Suleyman v VWA
[2009] VCC 94
•18 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01038
| SERIFE SULEYMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2009 |
| DATE OF JUDGMENT: | 18 February 2009 |
| CASE MAY BE CITED AS: | Suleyman v VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0094 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – loss of earning capacity – income from gross exertion – s.134AB(37)(f).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Clark, Toop & Taylor |
| Mr M Ruddle | ||
| For the Defendant | Mr D Brookes SC with | Dibbs Abbott Stillman |
| Mr B Anderson | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 21 January 2002 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity, pain and suffering having been conceded.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine. The plaintiff’s claim for psychiatric impairment pursuant to sub-section (c) was withdrawn during the hearing.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions;
(xi) In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: See Petkovski v Galletti (1994) 1 VR 436;
(xii) Finally, I must determine whether the impairment meets the statutory requirements established by the Act, namely whether it is permanent and at least very considerable.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is aged forty six, having been born on 10 December 1962 in Cyprus, where she attended high school. She is married and has four children.
7 The plaintiff came to Australia in 1980. Having studied English for a couple of months, the plaintiff then did assembly work with Thomas Frames for two to three years making boxes. She was then employed with Heinmann as a process worker for a year.
8 The plaintiff then worked for her husband’s business, Duna Packaging Pty Ltd, as a packer and supervisor, ceasing that employment in approximately 1998.
9 The plaintiff commenced employment with the defendant, then known as Suleyman Nominees Pty Ltd, in about July 2001 at its Dandenong premises. The business packed lollies, serviettes, napkins and nuts for sale to big companies. The plaintiff’s husband was the director of the company. He operated the business working in the office. He ran the company and directed the plaintiff as to her duties.
10 The plaintiff was in charge of quality control. She worked 40 hours per week on the floor and she supervised staff who were mostly casual. These casual staff were paid between $23 and $25 per hour.
11 When the plaintiff commenced work with the defendant, her husband provided her with cheques and some cash, which were her wages. As far as the plaintiff knew, her husband or her accountant took tax out of her wages.
12 In October 2001, the plaintiff had some pain in her back and attended a chiropractor for massage and treatment. A CT scan of her lumbar spine was carried out on 25 October 2001. This back pain did not interfere with the plaintiff continuing to work full time doing her ordinary duties.
13 On or about the said date, whilst lifting very heavy boxes, the plaintiff suffered injury to her back (“the incident”).
14 The next day the plaintiff attended Dr Allchin, who referred her for x-rays. He advised her to go off work and prescribed anti-inflammatories and other analgesics. Following a further attendance on 21 February 2002, a CT scan was organised. The plaintiff subsequently attended physiotherapy and hydrotherapy and returned to work on restricted hours.
15 During the winter of 2002, the plaintiff’s back and leg pain worsened. She continued to work for 3 hours, three days per week. She became depressed and started taking prescribed medication. She also attended a naturopath.
16 During 2003, the plaintiff continued working these restricted hours with acute pain in her back and legs and pins and needles in both legs. She could not undertake any heavy lifting or stand or sit for prolonged periods or twist or turn. Her condition worsened and she was unable to increase her hours.
17 The plaintiff was referred to Mr O’Loughlin, orthopaedic surgeon, who sent her for an MRI scan in May 2003. During 2003, the plaintiff continued on medication and received physiotherapy and hydrotherapy treatment. Those various forms of treatment did not help and she continued to experience severe pain.
18 Dr Teasdale became the plaintiff’s general practitioner upon Dr Allchin’s retirement. Dr Teasdale referred the plaintiff to Mr Pease, orthopaedic surgeon, on 16 March 2004. Mr Pease arranged an MRI on 29 March 2004. Soon thereafter the plaintiff ceased work
19 Since November 2004, the plaintiff has been under the care of Dr O’Toole, general practitioner, whom she sees every three to four weeks. She attends physiotherapy occasionally and does exercises. She takes up to four Nurofen tablets per day, Efexor, 150 mls per day and Atacand, one per day. The plaintiff continues hydrotherapy once or twice a week and she also does light gym work twice a week
20 The plaintiff has constant low back pain and referred pain into her left leg and also her right leg which is not as bad. The pain fluctuates, but when it is bad it is “really bad”. She has restricted movement of her back and her left leg pain goes to her foot which is sometimes numb.
