Taylor, May v Monivale and GIO Workers Compensation
[2009] VCC 853
•22 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-05244
| MAY TAYLOR | Plaintiff |
| v | |
| MONIVALE COLLEGE | First Named Defendant |
| GIO Workers’ Compensation (Vic) Limited | Second Named Defendant |
| JUDGE: | JENKINS |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 25, 26 & 27 May 2009 |
| DATE OF JUDGMENT: | 22 June 2009 |
| CASE MAY BE CITED AS: | Taylor, May v Monivale & GIO Workers Compensation (Vic) Ltd |
| MEDIUM NEUTRAL | [2009] VCC 0853 |
| CITATION: |
REASONS FOR JUDGMENT
Catchwords: Accident Compensation Act 1985, s.134AB; Serious injury: permanent
serious impairment; Claim for Pain & Suffering & Economic Loss; aggravation of pre
existing lumbar spine degeneration; Credit issues; Application refused
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.G. Brookes SC with | Stringer Clark |
| Mr I.R. Fehring | ||
| For the Defendant | Mr P.A. Scanlon QC with | Lander and Rogers |
| Mr P.B. Jens |
TABLE OF CONTENTS
Nature of Application ..........................................................................................................2
Significant Issues for Determination .................................................................................2
Relevant Statutory Provisions............................................................................................3
Evidence...............................................................................................................................8
Plaintiff Affidavits ..............................................................................................................8
Personal Background, Education and Employment ....................................................8
Previous Interests .......................................................................................................9
Workplace Incidents....................................................................................................9
Investigations and Treatment....................................................................................10
Consequences of the Workplace Incidents ...............................................................11Financial Consequences...........................................................................................12
Oral Evidence.................................................................................................................12
Investigations ....................................................................................................................14
Evidence of Treating Doctors...........................................................................................14
Medico-Legal Opinions requested by the Plaintiff..........................................................15
Medico-Legal Opinions requested by the Defendant .....................................................20
Vocational Assessments ..................................................................................................21
Video Surveillance.............................................................................................................23
Submissions of Defendant’s Counsel .............................................................................23
Submissions of Plaintiff’s Counsel..................................................................................26
Analysis of the Evidence and Findings ...........................................................................27
Findings..........................................................................................................................28
Summary ............................................................................................................................33
Conclusion .........................................................................................................................34
Orders.................................................................................................................................35
HER HONOUR:
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Originating Motion pursuant to section 134AB(4) on 3 December 2008 by the Plaintiff, in respect of injuries which she alleges occurred in the course of her employment with the Defendant in July 2002; July 2003; and March 2004 [the “workplace incidents”]. The particular injuries specified are: posterior disc bulge indenting the thecal sac; and degenerative change at levels L4/5 and L5/S1 of the spine.
2 The Plaintiff seeks a declaration that she suffered a serious injury as defined within section 134AB(37)(a), by reason of injuries sustained in each of the workplace incidents. Leave is sought in relation to damages for pain and suffering and economic loss.
Significant Issues for Determination
3 The Defendant denies that there is any credible evidence that a serious injury resulted from either of the first two workplace incidents, from which it is alleged she made a complete recovery.
4 The Defendant concedes that the Plaintiff suffered a compensable injury in the third workplace incident. However, they deny that the Plaintiff has suffered a serious injury as defined. In particular, the Defendant claims that any aggravation to pre existing degenerative disease suffered by the Plaintiff as a result of the third work place incident has completely resolved or alternatively the consequences do not qualify as a serious injury.
5 Clearly the Plaintiff carries the onus of establishing that she suffered serious injury, namely a permanent serious impairment or loss of function of the lumbo sacral spine. The effect of s 134AB(38)(h) is that “the psychological and psychiatric consequences of a physical injury” are not to be taken into account in considering whether the applicant’s impairment is of that quality.[1]
[1] Such psychological consequences were raised in the assessment of Mr Kierce
6 I will now deal with this application as follows:
a) I will briefly deal with relevant statutory provisions;
b) I will briefly summarize relevant evidence from the Plaintiff’s affidavits and oral evidence which attest to the occurrence, nature and extent of her injury and the effect upon her; c) I will refer to relevant medical opinions which characterise such injury and clinical findings made at various times subsequent to the workplace incident; and d) I will then give my factual findings and reasons as to the nature of the injury suffered and the consequences for the Plaintiff. 7 The Plaintiff bears the overall burden of proof.
Relevant Statutory Provisions
8 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising
out of, or in the course of, or due to the nature of, employment
if employment of that nature was a significant contributing
factor, and the injury is a serious injury and arose on or after 20October 1999.”[2][2] By Act No. 95/2003 s.3(8) the words “employment of that nature was a significant contributing factor, and” were omitted from sub-section 134AB(2) as from 3 December 2003,. In this case two workplace incidents precede this amendment and the last was subsequent to this amendment.
9 For the purpose of the current application “injury” means any physical injury and includes:
(c)
the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation,
acceleration, exacerbation or deterioration.”[3]
[3] Reprint 12 (page 13).
10 For the purpose of the current application “serious injury” means:
[4] Section 134AB (37)
(a) permanent serious impairment or loss of a body function[4] 11 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that impairment or loss of a body function [under paragraph (a) of the definition] is “serious”. It does this by
reference only to the consequences to a worker.
(38) For the purposes of the assessment of “serious injury” in accordance
with the sub-sections (16) and (19)-(b)
the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any… impairment or loss of a body function… with respect to-
(i) pain and suffering; or
(ii) loss of earning capacity -
when judged by comparison with other cases in the range of
possible… … impairments or losses of a body function ….
12 Section 134AB (38)(c) deals with paragraphs (a) and (b) only of the definition of serious injury and provides, so far as it is relevant to this case, as follows:
(c) an impairment or loss of a body function … shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function,… fairly described as being more than significant or marked, and as being at least very considerable; 13 Paragraphs 134AB(38) (e), (f) & (g) make further detailed provision as to loss of earning capacity. In particular, paragraph (e) expressly casts upon the worker the burden of establishing that he or she has, at the date of the hearing of the application, “a loss of earning capacity of 40 per centum or more” and that that loss will “continue permanently”. Paragraph (f) then explains how to measure the loss and paragraph (g), directs the court to bring to account the possibility of rehabilitation or re-training. Throughout, the burden of proof lies on the Plaintiff.
14 Paragraph 134AB(38)(e) directs that…
a court shall not grant leave under sub-section (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of
paragraphs (c) or (d), as the case may be, that –
(i) …at the date of the hearing of an application under sub-section (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured …as set out in paragraph (f)”; and
(ii) the worker ...will after the date of … the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more.
