Trakilovic v Catalent Australia Pty Ltd
[2012] VCC 1792
•29 November 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03598
| GORDANA TRAKILOVIC | Plaintiff |
| v | |
| CATALENT AUSTRALIA PTY LTD | First Defendant |
| and | |
| XCHANGING WORKERS COMPENSATION | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 November 2012 | |
DATE OF JUDGMENT: | 29 November 2012 (Revised) | |
CASE MAY BE CITED AS: | Trakilovic v Catalent Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1792 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the back – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with Mr N Dunstan | Clark Toop & Taylor |
| For the Defendants | Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant from 1999 until November 2007 (”the period of employment”), in particular in November 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(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 application is the spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. Dr Gassin attended for cross examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 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.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(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 “more than significant” or “marked” and as being “at least very considerable”.
10 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.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
14 Subsection (38)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
16 The plaintiff is presently aged fifty two, having been born in August 1960 in Bosnia.
17 Whilst the plaintiff was still in Bosnia, she completed an under graduate accounting course and worked for six years thereafter as a financial controller for a company, before coming to Australia the next year.
18 The plaintiff was cross examined about her work history in Serbia. After she completed the tertiary course, she worked as a financial analyst between 1986 and 1992, with duties involving financial analysis and preparation of a financial plan for the financial year, and also quarterly statements. She did not use a computer at that time.
19 The plaintiff’s tertiary qualifications were acknowledged in the Australian system but she had to go to university to upgrade them. She did a TAFE course for six months in 1994. She passed the English component but did not complete the business part as she did not understand its requirements.
20 In cross examination, the plaintiff explained that she used a dictionary to look up various words contained in her affidavit. She had seen her solicitor without wanting an interpreter. She was able to get by at work with her English.
21 The plaintiff is presently in receipt of a Disability Support Pension, having last worked in late 2007. She is married with three children.
22 The plaintiff arrived in Australia in 1993 and did not work until 1997, when she commenced employment with the first defendant’s predecessor.
23 As of 2007, the plaintiff was earning approximately $1,800 gross per fortnight and $1,400 net. She worked some overtime and shift work.
24 In her first affidavit, the plaintiff deposed that prior to the period of employment, she had had no problems with her back. She could not recall suffering back pain in the past other than on one occasion in about 2003 when she had some low back pain which did not last very long and, following which, she made a full and complete recovery.
25 In her second affidavit, the plaintiff recalled being involved in a minor motor vehicle accident in 1998 or 1999, after which she saw a doctor a few days later, primarily in respect of neck pain, and was referred for a CT scan as a precautionary matter.
26 The plaintiff cannot specifically recall suffering from back pain at that time, but it was quite possible she did. If she had any neck or back pain then, it was minor. Following that, she was asymptomatic and unrestricted until suffering injury working with the first defendant, save for the occasion in 2003.
27 During the course of her work, the plaintiff performed heavy and difficult work involving pushing and manoeuvring, in particular, heavy trolleys containing about one hundred and thirty kilograms of material. She was also required to engage in repetitive heavy lifting.
28 In the course of both activities in the finishing and packing areas, the plaintiff developed back pain, which increased during October 2007.
29 The plaintiff attended her general practitioner, Dr Bogetic, on 1 November 2007 and was prescribed medication. Dr Bogetic also referred her to a neurosurgeon, who arranged an MRI scan.
30 Dr Bogetic initially prescribed Panadeine Forte and Tramadol and later replaced those with Panamax and Panadeine, which the plaintiff took on a regular basis. Dr Bogetic also suggested regular exercises, walking and physiotherapy.
31 Apart from her general practitioner and neurosurgeon, the plaintiff was referred to a spinal clinic where she underwent medial branch blocks to several levels of her lumbar spine, as well as a lumbar radio-frequency neurotomy in 2009.
32 In cross examination, the plaintiff explained that after the 2009 procedures, she felt better for maybe a few days and then the pain came back. It was better than before, maybe reduced to two, or maybe one, and then disappeared and then came back. Before it was six to seven out of ten.
33 Following the incident, the plaintiff had back pain and right leg pain, which continued despite treatment, and also pain in her buttock and thigh with some intermittent numbness and pins and needles into her right foot.
34 The plaintiff had a little time off work. She then returned to work in pain, with the assistance of painkilling medications. She had to work in the packing department where she was required to lift a component called a hopper which weighed between ten and fifteen kilograms. In doing so, she suffered increasing back pain.
35 The plaintiff attempted to continue to work and the next day was given light duties, but was not able to continue working because of the severity of her back pain. She has been unable to work since early November 2009.