21 About six months ago, due to severe pain and her legs going numb, the plaintiff collapsed at home and she was taken by ambulance to Berwick Hospital where she was a patient for a couple of hours. She was prescribed painkillers and a further MRI was organised.
22 Having been released from hospital, the plaintiff was referred to a further orthopaedic surgeon, Mr Teddy, who suggested continuing conservative treatment.
23 The plaintiff was then referred to Cranbourne Hospital where she underwent an 8-week program involving hydrotherapy, physiotherapy and psychological treatment.
24 Because of her injury, the plaintiff is unable to do her pre-injury work. She cannot do heavy lifting, repetitive bending or any twisting or stand or sit for any long periods of time.
25 The plaintiff has attempted to obtain some light work through Centrelink. She has been to interviews but has been unable to obtain any work. She also tried to obtain work through Serena Russo Job Placement without success. She has also looked on the internet to try and find some work but jobs she has found, such as shelf filling at Coles, she did not think she could do. She has been assessed and put on a disability pension.
26 The plaintiff tries to do vacuuming, mopping, clean the bath and hang out clothes but finds these tasks very difficult.
27 Prior to the incident, the plaintiff had a good social life. She liked dancing, especially line dancing. She is no longer able to dance. She also has difficulties shopping. She used to like walking, however, that is now restricted.
28 The plaintiff continues to suffer from anxiety and depression and she has marital difficulties. She tries to do some light gardening. She has learnt how to deal with her back pain. She still drives a car but with difficulty over medium to long distances. Her social life has been restricted greatly. She requires assistance with household tasks. She finds it difficult to lift her grandson.
29 The plaintiff believes that she could only work for 2 hours per day every second day because of the pain. Even on that basis she would not be reliable in turning up for work because when she has really bad pain she cannot stand up. She has to lie down for a couple of hours and rest every two to three hours. If she had to work in excess of 2 hours per day every second day she would collapse after a couple of days.
Lay Evidence
30 The plaintiff’s husband, Kazim Suleyman, provided a statement dated 17 August 2005. He confirmed the plaintiff started working for his company in the latter part of 2001. He has no records of when she commenced work. The plaintiff’s notation on her claim form that she started work on 2 July 2001 was in line with his recollection.
31 The plaintiff was paid by way of cheque which he raised for the running of his household that was required each week. The cheque was $500 to $1,000 per week depending on the household requirements.
32 Mr Suleyman was not required for cross examination.
33 Australian Vocational Link Pty Ltd provided a report dated 6 December 2004. It was considered at that time the plaintiff’s physical and psychological presentation precluded her from being a contender for re-training.
34 A Job Capacity Assessment was carried out following a referral on 16 October 2007. It was noted that the plaintiff’s current capacity was of 0-7 hours per week due to the significant impact of degenerative disc disease and depression.
35 It was concluded that the plaintiff’s depression, degenerative disease and disc disease were fully diagnosed, treated and stabilised and unlikely to show significant improvement within 24 months. They could therefore be considered permanent. It was noted that the plaintiff’s work capacity was significantly limited to less than 15 hours per week due to the impact of this condition.
The Plaintiff’s Medical Evidence
36 The plaintiff attended Dr Allchin on 22 January 2002 for injuries sustained lifting heavy boxes at work the previous day. She complained of back pain radiating into both legs, and he referred her for x-rays. He prescribed Celebrex and other analgesics. He last reported in March 2003. Dr Allchin’s partner, Dr Teasdale, last reported in March 2004 that the plaintiff suffered an L5-S1 disc injury in her employment. At that stage she was able to work 2 hours a day, three days a week.