15 Paragraph 134AB(38)(f) sets out how the loss of earning capacity is to be measured. It requires a comparison of “after-injury earnings” and “without- injury earnings”[5] :
[5] Barwon Spinners Pty Ltd & Ors v Podolak; St. Laurence Community Services (Barwon) Inc & Ors v. Gledhill; Stojanovski v Bartter Enterprises Pty Ltd & Ors; and Pausak v Barwon Health & Ors [2005] VSCA 33 (herein collectively referred to as “Barwon Spinners”) @ para 22
16 “After-injury earnings” is described as: the worker’s gross income from
personal exertion (expressed at an annual rate) which the worker is earning or
is capable of earning in suitable employment as at that date [being the date of
the hearing of the application before the court]”17 “Without-injury earnings” is described as: 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.
18 “Without-injury earnings” are 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 had the injury not occurred.19 The Court is therefore required to go well beyond actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out “as most fairly reflects the worker’s earning capacity”.[6]
[6] Barwon Spinners @ paragraph 23
20 Paragraph 134AB(38)(g) provides:
(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or re-training, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining,. a capacity for any employment including alternative employment or further or additional employment. which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred”. 21 The Court of Appeal said:[7]… the expression “if exercised” means “if exercised
in employment”. Parliament is looking here to a physical capacity for work
which, if exercised in employment, would bring about the result that the
worker was earning more than the limit relevant to serious injury. It is not
concerned with whether employment will or will not be obtained: it is
concerned rather with the economic yield of such work, if the capacity for thatwork was in fact exercised in employment.[7] Barwon Spinners @ paragraph 27
22 The Court of Appeal further concluded:[8] Accordingly, we would reject the
argument that paragraphs (e) to (g) of sub-s.(38) are concerned with anything
but the physical or mental capacity of the injured worker to work again. That
appears consistent, too, with the expression found in paragraph (b) of sub-
s.(38), and as well paragraph (c) – namely:-". . . when judged by comparison with other cases in the range of
possible impairments or losses of a body function etc. etc.”.[8] Barwon Spinners @ paragraph 28
That describes an objective test, not a subjective one [As pointed out in
Humphries v. Poljak.], and it supposes a wide spectrum of cases which, if the argument about non-employability by reason of the making of the claim were accepted, would be very significantly reduced – and reduced without sufficient
justification .
23 Paragraphs 134AB(38)(f) & (g) both refer to suitable employment[9]. Hence for the purpose of calculating after-injury earnings the Court must bring to account, in addition to actual capacity, any capacity for employment which is, or would be, the result of rehabilitation or re-training.
[9] Defined in section 5
24 In applying the term “suitable employment” the Court of Appeal noted that…Obviously employment is not to be regarded as “suitable” if situated too
far from the worker’s place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing “suitable employment” for a worker resident in Melbourne. The expression “whether or not that work is available” emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently
skilled, perhaps after rehabilitation, is sufficiently close by and is able
physically to do a particular job, then that is “suitable employment”, whether ornot the job is currently available.[10][10] Barwon Spinners @ paragraph 25
25 In summary, for the purpose of assessing loss of earning capacity, a Plaintiff must in effect first satisfy the requirements of paragraphs (e), (f) and (g) and then the Court must still be satisfied that the consequences to the Plaintiff of the impairment or loss of body function with respect to loss of earning capacity
is, when judged by comparison with other cases in the range of possible
impairments or losses of body function, fairly described as being more thansignificant or marked and as being at least very considerable.[11][11] s.134AB(38)(d) and refer also Barwon Spinners paragraph 75
26 If a worker establishes that the injury is a serious injury by reference only to consequences of pain and suffering, the worker is entitled to bring common law proceedings in accordance with sub-s. (16)(b) for the recovery of
damages for pain and suffering only (sub .s (17)).
27 The assessment of “serious injury” shall be made at the time that the application is heard by the court [paragraph 134AB(38)(j)].
28 The Court of Appeal has emphasized the necessity for a Court to analyse the evidence in terms of the statutory requirements.[12] The appropriate approach to determine serious injury has been reduced to the following questions: first, what is the injury or injuries and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to persist for the foreseeable future; and thirdly, are the consequences for the Plaintiff such as to satisfy the more than significant or marked and as being at least very considerable” test.[13]
Evidence
[12] @ paragraph 71
[13] Barwon Spinners @ paragraph 33
29 In support of the Application, the Plaintiff relied upon:
(a) Exhibits identified and contained in the Plaintiff’s Court Book comprising medical reports, affidavits and other documents; and (b) Oral evidence given to the Court by the Plaintiff. 30 Opposing the Application, the Defendant relied upon Exhibits identified and contained in the Defendant’s Court Book comprising medical reports, affidavits and other documents; video surveillance; tendered taxation returns; and an extract from the transcript of Tew v Ambercoat dated 26 May 2009.
Plaintiff Affidavits[14]
Personal Background, Education and Employment
[14] 27 November 2007 and 19 May 2009
31 The Plaintiff was born on 30 September 1949 and is now 58 years old. She was the fifth of nine children. She is married with three adult children, two of whom are independent. The Plaintiff relied upon two affidavits15 and oral evidence.
32 The Plaintiff was born in Hamilton and attended Hamilton High until half way through Year 9, leaving at age 14 years.
33 After leaving school she worked at the Hamilton Laundry Service for twelve months and then worked for the Hamilton Base Hospital for 26 years doing kitchen work and delivery of meals to wards. She had the occasional period off work whilst having children, but returned to work soon after having each child. She ceased working at the hospital in 1994 and then worked as a child minder through the Hamilton Council for about 5 or 6 years. During this time she was based in her own home.
34 She then commenced work with the Defendant in 2002. Initially she cooked on weekends and then became a kitchen hand about six months later as the Defendant employed an apprentice chef to do the cooking. I note from the Plaintiff’s Employment History that she was engaged for 25 hours per week as from 15 July 2002.16
Previous Interests
35 Prior to the workplace incident she enjoyed looking after her house. She loved gardening and spent a lot of time both after work and on weekends in the garden. She also enjoyed sewing and riding bikes with her grandchildren and attending local football both in Hamilton and away. She and her husband enjoyed a healthy uncomplicated physical relationship.
Workplace Incidents
36 On 29 July 2002 she hurt her back when she slipped on water on the floor near the dishwashing area in the kitchen. After seeing her general practitioner the next day she stopped work for a few weeks during which time she took some painkillers and anti-inflammatory medication and underwent some hydrotherapy. She improved over the next couple of months and returned to work on 7 October 2002.
37 On 22 July 2003 she hurt her neck, right shoulder and back when she was trying to swing a bag of rubbish up into a skip. Once again she was off work for a while, but eventually made a full return to work on 9 February 2004. I note that her hours were increased to 27.5 per week from 5 March 2004.17
38 On 18 March 2004 she walked out of the kitchen at the College towards the
dated 27 November 2007 and 19 May 2009
DCB 79
DCB 79.
coolroom. There was a bag of rubbish opposite the coolroom door. The bag was apparently leaking food liquid onto the floor which she did not notice. As she went to go to the coolroom her legs went out from under her and she landed on the ground flat on her back.