36 As of her first affidavit sworn in June 2010, despite the treatment described, together with Pilates and three radio-frequency neurotomies, which required hospitalisation as day procedures, the plaintiff’s symptoms continued with constant low back pain, worse with sitting or standing for lengthy periods, or activity. She still required painkilling medication for relief.
37 Sometimes the plaintiff’s back pain was severe. She also continued to suffer from right leg pain from the buttocks to the heel, and sometimes into her big toe and the sole of her foot. That pain fluctuated and was increased by sitting for long periods.
38 The plaintiff was then limited in walking, bending, twisting and lifting, and social activities were reduced because of her pain.
39 The plaintiff was also limited in housework, especially vacuuming and cleaning requiring any lengthy bending. She had difficulty sitting for prolonged periods.
40 She deposed, at that stage, she was able to read and write English, but was not very good with computers, at which she was self taught. She thought then, at best, she may be fit for some part-time work if it did not involve placing stress upon her back.
41 At present, the plaintiff continues with treatment, taking Panadol Osteo three times a day upon prescription by her general practitioner, plus herbal medication to help her sleep. She takes Panadol Osteo in the morning, midday and at night. Although formal physiotherapy has ceased, she continues to perform regular exercises at home pursuant to her physiotherapist’s instructions.
42 The plaintiff was cross-examined about the histories noted by examiners of her intake of Panadol Osteo. She could not remember taking different dosages and could not remember taking no tablets at all.
43 This medication causes constipation, however, it gives the plaintiff relief, but the pain comes back. Sometimes, when the plaintiff is active, the medication does not have an impact on pain. It does not relieve her leg or numbness.
44 The plaintiff agreed that before Panadol Osteo was prescribed, she was taking stronger painkillers, which had more of an impact, but they made her feel tired and she got a reaction in her head and she told the doctor she could not take them.
45 For three minutes every morning, the plaintiff does exercises at home taught to her by the physiotherapist. She did some swimming for exercise but she was not a good swimmer and she had pain in her leg and back while swimming, so she stopped doing it. She also did not like being cold in the colder weather.
46 The plaintiff could not say for how long she obtained relief from physiotherapy. She agreed it reduced pain. Pilates was suggested to her and she moved from McKinnon to Glen Eira Physiotherapy to do Pilates weekly. However, after doing the routine, she felt a bit dizzy and felt pain in her right leg and numbness. After three months of Pilates, the plaintiff had to stop because she did not feel good.
47 The plaintiff agreed that pain management given to her by Mr Field helped her in the therapies given at his rooms. His techniques helped but did not solve her problem, so she stopped treatment. She had not spoken to the general practitioner about a further referral to a psychologist.
48 The plaintiff’s symptoms continue. She suffers from chronic low back pain, much worse with prolonged sitting and worse with walking long distances or lying down.
49 In cross examination, the plaintiff could not remember telling Mr Drnda in early 2008 that there had been a significant improvement in her condition. She told him she was a little bit better. She agreed that her improvements had only been gradual or slight.
50 When the pain is aggravated by prolonged walking, sitting or lying down, the plaintiff’s pain is severe. She also has right leg pain from the buttock to the thigh, below the knee to the calf, and sometimes sharp heel pain and numbness and pins and needles in the foot.
51 The plaintiff suffers those leg symptoms on a regular basis, but not as severe as the back pain. The symptoms are variable.
52 In re-examination, the plaintiff confirmed the fluctuating nature of her pain. When it is bad, she is very tired and she has to take tablets and go to bed. That happens weekly. It was very hard to tell.
53 The plaintiff has particular difficulty walking uphill because of leg pain and sometimes she has pain in her left heel.
54 In cross examination, the plaintiff explained that the longer she walks, the more she feels pain. She does not really go walking daily, although she does for exercise, depending on the weather. She feels pain sometimes after ten or twenty minutes, maybe up to half an hour.
55 The plaintiff could recall telling Mr Brearley in January this year that she could walk for up to an hour, but then said half an hour at a time, maybe twenty minutes to half an hour, she really could not tell. She told him when she went to his surgery that she was really bad.
56 On recent examination by Mr Brearley in August 2012, the plaintiff agreed that she told him her pain was made worse when walking for an hour or less. She was not good in distances. She walks for five minutes to the shop.
57 In cross examination, the plaintiff explained that her back problem was worse than the problem with her right leg.
58 The plaintiff’s back pain comes and goes but she has it every day. She agreed most of it was activity related. No position was particularly comfortable. She had to vary sitting, standing or lying down, and varying her posture was when her back was most comfortable.
59 The plaintiff has problems bending forwards and backwards but not to the side. She can bend to tie her shoelaces but feels the pain.
60 Before injuring her back, the plaintiff attended the theatre four to five times a year. Since then she only goes about once a year because of her difficulty sitting. She still attends the Serbian Film Festival.