37 The plaintiff has been under the care of Dr Michael O’Toole since November 2004 for treatment of back pain. He has continued to see her on a regular basis.
38 On examination on 21 July 2008, the plaintiff told him that a few weeks earlier she had suffered an acute exacerbation of pain which had somewhat settled, but she continued to complain of constant back pain radiating to her left leg. Such pain was aggravated by physical activity, especially bending. Dr O’Toole diagnosed multiple level disc degenerative disease and a depressive illness secondary to the plaintiff’s chronic pain and disability.
39 He considered the plaintiff was unable to return to her pre-injury duties, and in view of her persistent back pain, he did not believe she would ever be able to return to the workforce.
40 Mr de la Harpe, orthopaedic surgeon, saw the plaintiff on 21 November 2005 on referral from Dr O’Toole. He did not think there was enough indication to carry out fusion surgery and did he not recommend this course. He thought it was best to continue with rehabilitation and pain management. He thought the plaintiff had sustained mechanical aggravation of some pre-existing degenerative changes in the lumbar spine.
41 Mr de la Harpe reviewed the plaintiff on 7 July 2008. She complained to him of some sort of collapse four weeks earlier when she suffered back and left leg pain. He organised a further MRI. He thought the plaintiff should continue with conservative management, believing there would be no significant neural compression shown on that further testing.
42 The plaintiff was examined by Professor Teddy on 1 July 2008 at the request of Dr O’Toole. Professor Teddy felt the plaintiff had mechanical back pain with no neurological compromise. He advised that there was no clear evidence that major spinal surgery was of particular benefit to persons of her age with back pain and no neurological deficit.
43 Further, he advised the plaintiff strongly that she attend a back management course and he understood she had already made arrangements for such management. He advised the plaintiff to keep her weight down and maintain a positive attitude towards rehabilitation. He told her that should she fail to improve over the next several months he would be happy to see her again and arrange an up-to-date MRI.
44 The plaintiff was examined for medico-legal purposes by Mr Schofield on 26 June 2007. In his view, the incident caused a rupture of the posterior annulus in which the plaintiff developed acute back pain and referred left leg pain due to the prolapse. He thought the symptoms in her left thigh with weakness, wasting and numbness were consistent with the prolapse at L3-4.
45 Mr Schofield noted that the plaintiff was not improving with conservative treatment and that she was depressed about the possibility of ongoing pain and disability. He did not consider the plaintiff fit for her previous occupation as a packer but thought she would be able to conduct restricted duties as a manager as she was previously doing.
46 Mr Schofield re-examined the plaintiff on 6 January 2009. He diagnosed a disc prolapse at L4-5 causing pain in the plaintiff’s back and left leg. He considered some of her back pain may also be due to aggravation of degenerative change causing the prolapse at the lumbosacral level.
47 Mr Schofield thought the plaintiff did not have a realistic capacity for her pre- injury employment but that she did have a realistic capacity for suitable employment. He noted the plaintiff told him she would be able to work doing sedentary duties for 2 hours a day. He thought there was no current evidence to suggest her condition was resolving based on the recent MRI scan.
48 It was his view that the plaintiff should continue conservative treatment and, in particular, lose weight. He thought she was at risk of further aggravation occurring in the injured disc area even spontaneously and if that occurred she would then be a more likely candidate for surgical intervention.
49 The plaintiff was first examined by orthopaedic surgeon, Mr O’Brien, on 5 June 2003. He re-examined her on 4 December 2003, 16 March 2005, 6 February 2008, and most recently on 22 December 2008.
50 At the latest examination, the plaintiff described constant low back pain radiating to the left buttock fluctuating from 7 to 8 out of 10 on a visual analogue scale.
51 Having noted the report of the September 2008 MRI, Mr O’Brien concluded the plaintiff continued to experience some discogenic pain which had obviously fluctuated in severity. Despite what he described as a highly different report, Mr O’Brien did not believe there had been any substantial change in the plaintiff’s pathology since his first examination.