39 She felt immediate pain in the back and her right hip and leg and to a lesser degree in her head. She had never felt pain like this before. She was helped up by two students but was the only one present at the time so she continued working.
40 She saw Dr McAllen, her local general practitioner, the next day and he prescribed painkillers and rest. This time she also had some spasm and pain in the low back. She was treated with Prednisolone, hot and cold packs and analgesia. She did not return to work until late August when she recommenced doing three hours two days a week and gradually increased a week or so later to six hours a week.
41 Modifications were made to the workplace including non slip mats, correctly placed seats and sinks. However, she still struggled at work and gradually reduced hours until approximately 24 March 2005 when she ceased work altogether. She subsequently claimed and received weekly payments under Workcover.
42 The Plaintiff states that she genuinely attempted a return to work on a couple of occasions but was in pain the whole time and there did not seem to be any light duties available to her. After consultation with the Defendant her general practitioner advised her that she could not do the kitchen duties.
43 I note that the medical reports give a variable account of the timing and efforts of the Plaintiff to return to work following her third work place incident. Dr McAllan records that she attempted to return to work in September 2004 while Mr Kierce [in June 2005] was given a history that she did not return to work until February 2005.
Investigations and Treatment
44 The Plaintiff continues to see her local general practitioner for certificates and prescriptions. She has tried to cut down on the amount of Panadeine Forte she was taking, which at one stage was taking up to 10 tablets a day. She now continues to take Panadeine Forte together with Tramadol and other medications.
45 On 8 June 2007 the Plaintiff suffered an aneurism from which she has subsequently recovered. Her short term memory has been affected which she deals with by writing lists of things to do. However she does not find that she has any trouble remembering routine activities.
Consequences of the Workplace Incidents
46 Daily the Plaintiff takes the following medication for pain relief: 8 to 10 Panadiene Forte; slow release Tramal, once or twice; and Tramadol, 1 tablet but will increase her intake when the pain is more severe than usual.
47 She continues to experience constant lower back pain. It is generally an ache but becomes the sharper pain when she aggravates her back. Sitting down and getting up, general housework, walking and bending can all aggravate her back pain. Most days she will suffer a sharp pain at some stage due to activities. Generally this settles back to my normal pain level fairly quickly but from time to time it will persevere.
48 She sleeps badly, waking every 2 or 3 hours and can now not remember the last time she slept through the night.
49 Her remaining daughter living at home does most of the housework.
50 She has not been intimate with her husband for a long time.
51 She feels unable to play with her three grandchildren or help her daughter with them.
52 She walks as much as she can, but otherwise sits around the house and hardly does anything throughout the day other than sit and watch her budgies.
53 She cannot go to the pictures because she cannot sit down for 2 to 2 ½ hours. She cannot sit in the car at the football so she does not attend the football any more.
54 Her daily routine involves her getting out of bed at about 7.30 am and having a shower to help loosen her up and get mobile. She hardly does anything throughout the day. She will do some tidying up and take her dog for a walk.
55 The Plaintiff really misses her job and loved being around the students. Most of the students that she dealt with were boarders who did not see their parents for 3 or 4 months at a time. She found that she got attached to certain students; two of them still write to her.
56 She now feels incapable of work. In particular she feels that because she was unable to handle work like standing at a sink washing dishes on the Defendant's premises, there were not many jobs out there that she could do. Despite this she still looks in the paper and her family and friends watch out for work that they think she might be able to manage.
Financial Consequences
57 At the time she stopped work she was earning approximately $400.00 per week. Her gross income was as follows for the financial years ended 30°i June:
Gross Business Income/Wages Net Business Income
1999 $7,064/Nil 4954 2000 $28,981/Nil 15,789 2001 $26,095/Nil 21,008 2002 $13,030/5,417 10,313 2003 Nil/$16,230 2004 Nil/$17,434 2005 Nil/$17,355 2006 Nil/$6,141 2007 Nil/$19,151 2008 Nil/$19,260 Oral Evidence
58 In her oral evidence the Plaintiff confirmed the contents of her affidavits. Prior to commencing with the Defendant the Plaintiff did not work for about 12 months and prior to that she conducted a daycare business for the Hamilton City Council for about five or six years. During this time her husband was conducting his business. When she commenced with the Defendant she was not doing any work for her husband. She could not explain why her Income Tax returns for the year's 99 and 2000 did not record income from the child minding business.
59 She confirmed that her current medication comprises Tramal; Tramadol; and Codalgin Forte, a form of Panadeine Forte. Under re examination she said that she ceased getting migraines in June 2007 after her aneurysm
60 Under cross examination, the Plaintiff was questioned about the business income allocated to her in the financial years 1999 to 2002 inclusive. She claimed to be unaware that income had been attributed to her name or that she had incurred business expenses. She stated to the effect that this was her husband's business and she performed a minimal role, comprising taking some telephone calls, performing the banking and some paperwork. She still answers the phone for her husband's business occasionally and will do his banking. She agreed that she could perform the duties of receptionist if she had the flexibility to stand up and sit down as she required.
61 The Plaintiff was referred to evidence given by her daughter in the previous week which could be interpreted as confirming that the Plaintiff had assisted her daughter in the house about one month after her third workplace incident. She denied assisting her daughter.
62 The Plaintiff described a typical day as getting up anywhere between 7.30 and 9.30, sitting around for the first half hour then she would shower, make her bed and perform a little bit of light housework.
63 She described her previous day's activities as including: attending an appointment to have her eyes tested; receiving visitors at home in the afternoon; and then going out to buy some takeaway dinner.
64 She agreed that she had never received treatment from an orthopaedic surgeon and currently sees her general practitioner for the purpose of obtaining Workcover certificates and medication.
65 She agreed she could do light dusting and emptying light rubbish bins in an office environment if the work were available.
Investigations
66 A CT scan of the lumbosacral spine performed on 15 August 2002 following the Plaintiff’s first workplace incident is reported: no abnormality
demonstrated.
67 An x-ray of the Dorsal and Lumbosacral spine performed on 29 March 2004 following the third workplace incident is reported as follows:
Dorsal Spine: mild osteo arthritis noted. No fracture demonstrated
Lumbosarcral Spine: a mild left concave scoliosis is present. Mild degenerative changes are noted. No fracture is demonstrated.
68 A CT scan of the Lumbar Spine performed on 1 April 2004, following the third workplace incident is reported:
mild degenerative change but no stenosis or significant protrusion seen.
Evidence of Treating Doctors
69 Dr Andrew McCallum General Practitioner, first examined Plaintiff regarding any back problems on 31 July 2002 following her first workplace incident. She complained of some tenderness in her lower back and decreased pinprick sensation between her first and second toe on the left- hand side. She was treated with anti-inflammatory medication and slowly improved over the next couple of months, returning to work on 7 October 2002. A CT scan performed on 15 August 2002 did not show any abnormality.