61 In re-examination, the plaintiff confirmed her problem with going to the theatre was sitting in the chairs. She could not find any comfortable position and then had to move around, disturbing those around her.
62 The plaintiff travelled to Europe last year to visit her mother’s grave and see her elderly father. She had a problem sitting on the plane and had to move around. She also took tablets.
63 The plaintiff currently has leg symptoms when she is sitting and lying down and walking. She has pain in the buttocks, numbness in the foot, tight pain in the knee, sometimes weakness in the leg, pins and needles in the foot and sometimes in the toes. She gets these symptoms mostly together. The back and leg symptoms are nearly the same frequency but the back is worse.
64 The plaintiff’s condition had fluctuated since she stopped work. She noticed sometimes she had really bad abdominal pain and she did exercises for that and that gave a bit of help but the back and leg pain was still there. She has not had abdominal pain maybe for a year. The plaintiff agreed that her symptoms were worse when she stopped work.
Domestic Activities
65 The plaintiff continues to be restricted in the performance of many domestic activities, such as carrying and hanging out the washing or doing heavy shopping. She finds vacuuming difficult and painful, to the extent she rarely does it and has to rely on family members to help out with that and many other activities.
66 In cross examination, the plaintiff confirmed she does not do all the cleaning and has problems with bending to clean the shower. She cannot lift the washing basket to take it out to hang up the washing, and the children do it.
67 Whilst her children helped her with household tasks before she suffered injury, they now help her more.
68 The plaintiff avoids heavier tasks as she knows they cause pain. If she has to do it because no one else will, she experiences increased pain and has to lie down.
69 The plaintiff cooks, but there are some aspects of cooking which are difficult, especially bending and lifting items in the kitchen and taking things in and out of the oven.
70 The plaintiff prefers now to cook quick, light, easy meals with limited preparation. Before the injury, she used to have great satisfaction and joy cooking cakes and sweets extensively for her family and friends.
71 The plaintiff does not do a big grocery shop by herself. She simply buys small items or one meal at a time. She does not use a trolley and has not since the incident, because she knows pushing a trolley gave her pain.
72 In cross examination, the plaintiff agreed she could dress herself and do matters of personal hygiene.
73 The plaintiff is now limited in the distance she can drive. She has been unable to participate in social and recreational activities to the pre accident level because they often involve sitting for a long time, such as going to the movies, theatre, parties and many other social events which she used to attend frequently pre injury.
74 In cross examination, the plaintiff agreed she could drive locally. She has not really tried driving beyond Dandenong. She has problems in heavy traffic using the brake with her right leg when she starts to feel numbness. Also during a drive, she sometimes feels dizzy. The plaintiff did not think she could be a passenger for more than two hours.
75 The plaintiff has difficulty sleeping because of pain and she is woken quite regularly during the night because of it. The plaintiff’s sexual relationship with her husband has been significantly impeded because of difficulty lying on her back.
76 In cross examination, the plaintiff explained she did not sleep for more than four or five hours a night because of back and leg pain. She falls asleep at 10.30 pm to 11.30 pm and then wakes up later. She tries to sleep again using psychological techniques. Initially she took Endep and sleeping tablets but that medication made her too tired the following day. So now she takes herbal remedies, one to three times a week.
77 In re-examination, the plaintiff described how, when she goes back to sleep after waking in pain, her sleep is not as clear. The following day she is very, very tired.
Work
78 The plaintiff continues to remain unable to work in any physical or manual employment. She could not participate in the activities involved with such work.
79 The plaintiff does not like being unable to work due to her injuries. If she were able to do something, she would. Even if there was a suitable light job that was appropriate for her, she would not be able to work more than limited hours per week.
80 In cross examination, the plaintiff agreed she had not done any work since she left employment with the first defendant. She had contacted the first defendant to see if there were any light duties available on two occasions.
81 First, the plaintiff contacted the insurer and advised of her limitations and she was told they would see what they could do. Nothing then happened but then the first defendant contacted her or she contacted it, she could not remember.
82 The first defendant told the plaintiff, with the three hours’ limitation, it would see if there was something she could do, but they called her later, maybe a few days later, and told her that they did not have any jobs.
83 This contact occurred after the 2009 treatment. She spoke to the human resources manager, Andrew Keily, and he told her the first defendant did not have any suitable work. She took her WorkCover Certificate with her to that meeting with Mr Keily.
84 In re-examination, the plaintiff confirmed this contact. She explained that about sixty people work in two departments in the packing department. When asked how she felt about not being able to be offered work, she said she had worked there for ten years doing manual work and she did not have the skills for another job.
85 Apart from the two approaches to the first defendant, the plaintiff has not applied for any jobs or considered undertaking rehabilitation or retraining because she started to be tired and got a reaction in her head. She was not sure if she could drive. She had a problem, so she could not think about a job.