52 Given the described severity of the plaintiff’s pain over the past ten months, he thought that definitely indicated her problem was not going to resolve in the foreseeable future and therefore he considered her totally incapacitated. He did not believe the plaintiff was likely to return to gainful employment and considered that situation was permanent. He was sure the plaintiff had learned pain management strategies which allowed her to undertake light activities in a self paced manner. Nevertheless, he had little doubt she had a permanent restriction of her general domestic social and recreational activities.
53 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 25 November 2008. Examination on that date showed slight restriction of thoracolumbar spinal flexion and he found no objective neurological abnormality.
54 Mr Brownbill considered on probability the plaintiff had longstanding lumbosacral intervertebral disc derangement with some reported intermittent low back pain but without significant pain or activity restriction associated and with aggravation of the intervertebral disc derangement by the incident with resulting severe low back pain and left leg radiation which had continued in a fluctuating manner since then.
55 In his view, the plaintiff should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing. Those activity restrictions precluded her from returning to her pre- injury employment.
56 In Mr Brownbill’s view, from a neurosurgical perspective, theoretically the plaintiff would be capable of alternative work duties that avoided the actions referred to. However, noting her age of forty six and her work being limited to physical activity type duties, her demonstrated lumbar intervertebral disc derangement and her described ongoing back and left leg pain, he considered on probability, realistically the plaintiff would have difficulty obtaining employment for which she is suited.
57 The plaintiff was assessed by Ms Semra Durmaz, psychologist, on 27 January 2009. Ms Durmaz diagnosed an adjustment disorder mixed with anxiety and depression which resulted directly from the injury in the incident. In her view, psychological assessment and counselling would be critical in the management of other significant psychological symptoms such as guilt, helplessness, distress and rebuilding of the plaintiff’s self esteem. In considering the plaintiff’s psychological reaction to the injury, she thought the plaintiff was likely to retain, for the foreseeable future, some significant residual psychological symptoms.
58 A psychological assessment was arranged with Dianne Perrett Abrahams in December 2008. In her view, the plaintiff suffered from a chronic adjustment disorder arising from her physical condition. The plaintiff also suffered from chronic and pervasive depression with anxiety pursuant to her physical incapacity. Ms Perrett Abrahams did not consider the psychiatric condition prevented the plaintiff from working per se. She considered the plaintiff suffered a physical workplace injury and pain disorder, and that she would require psychological intervention in the long term to assist her adjusting to her incapacity.
Investigations
59 A CT scan of the lumbar spine taken on 25 October 2001 showed a moderate dorsal disc bulging or protrusion posteriorly on the right side at L5-S1 where it impinged on the lateral recess for the descending S1 nerve root and also on the L5 intervertebral foramina on the right side.
60 An x-ray of the lumbar spine on 31 January 2002 showed minor scoliosis of the lumbar spine convexed to the right. This was associated with minor disc degenerative changes at L3-4 with slight narrowing of the left side of the L3-4 disc space.
61 An MRI of the lumbar spine taken 29 March 2004 organised by Mr Pease showed, at L5, a right posterolateral disc protrusion displacing without compressing the right S1 nerve. There was associated mild right facet joint degeneration. The exiting right L5 nerve was also contacted without displacement. At L3-4 the left foraminal-far lateral disc protrusion and associated annular fissure contacts but does not compress nor displace the exited left L5 nerve root.
62 A CT scan of the lumbar spine taken 10 July 2006 demonstrated a right paracentral disc protrusion at L5-S1 which had been demonstrated on a previous CT scan of October 2001 and on MRI scans of March 2004 and May 2003.
The Defendant’s Medical Evidence
63 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff at the request of her solicitors on 4 December 2008.
64 It seemed to Dr Thomas that the plaintiff did have problems with her back prior to the incident and he noted that she downplayed those episodes significantly.