70 The Plaintiff was seen again on 25 July 2003 following her second workplace incident. On this occasion she presented with muscle spasm and tenderness at the L3-5 level with para-vertebral spasm. She was treated with Prednisolone, hot and cold packs and analgesic. Her back pain was slow to improve and she returned to work on reduced hours in August which were gradually increased.
71 The Plaintiff was seen again following her third workplace incident on 22 March 2004. She was unable to work until 20 September when she attempted to return to work with modifications to her workplace. Dr McAllan considered that the work duties being performed by the Plaintiff were physically too demanding for her. She still struggled with the reduced hours and ceased work together on 24 March 2005…It is clear that [she] has a significant degenerative back condition.[18] On this occasion she suffered side-effects to anti-inflammatory medication and got minimal improvement with physiotherapy. Dr McAllan further notes that she was severely restricted in terms of her home duties.
[18] PCB 27
72 In relation to the CT scan performed in April 2004 Dr McAllan suggested that they have not fully demonstrated her back problem, which may be more apparent on an MRI. As at April 2006 Dr McAllan thought it unlikely that the Plaintiff would be able to obtain any meaningful work in light of her age and limited educational background.
73 In his final report of 18 April 2008 Dr McAllan noted that the Plaintiff’s back is relatively stable. However recently she had an increase in back pain when she tried to do some minor bending in the garden which would indicate that whilst stable when not doing any physical work, it is liable to break down fairly simply. Her daily back pain is normally manageable.
Medico-Legal Opinions requested by the Plaintiff
74 Mr Kenneth Brearley Surgeon first examined the Plaintiff on 10 May 2006 when he made a brief record of the first two workplace incidents, noting that after the second incident she was off work for a few weeks.
75 After the third workplace incident Mr Brearley notes that she was off work for several months and after attempting to return to work on reduced hours she had to cease altogether and has experienced ongoing back pain. She advised Mr Brearley that a doctor told her she could not return to work. However she has offered to do some light work at the College if it were available.
76 The Plaintiff complained of lower back pain whenever she attempts to do any manual type of work. She can no longer perform gardening and has difficulty with the heavier aspects of the housework. She has difficulty sitting, standing or walking for long periods and has pain on bending, stooping or lifting. Her medication at that stage comprised Panadeine Forte, 10 per day for her back pain and migraine headaches; Tramadol SR at times and Aropax for anxiety attacks. On examination her back revealed no deformity or tenderness with only moderate restriction of movements in all directions by pain. Reflexes, sensation and power were all normal in her legs.
A precise diagnosis and cause of her back pain has not been established …the probability is that she does have quite marked degenerative disc disease involving the lumbar spine, and this has been aggravated by the three specific falls, …Had she not been doing the work it is unlikely that she would be having any back pain at this stage.
77 Mr Brearley assessed the Plaintiff again on 25 June 2008 when she again complained of continuing back pain and difficulty carrying out her own housework. Any form of manual work worsens the low back pain as does sitting or standing for long periods or any significant lifting or bending and stooping. On examination she was noted to walk slowly and with a slight limp and exhibited moderate limitation of movements by pain. Deep reflexes and sensation in her legs were again normal.
78 Mr Brearley concluded that:
The most likely diagnosis here is that extensive degenerative disc disease involving the lumbar spine which has been aggravated by the various falls referred to at work… she has constant low back pain and certainly the physical examination confirms marked limitation of movements by pain…She is certainly unfit for any manual labour and she is unfit for her previous duties. Because of her age, education, previous work experience and present ongoing disability there is no realistic probability of any employer ever being likely to offer her paid employment…[19]
[19] PCB 41
79 Mr Brearley examined the Plaintiff a third time on 18 March 2009 when he confirmed that there had been no change in the condition of her back and …
the main reason why she is unable to work is her continuing back pain. She
remains unfit for manual work and this is permanent. This results from
aggravation of pre-existing degenerative changes in the lumbar spine. There is no evidence of radiculopathy. She does have some symptoms of nerve root irritation with pain in the left side and some numbness in the foot times…[20]
[20] PCB 43-44
80 Mr John O'Brien Orthopaedic Surgeon examined the Plaintiff on 10 May 2006 when he took a history of the three workplace incidents. Mr O’Brien noted that after the first incident pain resolved completely after about a month. After the second incident the Plaintiff suffered both Nick and low back pain. The neck pain resolved and her back pain improved sufficient for her to return to work, initially on light duties. After the third incident the Plaintiff reported shooting pain extending from her low back proximally up her back. On this occasion she was unable to return to work for at least six months. She attempted to return on a limited hourly basis of three hours for three days per week. Mr O'Brien noted that after a few weeks her pain increased and she ceased to employment and she was unable to cope. In summary, Mr O’Brien reported:[21]
[21] PCB 47-48
Mrs Taylor presents describing three specific incidents. The original fall in 2002 precipitated back pain but this apparently resolved allowing the patient to return to normal work. The second incident, when she was putting garbage into a skip, resulted in the recurrence of back pain, which although apparently improved, did not resolve. As a consequence the patient returned to work but her duties remained somewhat restricted. Following the third incident which involved another fall onto her buttocks, the patient indicates constant back pain. On this occasion an attempt at return to work failed and the patient described persisting pain but has not responded to conservative treatment… The physical signs now indicate restricted lumbar movement with local tenderness but no sign of any nerve root involvement. Indeed in the absence of x-rays I would suggest this almost certainly represents mild discogenic pain secondary to aggravation of underlying number are spondylosis. There is certainly no clinical evidence of any frank disc herniation.
As a consequence of chronic back pain this patient is moderately disabled. Indeed I would be confident that she could not return to her pre-injury occupation, which involved quite heavy physical duties. Unfortunately the patient was unable to even cope with modified duties and thus the nature of her chronic pain would suggest it is now unlikely that she will be able to return to any form of gainful employment. Indeed her general activities will continue to be restricted by chronic pain and I have no doubt that this will impact upon her domestic and recreational activities. Indeed, in my opinion, this patient would not be able to return to any form of manual labour, and given her employment background I would suggest there is really no possibility she will return to gainful employment.