86 The plaintiff could not remember telling Mr Brearley in February 2008 that she felt that she could do light duties full time. She explained that even sitting in the Court all the time, she was trying to get in her best position and she had back pain and problems with numbness. She could not do three hours’ work in a factory. She would like to try three hours per day with limitations, but she was not sure she could even do three hours.
87 The plaintiff agreed that in her first affidavit she deposed she may be fit for some part time work. If she was certified fit, she was willing to try, whether she could do the work or not, but maybe she could not do any work at all.
88 When asked whether she told Mr Field she had a strong desire to find alternative work, the plaintiff said if she could do it she was willing to try, but she had a problem with sitting. She did not know if she could do a job involving varying her posture.
89 If the plaintiff had her weekly bad pain and she had to take tablets and lie down, she could not do a part time job three days, three hours a week.
90 The plaintiff was taken through the list of jobs set out in the vocational assessment.
91 The plaintiff said she was incapable of doing the jobs. There was no factory where there was only light packing. She could not do jobs requiring bending, sitting, lifting and standing. Packing required all those activities. She did not know what she could lift but it would only be very light items. She would have to bend and twist to do wrapping. She did not think she would be able to work at bench height.
92 The plaintiff could not have helped her husband in his legal firm, because she has not done any legal training and could not do legal work, even in her native Serbian.
93 The plaintiff uses a computer at home a little bit, Googling the Serbian news. She does not use email or Facebook. She could not tell if she could do office work if she had better computer skills, because she does not feel well. When sitting, she has to move all the time and then has to stand up and then she feels dizzy.
94 The plaintiff suffers from irritability, brought about by pain. Her memory and concentration are also impaired because of chronic pain. She sometimes leaves the gas on and has left her card at the bank on occasions.
95 In cross examination, the plaintiff confirmed she had concentration problems because of her pain and that would affect any retraining or further courses. There is no way she could return to study because of her concentration problems. Also sitting and driving would be a problem. If she did not feel good, how could she listen?
Wage Records
96 Wage records from the period ending 15 October 2007 set out an hourly rate of $22.23. In the period ending 27 September 2010, the hourly rate was $25.11.
Taxation Summary
Year Ended Employer Gross Income Other 30 June 2004 Cardinal Health Australia Pty Ltd $55,708 - 30 June 2005 Cardinal Health Australia Pty Ltd $51,232 - 30 June 2006 Cardinal Health Australia Pty Ltd $53,951 - 30 June 2007 Cardinal Health Australia Pty Ltd $48,540 - 30 June 2008 Catalent Australia Pty Ltd $24,593 - 30 June 2009 Catalent Australia Pty Ltd $48,167 - 30 June 2010 - $9,210 Centrelink 30 June 2011 Catalent Australia Pty Ltd $18,776 Superannuation lump sum $34,709
Centrelink $8,020
Treating Doctors
97 Dr Robert Gassin, musculoskeletal physician, first saw the plaintiff on referral from Dr Bogetic in March 2008.
98 The plaintiff then reported low back pain intermittently, mainly right sided, radiating from the upper buttock to the upper thigh and increased with activity.
99 On initial examination, the plaintiff was noted to have a good range of lumbar spine movement, and neurological examination and straight leg raising were normal. The plaintiff was tender to palpation in the low back centrally at L5-S1 over the right sacroiliac joint (“SIJ”) and in the right upper buttock.
100 Dr Gassin noted the recent MRI revealed desiccation of the L4-5 disc and multi-level facet arthropathy, but it was otherwise reported to be normal.
101 At that stage, Dr Gassin advised Dr Bogetic it was difficult to ascertain the source of the plaintiff’s pain. He noted it could be arising from any of the lumbosacral structures, including the right SIJ, the right low lumbar facet joints or a right lower lumbar disc. He then recommended physiotherapy, but also suggested diagnostic blocks may well be warranted.
102 On review in July 2008, the plaintiff stated her symptoms included mild, low back pain and pain and weakness down the right leg. Dr Gassin recommended continuing physiotherapy.
103 Following a review in July 2009, six weeks after, the plaintiff underwent a radio-frequency neurotomy. Dr Gassin noted those procedures resulted in a vast improvement in the plaintiff’s walking tolerance, but she still suffered right lower back pain on sitting and lying on the right side. She had also developed bilateral heel pain since the procedure.
104 Dr Gassin advised Dr Bogetic it was likely the plaintiff’s residual back pain was discogenic in origin and he thought the heel pain was most likely due to plantar fasciitis.
105 Dr Gassin suggested physiotherapy and that the plaintiff perseveres with Panadol and Panadeine. He did not believe further spinal injections were warranted at that stage.