65 In his view, overall it appeared the incident led to an aggravation of pre- existing degenerative problems relating to the plaintiff’s lumbar spine and therefore employment was a significant aggravating factor to her lower back condition. Overall he concluded the plaintiff’s problem was likely to be symptomatic spondylosis, therefore pain arising from facet and/or disc to her lower back. In his view, the plaintiff would not have a realistic capacity for her pre-injury employment, however, she does have a realistic capacity for suitable employment.
66 Dr Thomas noted the plaintiff performed process work in the past and he thought her main restrictions would be to avoid being in any posture for any length of time. In his view, the plaintiff would need to avoid sitting for more than 45 minutes, standing for more than 20 minutes and walking for more than 20 minutes at any one time. A sit/stand position would be ideal. She would be fit to perform light process work at bench height with the need to lift between bench and chest height up to and not beyond 5 kilograms.
67 Dr Thomas believed, within these restrictions, the plaintiff could work up to 24 hours a week. If the particular job was more stringent with less flexibility in her ability to mobilise then her hours at work would be reduced. If there was a requirement to lift greater than 5 kilograms, then her hours at work would be reduced. Conversely, if she was given a position with more flexibility and lighter work to perform, then her work hours could increase.
68 The plaintiff was examined at the request of her solicitors by Dr Kornan, psychiatrist, on 27 January 2005. Dr Kornan concluded the plaintiff had a noticeable psychiatric ill-health condition. She presented with an adjustment disorder with associated disturbances of anxiety and depression caused by her employment injury. In his view, a combination of a physical condition and a psychiatric ill-health condition rendered the plaintiff to have no current work capacity which was likely to continue indefinitely.
69 The plaintiff was examined by Dr Leon Fail, psychiatrist, on 4 February 2005. In his view, the plaintiff was suffering from a chronic adjustment reaction. At that time the plaintiff was receiving anti-depressant medication and counselling, which he thought was appropriate. He considered her psychiatric condition had stabilised.
70 Professor Mendelson examined the plaintiff on 6 March 2008. On examination, she did not show any abnormalities. She described manifestations of irritability but did not describe or acknowledge the presence of any other specific emotional symptoms or particular manifestations of mood disturbance.
71 In his opinion, the plaintiff was not currently clinically depressed. He also considered there was no indication that the plaintiff had any loss of work capacity due to any diagnosable mental disorder or psychiatric impairment.
72 He considered the plaintiff’s overall prognosis was that of her physical condition and, in his view, there was no psychiatric contraindication to the plaintiff undertaking gainful employment within the limitations of her physical condition if that was considered feasible.
Loss of Earning Capacity
73 The narrative requirements to obtain leave in relation to loss of earning capacity having been conceded, the plaintiff must also establish that –
(a)
at the date of the hearing she has a loss of earning capacity of 40 per cent or more – S.134AB(38)(e)(i); and also
(b)
after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
74 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 75 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
76 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
77 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
78 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
79 The assessment of “without injury” earnings raised unusual issues in this case.
80 The primary submission by counsel for the defendant was that the plaintiff had not established what her level of gross income from personal exertion, if any, was in the three years preceding the incident.
81 Reliance was placed upon the 2001/2002 taxation return completed by the plaintiff in July 2007 which showed her income during that financial year as nil. The Notice of Assessment for that year also showed nil income.
82 It was submitted that the figures in excess of $900 set out in the employer claim form and the handwritten summary of payments made weekly to the plaintiff of varying amounts averaging $900 per week were self-serving documents and were not evidence or proof that she had earned any income from personal exertion.
83 It was submitted that the money paid to the plaintiff was more in the form of a loan as was suggested by correspondence from the plaintiff’s accountant.
84 Reference was made to a South Australian Full Court decision in Giorginis v Kastrati v Anor (1988) 49 SASR 371. It was submitted that care should be taken with the plaintiff’s evidence where she had failed to disclose her income for taxation purposes. Where she did not admit nondisclosure, saying she left the matter of tax to her husband or accountant, it was submitted that Giorginis was authority for the proposition that the court should use the income figure actually disclosed as the basis for an assessment of damages.