81 Mr O’Brien re-examined the Plaintiff on 8 July 2008 when she complained that:
… her back and leg pain have not changed in the two years since my initial examination [and]… describes constant pain in her low back which radiates into both buttocks and down the natural aspect of both thighs to the knees… back and leg pain is now aggravated by prolonged sitting and standing, walking up and down stairs and walking on the flat for more than 200 m. Tasks such as vacuuming and hanging out washing aggravates the pain… the pain is also worse when she stands after prolonged sitting…
82 On examination the Plaintiff appeared to move relatively freely and did demonstrate a normal gait. Her examination was otherwise unchanged. In conclusion Mr O’Brien noted:22
the patient has described two work-related incidents in the course of her employment which precipitated episodes of back pain which in fact responded to conservative treatment. A third incident in March 2004 again precipitated back pain associated with bilateral leg pain, which did not respond to conservative treatment as a consequence of which the patient has described since that time constant back and leg pain. If the patient's medical condition appears to remain very much unchanged in the past two years as the patient again presents with definite restriction of lumbar movement without any signs to suggest nerve root involvement or the presence of radiculopathy. I would therefore conclude that this patient continues to suffer from symptomatic lumbar spondylosis and thus I would consider that this is the source of her now chronic back and leg pain. I would conclude from the history that the employment remains a significant contributing factor…The patient in my opinion remains totally incapacitated and physically incapable of returning to her pre-injury employment.
83 Mr O’Brien conducted a final examination on 18 March 2009 when the Plaintiff again gave a similar history. Her medication now comprises 8 Panadeine Forte per day as well as 2 Tramal tablets. She receives no other physical treatment but attends the pool to do some exercises once per week. She can perform the activities of daily living. However she does require assistance with heavy domestic tasks. Mr O'Brien recorded similar results to his previous examination except that he noted that the Plaintiff presented with a slight right-sided limp.
84 Mr O’Brien’s conclusions were essentially unchanged. He confirmed that the Plaintiff presented with moderate disability due to ongoing back pain and confirmed that her signs remain indicative of symptomatic lumbar spondylosis with no evidence to suggest any specific radiculopathy… there is no indication
for further investigations and I would suggest that ongoing treatment is now
directed towards pain management…2385 Mr David Brownbill Consultant Neurosurgeon first examined the Plaintiff on 21 July 2006 and also took a history of the three workplace incidents. After the third incident he noted:24
She made several attempts to return to work but unsuccessful and ceased
in late 2004 and has not returned… She stated that the back and leg pain had never gone away completely since she ceased work… she described her current low back pain as… nagging and burning in nature being present all the time with fluctuations. It is worse with prolonged sitting or bending. On examination …She was alert and cooperative without embellishment, …
examination … has shown restriction of thoraco lumbar spinal movements but no objective neurological abnormality. There were no signs of
PCB 50-51
PCB 54
PCB 59-60
radiculopathy…Radiological investigations have demonstrated multiple level lumbar spine degenerative changes. On the information provided I consider this lady had longstanding asymptomatic lumbar spine degenerative changes which were aggravated by the three described work incidents, but particularly by that of 18 March 2004 …I consider that on probability she will not be able to return to any work for which she is suited.
86 Mr Brownbill re-examined the Plaintiff on 22 May 2008 when the Plaintiff reported no change. He again concluded:[25]
[25] PCB 63-64.
As I stated in my earlier report, I consider this lady had longstanding asymptomatic lumbar spine degenerative changes which were aggravated by the three described incidents and might also consider she should in the future avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting …I remain of the opinion that she would not be able to return to her pre-injury employment because of her back injury and on probability, she would not be able to return to any work for which she is fitted because of that back injury.
Medico-Legal Opinions requested by the Defendant
87 Mr Paul Kierce Orthopaedic Surgeon examined the Plaintiff on four occasions, the first being in May 2004, shortly after the third workplace incident. At the first consultation, the Plaintiff could not give any history about the first workplace incident and in relation to the second workplace incident reported that she had returned to work full-time on normal duties in March 2004. Following the third workplace incident Mr Kierce concluded that the Plaintiff had further aggravated her lumbar disc lesion at L4-5 but there were signs that she had largely recovered from that injury. At that stage Mr Pierce considered that the Plaintiff was suitable for a gradual return to work.
88 Mr Kierce next examined the Plaintiff on 17 May 2005 after she had attempted to return to work but ceased after about one month because she found that even the light work duties aggravated her back pain. Mr Kierce confirmed that in his opinion the Plaintiff had recovered from the aggravation of the pre- existing disc degeneration at L4/5. Mr Kierce queried how motivated she was to return to work.
89 Mr Kierce next examined the Plaintiff in July 2006 when he concluded that she was firmly entrenched in an invalid role.
She demonstrates signs of abnormal pain behaviour and I believe is suffering from chronic pain syndrome… I believe that [she] does suffer from a degree of backache with radiation of pain into the backs of her legs… but I believe that her current condition is magnified by psychological factors and she has adopted the role of an invalid... physically I would have thought [she] should be able to undertake work which did not involve prolonged or frequent bending, the lifting of weights greater than 10 kg, pushing or pulling of trolleys or prolonged standing or sitting. I believe that due to psychological factors, she is permanently unfit for work... the aggravation of pre-existing degenerative arthritis of the lumbar spine sustained by her in the course of her occupation, has now ceased [26]
[26] DCB 34
90 Mr Kierce finally examined the Plaintiff in July 2008 and made findings consistent with those made by Dr Wallin. On this occasion he concluded as follows:27
the worker is suffering from a degree of lumbar spondylosis. Originally this had been aggravated by her injuries in the course of her work in July 2003 and March 2004
the injury was an aggravation of her pre-existing lumbar spondylosis. The work component has not resolved… she is still suffering from lumbar spondylosis which is materially contributing to any partial incapacity for work or the need to treatment of services
the worker does have a current capacity in my opinion. She should not be involved in work which involves prolonged or frequent bending, lifting of weights greater than 10 kg, the pushing or pulling of trolleys or prolonged standing or sitting…
Vocational Assessments
91 Bill Radley Psychologist prepared a vocational assessment following interview with the Plaintiff on 4 December 2006. He was supplied with the medical reports to that date of Dr McAllen. Mr Brearley, Mr O’Brien and Mr Brownbill. In summary, Mr Radley noted that the Plaintiff had been a kitchen hand with a year nine education and no other job qualifications. She has only ever worked in unskilled and semiskilled occupations, all of the manual -- practical nature and at the lowest end of the occupational skill range. She has no other work skills, qualifications or experience. The medical reports provided to Mr Radley all indicated that the Plaintiff exhibited marked degenerative disc disease involving the lumbar spine and as a result of her workplace injury she is limited in her ability to stand, sit and walk; and stoop or twist. She is also restricted in her weight-bearing capacity.
92 Mr Radley conducted psychological testing which indicated that the Plaintiff is shy, practical and self-reliant who is experiencing a moderate level of anxious and depressed mood. Her level of general intelligence is in the low average range and by reason of her age and low level of general education Mr Radley did not consider that she had the ability to undertake occupational retraining. In light of her existing qualifications, skills and experience and physical limitations Mr Radley assessed the Plaintiff as having no current capacity for either her pre-injury employment or any other suitable alternative employment. She also has no capacity to undertake any type of occupational retraining.28
93 Assoc. Professor Maurice Wallan Consultant in Occupational Health Safety Rehabilitation and Legal Medicine examined the Plaintiff on 22 October 2008 and relied extensively upon the latest assessment conducted and reported by Mr Kierce. Dr Wallan’s examination of and history taken from the Plaintiff was consistent with Mr Kierce’s report.