106 On review in October 2009, the plaintiff reported persistent right heel and knee pain, but her low back pain had improved. She reported she had not returned to work as there were no light duties available.
107 There was a further attendance in January 2010, when the plaintiff reported persistent low back and right heel pain. Dr Gassin referred the plaintiff to Mr Hale, psychologist, as she was experiencing difficulty coping with issues related to chronic pain, but WorkCover denied liability for that treatment.
108 In April 2010, on review, the plaintiff’s condition was noted to be unchanged.
109 Dr Gassin again repeated it was difficult to ascertain the source of the plaintiff’s pain and thought it likely to be arising from the right, lower lumbar facet joints and from one or more low lumbar discs. Given that the facet joint pain had been treated, the residual pain, in his view, was predominantly discogenic in nature.
110 Dr Gassin thought the plaintiff should be encouraged to remain as active as possible and that she should also have psychological support.
111 In Dr Gassin’s view, the plaintiff was not fit to return to labouring type activities or manual duties and was unlikely to be so in the foreseeable future. He then thought physiotherapy and/or Pilates was unlikely to give any long term benefit, but might result in short term pain relief.
112 On review in May 2010, the plaintiff reported persistent pain in the right buttock and heel that was constant, and she had problems with prolonged sitting.
113 On review in August 2010, Dr Gassin noted the plaintiff’s condition was unchanged. She had discontinued Pilates and physiotherapy and had started seeing a psychologist, Mr Field, whose pain management strategies were helpful in relieving moderate pain in the short to moderate term.
114 In February 2011, the plaintiff’s condition remained essentially unchanged. She was no longer seeing the psychologist as she had found his input unhelpful in dealing with her pain.
115 Dr Gassin reported that as the plaintiff’s low back pain was most likely of discogenic origin, there was no specific treatment and encouraged her to remain as active as possible and avoid prolonged static postures and also suggested she remain on Panadol Osteo.
116 On review on 15 August 2011, the plaintiff’s back pain remained unchanged and Dr Gassin advised her that her condition had stabilised and suggested she persevere with medication and physiotherapy as required. He made no appointment to review her.
117 In Dr Gassin’s opinion, the plaintiff was not fit to return to labouring type activities or manual duties and was unlikely to be able to do so in the foreseeable future.
118 In cross-examination, Dr Gassin confirmed he had seen the plaintiff sixteen times between March 2008 and March 2012. He confirmed the clinical findings set out in his various reports. He agreed generally there was a good range of movement and no neurological abnormality.
119 Dr Gassin explained back movement was variable and there was no point measuring it all the time. He thought the MRI findings were very common in anyone over thirty five or forty, so he did not consider there to be a problem. However, they may well be the cause of pain, bearing in mind that things can look normal on an MRI scan and still cause pain, so an MRI scan is a guide as well as a diagnostic tool.
120 Dr Gassin confirmed the difficulties he had ascertaining the source of the plaintiff’s pain. That was the problem with most patients and that was why they went to him. There was one clue, in that she had reported pain on leaning forward, which suggested the involvement of a disc.
121 Dr Gassin initially suggested core strengthening exercises. He took a conservative approach, which gave the plaintiff a chance to improve without injection, but as the pain continued, he started with medial branch blocks which were a diagnostic tool to try and work out if the pain was coming from the facet joints.
122 At one stage, Dr Gassin changed the plaintiff’s medication from Temaze, which is addictive, to Triptyline, which is a non-addictive medication, with also some pain modulating properties.
123 The first time Dr Gassin saw the plaintiff, she complained of pain of five out of ten.
124 Whilst Dr Gassin thought it was a good idea for the plaintiff to return to work, and he encouraged her to do so, he did not get involved much in that program, which he left to her general practitioner.
125 Dr Gassin agreed that there was a vast improvement in the plaintiff’s walking tolerance following the mid 2009 procedure but he did not know if that was permanent. Dr Gassin thought, in a way, that result was consistent with some of the pain coming from her facet joint. He did not normally expect the branch blocks or neurotomy would have a permanent effect.
126 Dr Gassin explained the radio-frequency neurotomy involved destroying the nerves. The nerves tended to grow back within six to eighteen months. If there was improvement, it might have been as a result of that procedure, or it might have been spontaneous. That procedure was not repeated because the plaintiff did not gain enough relief.
127 Dr Gassin confirmed he referred the plaintiff to a psychologist to help her deal with her change in lifestyle and also to implement a non-medical pain management strategy.
128 On no examination did the plaintiff complain of being extremely tender to palpation or that any movement increased her pain. Her examinations were never suggestive of psychological issues being a big component of her pain disorder. She never over reacted on examination.
