description of her limitations.
59 I conclude that the plaintiff is a truthful witness. She does not embellish her symptoms or difficulties. In fact, whilst she has complained to her medical practitioners of the level of pain that she endures as a result of her low back injury, I would assess her as being someone of stoical disposition. The plaintiff, during the course of her evidence, was clear that she tried to limit the amount of medication she took to alleviate her symptoms. I accept that that’s a reasonable thing for her to do.
60 An example of the plaintiff’s truthfulness is set out in her description of the manner in which she gets into and out of her car in her evidence.[26] The plaintiff also describes her method of shopping and taking the shopping to her car.[27] Each of those two activities are depicted on the video surveillance in exactly the manner in which the plaintiff described it before being shown those films. In short, the DVD surveillance films confirmed the evidence of the plaintiff. The surveillance film reinforced the plaintiff’s credibility as an honest and accurate witness.
[26]Transcript (T”) 31-32
[27]T32
61 The defendant relied upon the fact that the plaintiff does not take much medication and hence does not suffer much pain. As I have previously noted, I find that the plaintiff is a stoical person by nature and she does the best she can to deal with her pain. She is actively involved in hydrotherapy when it is paid for by the employer’s insurers. She engages in walking as much as she can to the point of pain. The plaintiff also does the floor exercises that have been taught to her by physiotherapists in the past. I accept that the plaintiff attempts to deal with her pain by lying down when it is most severe and the use of a hot water bottle on her lower back.
62 The plaintiff does take Digesic in order to ameliorate the pain. She also gave evidence that she takes Nurofen and Panadol, which are over-the-counter medications to alleviate her pain symptoms.
63 In her affidavit the plaintiff sets out that her sleep is interfered with by the pain from her lower back. I accept that evidence.[28] The plaintiff takes Diazepam in order to assist her achieving a night’s sleep. The fact that the plaintiff has to take that medication so that she can have a reasonable night’s rest is on its own a significant consequence for her.
[28]PCB 13-14
Loss of earning capacity
64 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, she must establish that:
(a)at the time of the hearing, the plaintiff has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
65 The measurement of loss of earning capacity as set out in sub-paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
66 The former must be calculated by reference to the six year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
67 In this case, it is agreed between the parties that the plaintiff’s 60 per cent of without injury earnings was $406 gross per week. The onus is on the plaintiff to prove on the balance of probabilities that she has suffered as a result of her physical injury to her lower back a loss of earning capacity. That loss of earning capacity must be permanent in the sense of being for the foreseeable future.
68 The plaintiff relies upon a report prepared by Leonie Schneider, for Australian Vocational Link Pty Ltd, dated 18 September 2012. This report appears at the Plaintiff’s Court Book, pages 70 to 82. In summary, Ms Schneider, after assessing the medical opinions, concludes that the plaintiff had no current work capacity and that this was for the foreseeable future.
69 As I have previously concluded, I accept the plaintiff as a truthful and honest witness and accept that she is not exaggerating her limitations or symptoms. I also accept the medical opinions of Dr Andrianakis, Mr Timms, Mr Haw and Mr Dohrmann in respect of the current medical condition of the plaintiff. Based on the medical opinions referred to, and Ms Schneider’s opinion, I accept that the plaintiff has no earning capacity and that such condition is for the foreseeable future.
70 I accept the plaintiff has satisfied me to the requisite standard that she has lost her earning capacity to at least the extent of 40 per cent reduction in her gross “without injury earnings”. I am further satisfied that such loss of earning capacity is permanent in the sense that it is for the foreseeable future.
71 Accordingly, pursuant to s134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for loss of earning capacity damages in respect of the lower back injuries suffered by her in the course of her employment with the defendant and, in particular, on 30 January 2006.
72 I will hear the parties on the question of costs.
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