94 Dr Wallan concluded that the Plaintiff:
… does have very active ongoing back disability which appears to me to
possibly be due to active discogenic pain although I confirm that Mr Kierce did record it to have actually involved work aggravation of spondylosis of the back. He confirmed that during examination she had very restricted
DCB 40-41
PCB 72
back movements, that she had very active low back pain to palpitation etc but that she did not have any radiculopathy, however Mi Kierce did record the presence of significant clinical abnormalities at the time of his examination… and I confirm that my examination… produced results correlating very closely to those recorded by Mr Kierce.
In relation to the worker's capacity to return to work I confirm that based on her current condition, that is her active symptomatology, her physical restrictions, her treatment needs etc and the fact that her back has not progressed towards recovery since injury, that the worker realistically…[has]… no current capacity for any form of suitable employment now or at any time in the future…[29]
[29] PCB 110
Video Surveillance
95 Covert video surveillance was shown of the Plaintiff on the following dates: 10 February 2009 and 9 June 2009.
96 In the first video the Plaintiff is seen walking together with her daughter and grandson and they enter a cake shop where they have lunch. The Plaintiff remained seated for about 20 minutes to half an hour and is then seen to leave the shop and walk along the street.
97 In the second video the Plaintiff is shown returning to her car.. Subsequently the Plaintiff gets out of the car and is seen standing in a store at a counter where she appears to bend forward, she said to use the EFTPOS. She then walked from the store carrying some goods and gets back into the car. She agreed in evidence that she appeared to be moving freely.
98 In my view, the video surveillance is quite brief and therefore limited in scope. However, the Plaintiff does not appear to be limping and otherwise moves freely without any apparent discomfort. This presentation contrasted quite markedly with the Plaintiff’s presentation in Court where she agreed that she moved very slowly and stiffly with a pronounced limp.
Submissions of Defendant’s Counsel
99 Defendant’s Counsel submitted that the Plaintiff demonstrates mild degenerative change consistent with her age. She sustained a soft tissue injury which has required no surgery or other treatment except medication.
100 Defendant’s Counsel focused upon the alleged paucity of evidence identifying an injury arising from any of the workplace incidents; the absence of any surgery, physical therapies or specialist treatment; and the failure of the Plaintiff to seek suitable employment or retraining. In particular, Counsel referred to the following:
a)
The Plaintiff has never been treated by an orthopaedic surgeon or sought to be so treated. She has had no treatment beyond medication; and she sees her general practitioner once a month for the purposes of obtaining prescriptions and obtaining WorkCare certificates;
b)
No supporting affidavit has been provided by any member of the family but most notably the daughter who stays at home and is said to perform all the housework;
c)
The radiological investigations and examinations of the Plaintiff do not provide any evidence of the nature or extent of the Plaintiff’s injury. In particular:
1)
The CT scan of the lumbosacral spine in August 2002, being within a month of the first workplace incident, is reported as No abnormality demonstrated. The Plaintiff returned to her normal work duties within a short time and did not have any further complaint in relation to that injury;
2)
The X Ray and CT of the Lumbosacral spine in March and April 2004 demonstrate mild degenerative changes only with no fractures stenosis or significant protrusions seen;
3)
The examinations of all specialists essentially found: moderate restriction of movements in all directions by pain; no signs of radiculopathy with all deep reflexes, sensation and power being normal; and no deformity or tenderness in the back. Mr O’Brien described the Plaintiff as moderately disabled … and Mr Kierce considered that the Plaintiff’s current condition is magnified by psychological factors and she has adopted the role of an invalid and she does have a capacity for employment.
101 In relation to restriction of social and domestic activities, the Plaintiff has never had a driver’s licence. The Court should be reluctant to accept her statement that she cannot attend football matches because she cannot sit in a car for any prolonged period. There need be no such restriction.
102 In relation to Economic Loss, Counsel referred to the business income credited to the Plaintiff from P&M Taylor. The Plaintiff conceded that she performed some administrative tasks for her husband’s business. Counsel submitted that the Plaintiff is capable of deriving at least 60% of her pre injury income, say at least $240 per week based upon a pre injury earning capacity of $400 per week and has not proven otherwise. Counsel referred in particular to the following circumstances:
a) The Plaintiff has failed to apply for any jobs or seek any employment subsequent to her departure from the Defendant and has not engaged in any rehabilitation or re-training; b) Mr Kierce found that she does have the capacity for employment, subject to appropriate restrictions; and c) The Plaintiff’s presentation in Court is to be contrasted with her appearance in the covert video surveillance which shows that she is capable of moving freely without apparent discomfort 103 Subject to further analysis below I accept that the above submissions made by Defendant’s Counsel are an accurate reflection of the evidence.
104 I also accept Defendant’s Counsel summation of the rule in O'Donnell v. Reichardt and Jones v. Dunkel. Where the Court might expect a witness to be called or affidavit material provided to support the Plaintiff’s application, then the inference which may be drawn from the failure to call such witness or provide such a supporting affidavit is that the evidence of those witnesses would not have helped the Plaintiff's cause. In such a circumstance, if there is contrary evidence provided on behalf of the Defendant, a Court may more readily accept such evidence. I will return to this point shortly.
Submissions of Plaintiff’s Counsel
105 Although the Plaintiff sought to rely upon a serious injury having arisen after each of the three workplace incidents, Counsel conceded, sensibly in my view, that it is less certain whether the incidents in July 2002 and July 2003 were materially contributing to her back condition as at March 2005. However, the serious injury in March 2004 is the aggravation of pre-existing lumbar spondylosis at three levels. Plaintiff’s Counsel made the following main points:
a)
Since she ceased employment in March 2005 up until the present time, there has been no recovery from her injury, and she has no current capacity for work in the sense of being able to earn income from personal exertion;
b)
The preponderance of evidence is, that the degenerative changes at those three levels are the cause of her pain and disability and they were aggravated by the fall in March 2004 and such aggravation is unresolved;
c)
There's a s.98C permanent impairment payment made with respect to that third injury, which although not determinative is a matter to be properly taken into account.[30] Furthermore, she remains in receipt of weekly payments of compensation well in excess of 104 weeks from which can be inferred that that there is some evidence of acceptance that she has no current work capacity;
d)
The Plaintiff’s earning capacity should not include business income derived from the conduct of her husband’s business which is attributed to the Plaintiff as part of a legitimate tax sharing arrangement between husband and wife;
e)
The Plaintiff’s capacity for answering the telephone, in her husband's business and banking the cheques from time to time cannot be taken of itself as reflecting a realistic capacity to perform that work over an extended period. The Plaintiff’s pre injury working hours were about 30 hours per week. She was willing to concede that she may be able to work 3 hours per day, which would still be only half her pre injury capacity;
f)
In relation to an MRI, Counsel pointed out that there is no evidence that an open MRI was available to her and the evidence otherwise is that she would be claustrophobic in whatever MRI was offered to her;
g)
The Plaintiff’s current medication: Panadeine Forte, Tramal and Tramadol is all for the back as her migraines ceased following her aneurysm in 2007; and
h)
Mr Raglan, Dr Wallan and her general practitioner Dr McAllan all assess the Plaintiff as having no work capacity.