85 Counsel for the defendant conceded that sub-paragraph (f) of the Act not only provided for gross income from personal exertion as a means of assessment of “without injury” earnings but also took into account what the plaintiff was capable of earning in suitable employment had the injury not occurred. He did not disagree that on the basis of that limb of sub-paragraph (f), the plaintiff may be able to establish “without injury” average weekly earnings of $900 per week.
86 Counsel for the defendant accepted that there was some evidence that the plaintiff was working as a supervisor and that such evidence raised the inference that it should be accepted the plaintiff would be paid for such work, albeit in the form of a loan.
87 Whether or not it was accepted that the plaintiff earned income from personal exertion, it was submitted that she did not satisfy the statutory requirement under sub section (f) of establishing a permanent loss of earning capacity of 40 per cent or more.
88 In this regard, counsel for the defendant relied upon Dr Clayton Thomas’ view, following examination in December 2008, that the plaintiff had a capacity to work 24 hours per week in her pre-injury employment. On that basis, working for $23 per hour, the plaintiff would have the capacity to earn $552 per week and $28,704 per annum. At $25 per hour, she would earn $600 per week and $31,200 per annum.
89 Counsel for the plaintiff relied upon the second limb of sub-paragraph (f) and did not address me as to whether the plaintiff had established a level of gross income from personal exertion in the three years prior to the incident.
90 Based on the plaintiff’s capacity to earn, which was unchallenged, it was submitted it could be accepted that she was capable of earning $25 per hour working 40 hours per week resulting in a weekly income of $1,000 – 60 per cent of that sum being $600. The gross annual wage would be $52,000, 60 per cent of which is $31,200.
91 Alternatively, if the “without injury” earnings figure was $900 per week – 60 per cent of that sum is $540 per week. The gross annual wage would be $46,800, 60 per cent of which is $28,080.
92 It was submitted, based upon the view of the plaintiff’s treating general practitioner, Dr O’Toole, who has seen the plaintiff regularly for some years, and also the view of medico-legal orthopaedic examiner, Mr John O’Brien, who saw the plaintiff at the defendant’s request on a number of occasions, that the plaintiff was totally incapacitated and she had no capacity for suitable employment.
93 In such circumstances, it was submitted that the plaintiff has suffered a loss of earning capacity of 40 per cent or more that is permanent.
94 Reliance was also placed on the plaintiff’s own evidence as to her inability to work more than 2 hours per day on alternate days without having to take a rest. Her efforts to return to work and her inability to continue with light duties 3 hours per day, three days per week were also relied upon.
95 I accept that the plaintiff had the capacity in a real sense to earn $900 or more per week given her work experience with the defendant about which she was not challenged. Accordingly I accept that her without earnings figure is $900.
96 Taking into account the plaintiff’s evidence of her present condition, her unsuccessful attempt to maintain part time duties together with the preponderance of medical opinion, I accept that the plaintiff has, at best, a minimal capacity for very light employment for a couple of hours duration per day - a view supported by Mr Schofield.
97 I do not accept that the plaintiff has the capacity to engage in any work for 24 hours or so per week as suggested by Dr Thomas.
98 Accordingly, I believe the plaintiff does not have the capacity to earn 60 per cent or more of her gross income as determined by the formula in sub- paragraph (f).
99 I find that the plaintiff’s loss of earning capacity of 40 per cent or more of her pre injury earnings is likely to last into the foreseeable future.
100 Further, I am obliged to take into account matters of rehabilitation and retraining pursuant to sub-paragraph (g). I am satisfied that there is no more retraining or rehabilitation that could improve the plaintiff’s predicament as to her loss of earning capacity.
101 Accordingly, I grant the plaintiff’s claim in relation to both pain and suffering and loss of earning capacity.
- - -
0
3
0