129 Dr Gassin confirmed he had prescribed Panadol because he was of the firm belief the best analgesic was the weakest one and had the least side effects. He prescribed slow-release medication to be taken three times a day. He agreed he advised the plaintiff to be as active as possible. He thought physiotherapy was expensive and was not often that helpful. It was better for the plaintiff to get up and do things to prevent her being entrenched in a chronic pain role. If she stopped activity, it would be harder for her to start going again.
130 This view certainly did not mean he suggested the plaintiff could do everything. Dr Gassin thought she should stop activity such as bending or lifting if it caused pain.
131 Dr Gassin was not sure whether treatment with Mr Field stopped of the plaintiff’s choice or WorkCover stopped paying. He also explained that pain does not really need treatment. Treatment is good at achieving some improvement but if there is none, people need to learn to self manage.
132 In terms of a return to work, Dr Gassin thought an initial lifting restriction would be three to five kilograms to see how she coped, and then leave the issue to her general practitioner. He thought if the pain had persisted for five years, it was going to persist for the foreseeable future. If the plaintiff returned to full pre injury duties which were quite physical, he thought she would have quite a lot of difficulty coping, but if she did light duties part time, he could not predict whether she could get back to full time.
133 From a medical point of view from the plaintiff’s level of pain, Dr Gassin had no issues with retraining but that did not include factors such as education and language skills. He could not say the plaintiff would be definitely precluded from ever reaching full time hours on light duties.
134 Dr Gassin agreed with Mr Simm’s view of the MRI scan, that the changes shown were mild and not predicative of pain.
135 Dr Gassin explained there were difficulties with the interpretation of what was a Chronic Pain Syndrome. He disagreed that prolonged pain meant a Chronic Pain Syndrome. He thought the plaintiff did not exhibit other signs psychologically of a pain that had a predominant psychological origin. He thought the underlying cause, being the injury at work, remained, and she continued to have pain. He thought there was somatic referred pain.
136 On re-examination, Dr Gassin confirmed the plaintiff’s history was of variable pain which was a common situation with most people with ongoing pain including discogenic pain. With that variation, she would have to have a very understanding employer and it made it very difficult for her to plan certain activities.
137 Dr Gassin agreed that it was a complaint, that people with pain have problems with concentration. He thought the plaintiff had always been very genuine about her problem and presentation and had always been very keen to return to work, which was always a big positive.
138 Mr Armin Drnda, consultant neurosurgeon, first saw the plaintiff on referral from Dr Bogetic in November 2007. At that stage, the plaintiff reported low back pain.
139 On examination, there was decreased lower back movement. The plaintiff preferred to stand and she was uncomfortable lying down, but comfortable on her side. Straight leg raising was negative bilaterally, reflexes were normal and there were no sensory changes.
140 Mr Drnda advised the plaintiff would require an MRI scan and probably would not need surgery but would need to change her work circumstances. He thought she must not be involved in bending and twisting or any heavy lifting or pushing.
141 Mr Drnda thought the plaintiff’s condition was definitely work related and caused by the repetitiveness at work. He thought she should manage with conservative management to get better, but her future depended on how much she restricted herself from bending and twisting.
142 Mr Drnda noted the 2007 MRI showed no neural compression.
143 Mr Drnda noted that the WorkCover insurer had sent the plaintiff to a doctor who stated she had arthritis in her spine that was the cause of her symptoms. He thought that was completely incorrect because the plaintiff did not have arthritis; she had arthropathy, which was a different condition caused by physical strain which prompted degenerative changes, and it was degeneration and inflammation.
144 Mr Drnda noted in January 2008 that, basically, the plaintiff had improved significantly since he last saw her, mentioning that some time ago she had had a flare up of back pain which again settled, and she had had one the day before when bending.
145 On examination, straight leg raising was negative and neurologically the plaintiff was intact.
146 Mr Drnda noted the MRI showed degenerative L4-5 disc without protrusion and that degeneration was relatively mild. The plaintiff had arthropathy on that segment caused by physical strain. Mr Drnda confirmed that the plaintiff did not have inflammation of the spine and that she had degeneration caused by strain.
147 Mr Drnda thought the plaintiff needed to exercise with fast walking and avoid bending and twisting at any cost, and also do some swimming and have a course of physiotherapy. Mr Drnda thought supervision for the plaintiff’s treatment should be done by a musculoskeletal physician and the plaintiff did not require surgery.
148 In a further report, Mr Drnda stated that he disagreed with the general surgeon, Mr Sinha’s view, that the plaintiff suffered from facet joint arthritis. Mr Drnda noted the MRI showed actually L4-5 disc degeneration and arthropathy at that level. In his view, the plaintiff’s condition was directly related to work and due to repetitive bending, twisting and occasional heavy lifting, and triggered when she was transferred to a department with heavier duties.