[30] Per Justice Ashley in Ansett v. Taylor
106 I accept that there is some merit in each of the submissions made by Plaintiff’s Counsel. However, for the reasons outlined below, I am not persuaded that the Plaintiff has satisfied the test of serious injury.
Analysis of the Evidence and Findings
107 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence, including submissions of Counsel and the tendered documents and videos.
108 I have re examined carefully various authorities which potentially have a bearing on the correct approach to be taken in a case such as the present.[31]
[31] Humphries v Poljak [1992] 2 V.R. 129; Fleming v Hutchinson (1991) 66 A.L.J.R. 211; Ninkovic v Pajvancek [1991] 2 V.R. 427; Petkovski v Galletti [1994] 1 V.R. 436; Cropp v TAC 1998 3VLR 357
109 Cropp and other cases[32] have highlighted the care which a trial judge must take in weighing the total circumstances, including:
[32] Refer in particular Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 @ para 17 – per Ashley JA
• the age of the applicant; • the activities formerly performed which can no longer be performed; • the significance of those activities to the applicant’s enjoyment of life; • pre injury employment record; • previous efforts to return to pre injury employment; • current limitations on employment; •
specific difficulties encountered in day to day living because of the claimed symptoms;
•
specific strategies which the applicant has adopted for dealing with their difficulties or whether they claim an inability to do almost anything; and
•
whether medication is used in a measured manner rather than asserting a need for strong painkillers every day.
110 It is necessary to identify… … the pain and suffering consequence [which]…
is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, … fairly described as being more
than significant or marked, and as being at least very considerable. [33]:
[33] Humphries and Anor v Poljak [1992] 2 VR 129 Crockett and Southwell JJ @ 140
111 There are certain facts and circumstances about which I am satisfied on the preponderance of evidence, which I set out below. However, there are a number of other matters which in my view reflect adversely upon the credit of the Plaintiff or otherwise militate against a finding of serious injury.
Findings
112 In relation to the first workplace incident the Plaintiff could not recall having any trouble with her back in 2002 when she saw Mr Kierce in May 2004. Where she has given any details of such incident, she quickly returned to her normal work duties and has not complained to any doctors of any lasting consequences. Accordingly, in my view there is no credible evidence upon which a court can make a finding of serious injury consequent upon the first workplace incident.
113 In relation to the second workplace incident, the account of consequences flowing from such incident vary somewhat in the various medical reports. Again, there is no reference to any ongoing social, domestic or recreational consequences and Mr Kierce records that she returned to work full-time on normal duties in March 2004. While there are some medical opinions which refer to both second and third workplace incidents as aggravating her degenerative spine, in my view there is insufficient objective evidence or complaint by the Plaintiff as to relevant consequences flowing from such incident. Accordingly, in my view there is no credible evidence upon which a court can make a finding of serious injury consequent upon the second workplace incident.
114 The focus of the Plaintiff's application has been, quite sensibly, upon the third workplace incident.
115 I accept that the Radiological investigations reveal relatively mild degenerative changes with no other discrete pathology and no signs of neurological deficit, nerve root compromise or radiculopathy. There is consensus amongst the medical opinion that the second and third workplace incidents either aggravated her degenerative spondylosis or aggravated her lumbar disc lesion at L4/5. The critical question is whether such aggravation resolved and the current symptomatology merely reflects age-related degenerative spinal disease. In my experience cases such as the present one, which rely upon paragraph (c ) of the definition of injury, are most difficult to determine where there is no specific radiological finding or objective finding upon clinical examination, following the injurious event.
116 I accept that all reporting doctors agree that the Plaintiff is unfit for her pre- injury employment or any similar employment involving heavy lifting or repetitive or prolonged sitting, standing, bending or stooping. All doctors except Mr Kierce recommended that she is effectively incapacitated for any suitable employment by reason of her pain and physical limitations, limited education and training and employment opportunities in Hamilton.
117 However, in recognising the above degree of consensus in medical opinion, it is critical to note that except for Mr Kierce, all of the specialist opinions were based upon assessments made more than 2 years after the third workplace incident.[34] In these circumstances, I place particular weight on the assessments of Mr Kierce, the only orthopaedic specialist to examine the Plaintiff within two months of the third workplace incident. Following his first assessment in May 2004, Mr Kierce reached the definite impression that the Plaintiff had aggravated pre-existing disc degeneration in the July 2003 and March 2004 workplace incidents… but I believe the signs are that she has largely recovered from that injury now. At that stage Mr Kierce recommended an immediate gradual return to work. The Plaintiff in fact did not return to work until February 2005 when she lasted only a few weeks. In his second report of June 2005 Mr Kierce again repeated his opinion that the Plaintiff had recovered from the aggravation of her pre-existing disc degeneration at L4/5. He could also find no physical abnormality on examination to explain why the Plaintiff could not manage certain workplace duties and questioned her motivation to return to work. By July 2006 Mr Kierce concluded that her current condition was being magnified by psychological factors and her having adopted an invalid role. Mr Kierce still considered that she was physically capable of undertaking work with appropriate restrictions. In his final assessment in July 2008, Mr Kierce, again states that her injuries in July 2003 and March 2004 aggravated her pre-existing lumbar spondylosis, but for the first time suggests that the work component has not resolved. There is no other discussion or explanation as to this change of opinion. However, Mr Kierce still recommends that the Plaintiff does have a current work capacity subject to limitations of not lifting greater than 10 kg and not engaging in prolonged or frequent bending, lifting, standing or sitting.
[34] Brearley May 2006, June 2008 & March 2009; O’Brien May 2006, July 2008 & March 2009; Brownbill July 2006 & May 2008; Radley December 2006; and Wallin October 2008.
118 I am not satisfied on the balance of probabilities that the third workplace incident currently materially contributes to her current condition. In my view, the more timely assessment of Mr Kierce supports the likelihood that any aggravation of her pre-existing degenerative spondylosis resolved within a relatively short time and that other psychological factors and/or general reluctance to resume employment or seek other employment opportunities intervened.
119 However, if he Plaintiff does suffer a residual contribution from the aggravation of her pre-existing degenerative spine, as a result of the third workplace incident, I am not satisfied that the consequences satisfy the requisite standard of serious injury.