149 The plaintiff had physiotherapy treatment at McKinnon Sports Medicine, carried out by Ms Chang, on twenty occasions from May 2008 during that year.
150 In summary, Ms Chang noted the plaintiff’s symptoms had fluctuated since the beginning of the treatment. Overall, the plaintiff reported less numbness in her leg and pain in her back, and her main problem at the cessation of treatment was pain into her pubic symphysis.
151 Objectively, Ms Chang noted the plaintiff’s lumbar spine and SIJ were functioning better, but weakness in her core stability muscles was still a major concern. Ms Chang reported the current treatment was now improving the plaintiff’s abdominal and core muscle strength.
152 The plaintiff was referred to Glen Eira Physiotherapy and Pilates Centre from her treating physiotherapist, Ms Karen Chang, in November 2009.
153 In a report of April 2010, Ms Sheree Freedman, physiotherapist, noted on initial presentation, the plaintiff was consistently weak through her abdominal musculature. She progressed well with supervised Pilates, reporting a slight decrease in her symptoms of back pain and numbness in her thigh. Her symptoms still tended to fluctuate with pain in the right leg at times and her heel pain had remained unchanged.
154 Ms Freedman believed the plaintiff had a long way to go in continuing to strengthen her core muscles and progress to more functional based exercises which would assist her to return to pain free activities of daily living and work related tasks. She did not believe the plaintiff would return to work in her pre-accident capacity, but she most certainly should be able to work with altered duties or restricted hours. She thought that ultimately the plaintiff would get to the stage where she could manage with a home based exercise program.
155 The plaintiff was first seen by David Field, psychologist, in June 2010 on the referral of Dr Gassin. The plaintiff told Mr Field she had previously seen a psychologist as part of pain management until he returned to Canada.
156 Since the initial referral, Mr Field worked with the plaintiff roughly fortnightly on gaining pain management strategies, arousal reduction, maintaining physical rehabilitation, exploring the possibility of gainful employment and improving her interpersonal social life.
157 Mr Field concluded that the plaintiff presented with chronic low back and leg pain as a result of the work injuries. He noted her responses to psychometric questionnaires showed she scored in the moderate range for depressive symptoms and the extreme range for anxiety and pain experience. She also scored in the severe range for pain impact, indicating that those factors were having a negative consequence on her quality of life.
158 Mr Field thought the plaintiff met the criteria for Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Pain Disorder associated with a general medical condition.
159 As of his August 2011 report, Mr Field thought the plaintiff had no capacity to work in her previous job which involved manual labour and sitting for long periods. He noted that whilst the extent to which her pain restricted her capacity to work was difficult to predict, the plaintiff had expressed a strong desire to find alternative employment. Consequently, Mr Field stated he would be hopeful that the plaintiff’s capacity to work in alternative employment could be found, and he believed this would improve her overall wellbeing and quality of life.
Medico Legal Examinations
160 The plaintiff was first examined by Mr Kenneth Brearley, orthopaedic surgeon, in February 2008. She was subsequently seen in January 2009, June 2010, January 2012 and August 2012.
161 On initial examination, the plaintiff reported intermittent lower back pain and she was taking Panadeine some nights. She described injuring her back whilst working for the first defendant and also suffering low back pain in 2001, after which she made a complete recovery.
162 On examination, there was slight limitation of flexion of the back and straight leg raising was to eighty degrees bilaterally.
163 Mr Brearley noted the November 2007 MRI, which showed a degenerative disc at L4-5. He noted there was well marked facet joint arthropathy throughout most levels of the lumbar spine.
164 Mr Brearley then diagnosed aggravation of degenerative changes in the lower lumbar facet joints and an L4-5 disc injury comprising aggravation of the degenerative changes in that disc with no evidence of radiculopathy.
165 Mr Brearley then thought the plaintiff was fit to resume light work with restrictions, avoiding repeated bending and stooping and heavy lifting beyond three kilograms. He thought her treatment was appropriate and her condition would gradually improve. However, she would be liable to have further occurrences of back pain, as there was an established background of facet joint arthropathy and some degenerative disc disease.
166 On the second examination in January 2009, the plaintiff reported some slight improvement in her back condition, but she was still having significant problems with constant low back discomfort or pain, worsened by bending, stooping, lifting and prolonged static motions.
167 Mr Brearley noted that over the last year, there had probably been a slight improvement in the plaintiff’s condition, but she still remained significantly disabled. Findings on examination were as previously described.
168 Mr Brearley believed the plaintiff suffered an organic injury to the back comprising injury to the L4-5 intervertebral disc with consequent mechanical lumbar back pain and right leg pain. He thought the organic back injury was causing an incapacity for work and he was not aware of any non organic basis for her pain.