120 There are a number of pertinent observations which I make about the evidence which reflect adversely upon the credibility of the Plaintiff or the weight to be afforded to her evidence.
121 In my view it is significant that no member of the Plaintiff’s family has provided supporting affidavit material which would be peculiarly within their knowledge. Accordingly, I do draw the inference that any such material would not support or assist the Plaintiff’s application.
122 It has been difficult to assess the extent of domestic, social and recreational activities before and after the third workplace incident. The information contained in the Plaintiff's affidavits and her responses under cross- examination were mostly general and non-specific. I note her evidence that there has been a reduction in certain activities such as looking after her house, gardening, sewing, playing with her grandchildren and attending football matches. However, I am not satisfied that in isolation or in aggregate that any of these limitations, taking into account the age of the Plaintiff, constitute consequences which are more than significant or marked, and as
being at least very considerable… when judged by comparison with other
cases in the range of possible impairments to the lumbar spine.
123 In relation to the Plaintiff's medication, she admitted to suffering regular migraines for over 30 years which required up to 8 tablets of Panadeine Forte per day. It is curious that in neither of her affidavits and in none of the medical opinions is there any reference to her migraines having ceased following her cerebral aneurysm. This matter was only divulged by the Plaintiff in re- examination.
124 The video surveillance, as indicated above, was limited in its scope. However, in my view the Plaintiff is shown performing free and unrestricted movement which is not consistent with her claimed level of chronic pain and restricted mobility.
125 Accordingly, while the Plaintiff currently professes to be taking a relatively high dose of medication for pain relief each day, this is not supported by any particular findings upon clinical examination or radiological investigations; is not consistent with the albeit brief video surveillance; and I question the Plaintiff's last-minute disclaimer to continuing migraines.
126 In relation to the Plaintiff’s current work capacity, I note the following:
a) there is no record in the Plaintiff’s tendered income tax returns to indicate any income derived by way of wages between 1999 and 2002, when she commenced with the Defendant; and b) for the financial years between 1999 and 2002 inclusive the Plaintiff derived business income which she admitted related to her husband's business, and is also attributed with having incurred expenses in that business. 127 While I accept that the Plaintiff and her husband may have engaged in a degree of legitimate income sharing in relation to the husband's business, in my view the Plaintiff was evasive under cross-examination as to her involvement in her husband's business, although eventually conceding that she did perform limited administrative duties. I am reinforced in this opinion having regard to the fact that the income tax returns do not indicate that the Plaintiff was deriving income from any other source while receiving business income until 2002 when her gross business income was half of the previous financial year and she commenced working for the Defendant in March 2002.
128 Prior to March 2004 the Plaintiff’s weekly working hours ranged between 25 and 27.5 .35 Accordingly, even using a 30 hour week and her pre March 2004 earning rate as a baseline, she would only have to work in the order of 18 hours per week or between 3 to 4 hours per week day to satisfy the 60% threshold. I
129 I note that the most recent report of the Plaintiff's general practitioner dated 18 April 2008, which principally deals with her aneurysm, notes that the Plaintiff's back is relatively stable and although pain is exacerbated by certain physical activity such as bending, her pain levels were normally manageable.
130 In my view having regard to the significant onus placed upon applicants to establish economic loss, I am not satisfied that the Plaintiff has satisfied or even attempted to satisfy the pre-requisites set out in paragraph 138AB938)(g) such that a Court cannot be satisfied as to loss of earning capacity under paragraphs (e) and (f) as a prerequisite to establishing serious injury under paragraphs (b) and (c).
Summary
131 I am of course required to make an assessment of the Plaintiff’s physical injury and consequent impairment to which her employment is a significant contributing factor [in the case of the first and second workplace incidents] and a contributing factor in the case of the third workplace incident, as at the time of hearing the application. Having regard to the total circumstances as I have found and outlined above:
a) I am not satisfied that the first or second workplace incidents currently contribute in any way to the Plaintiff’s current impairment of the lumbar spine or any consequences arising from such impairment; b) While I accept that the third workplace incident aggravated the Plaintiff’s pre-existing spondylosis or aggravated her pre-existing lumbar disc lesion, I am satisfied that such aggravation has more likely resolved, having regard particularly to the opinions of Mr Kierce and the Plaintiff’s diagnostic and clinical presentation; and c) I am satisfied that the Plaintiff’s current impairment of her lumbar spine and consequent pain and restricted mobility is most likely entirely age- related spinal degeneration; 132 However, if the Plaintiff does currently suffer a compensable injury as a consequence of the third workplace incident, I am not persuaded that the Plaintiff has proven an impairment and consequences which satisfies the requisite test of serious injury. In particular, I have had regard to the absence of any specialist treatment, surgery or other physical therapies and the issues of credit raised in the context of the Plaintiff's cross-examination, covert video
DCB 79
surveillance and requirement for pain relief. Furthermore, I am not satisfied that the Plaintiff has proven domestic social or recreational restrictions which can be reasonably described as significant when compared to her pre- workplace incident activities.
133 I am not satisfied that the Plaintiff has proven an incapacity for suitable employment. In particular I am not satisfied that the Plaintiff has demonstrated any reasonable basis for failing to pursue employment opportunities and/or vocational retraining. In my view the vocational assessments have not addressed either at all or adequately the range of potential employment consistent with the kinds of restrictions recommended by Mr Kierce.
134 While I accept that the Plaintiff’s experience of pain and physical limitations cause her some distress and frustration, I am not satisfied that the severity of claimed pain and restricted mobility is consistent with clinical examinations and in combination, the consequences of the impairment to her lower back are not in my view to be fairly described as being more than significant or
marked, and as being at least very considerable… when judged by
comparison with other cases in the range of possible impairments …to the
same body function.Conclusion
135 Any compensable injury by way of aggravation to her pre-existing lumbar condition has most likely resolved. However, even if the Plaintiff suffers a contribution to the current impairment of her lower lumbar back arising out of, or in the course of, or due to the nature of, employment with the Defendant on 18 March 2004, I am not satisfied on the balance of probabilities that the consequences are serious within the meaning of the Act either in terms of pain and suffering or economic loss.
Orders
136 The Plaintiff’s application for leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence proceedings for the recovery of damages for pain and suffering and economic loss in respect of workplace incidents on 29 July 2002; 22 July 2003 and/or 18 March 2004 relying upon paragraph (a) of the definition of serious injury, is refused.
137 The proceeding be dismissed.
138 The following cost orders were made after hearing the parties:
1. The Plaintiff pay the Defendant’s costs, including Reserve costs, on County Court Scale D to be taxed in default of agreement;
2. Certify for:
a) one refresher; circuit fee at scale and one circuit refresher; and
b) the reasonable costs of the preparation, filing and service of court books, the first copy at scale and each subsequent necessary copy at the commercial rate to be fixed by the taxing registrar.
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3
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