169 Mr Brearley then thought the plaintiff was not able to return to pre injury duties, for that work was heavy and repetitive, and she was not fit for any manual labour.
170 Mr Brearley thought the plaintiff was fit for some suitable light work where she could avoid heavy and repetitive lifting, repeated bending and stooping and long standing. He thought she should commence part time and then probably build up to full time light duties, but that would depend on her progress.
171 On review in June 2010, the plaintiff was still having considerable problems after the 2009 procedures and said there was always some discomfort or pain in her lower back.
172 On examination, there was only slight limitation of flexion, and examination findings were similar to previous occasions. Mr Brearley noted there had been further slight improvement in the plaintiff’s condition since she had had the facet joint blocks and radio-frequency denervation.
173 Mr Brearley commented that the plaintiff’s pain appeared to be originating from the facet joints and also the degenerative L4-5 intervertebral disc.
174 Mr Brearley then thought the plaintiff was fit to return to part time work, as Dr Bogetic had stated. In his view, the plaintiff needed to be on light duties and could only work three hours, five days a week. She would need to avoid all bending, stooping and lifting beyond three kilograms. She would also need to be able to sit or stand as she wished and avoid repeated twisting, turning and long standing.
175 The plaintiff advised Mr Brearley she had been told by the first defendant that no such light duties were available.
176 While theoretically Mr Brearley thought the plaintiff could do some part time light work, when her age of forty nine was taken into account, together with language difficulties and her experience only in manual labour, he thought there was no realistic possibility any employer would offer her paid employment.
177 On examination in January 2012, the plaintiff stated there had been some improvement in the condition of her back over the past year, but she was still having problems. She was able to walk for an hour or so. The plaintiff simply took pain medication from time to time, particularly Panadol Osteo, which she took on average twice a week.
178 There was slight limitation of flexion to sixty degrees and only slight limitation of right lateral flexion. The plaintiff’s straight leg raising was to seventy degrees on the left and fifty degrees on the right.
179 Mr Brearley noted there had been some improvement in the plaintiff’s lower back condition but she continued to have intermittent pain and also some right leg pain occasionally.
180 Mr Brearley thought, clearly, the plaintiff was not fit to return to her pre injury or any other manual type work. He noted, however, she was an intelligent person who could be retrained, possibly with concentrated English classes, and should be able to resume some form of work, such as straightforward reception or administration.
181 Mr Brearley considered any work the plaintiff did needed to be within the limits of avoiding lifting beyond five kilograms intermittently, or two continuously. The plaintiff would also need to avoid repeated bending and stooping and prolonged forward bending and be able to vary her posture.
182 Mr Brearley concluded the reality, however, was that given those restrictions, her age, her language difficulties, her ongoing disability and her history of a WorkCover claim, there was no likelihood any employer would be prepared to give the plaintiff work of any description. In other words, she would have no current work capacity.
183 On final examination in August 2012, the plaintiff said there had been little improvement in her back condition and she was continuing to have significant problems. She reported her pain was made worse by walking for an hour or less and particularly after bending, stooping and attempted lifting. She was then taking Panadol Osteo a few times a week.
184 On examination, there was again limited flexion to sixty degrees and some limitation of right and left lateral flexion. The findings in terms of the legs were as previously reported.
185 Mr Brearley noted Mr Schofield had recently arranged straight x-rays which showed some degenerative changes and some narrowing of the posterior margin of L4-5 and minimal retrolisthesis of L4 on L5.
186 Mr Brearley noted the x‑rays of the lumbosacral spine in December 1998 showed no facet degeneration or pars defect.
187 Mr Brearley concluded the plaintiff’s ongoing symptoms appeared to be the result of intradiscal injury to L5 intervertebral disc and there probably had been contribution to her pain from the degeneration of the facet joints in the lower lumbar spine. He thought the plaintiff’s work as a machine operator was a significant contributing factor to her current injuries.
188 Mr Brearley thought there was no likelihood of any improvement, that the plaintiff’s condition had stabilised and her symptoms would continue virtually unchanged for the foreseeable future.
189 The plaintiff was examined by Mr David Brownbill, consultant neurosurgeon, in August 2008, May 2010, December 2011 and August 2012.
190 On the first examination, the plaintiff reported intermittent low back pain, present most days, and also right leg pain involving the buttock and the outside of the thigh which occurred intermittently. Numbness in the right heel and top of the foot fluctuated, as did pins and needles of the right heel.
191 Examination on the first date showed some slight restriction of thoracolumbar spinal flexion and there was no objective neurological abnormality.
192 Mr Brownbill noted radiological investigations had demonstrated single level intervertebral disc derangement with bulging and some facet joint degenerative changes. On that information, he thought the plaintiff suffered lumbar intervertebral disc derangement, possibly superimposed on previous asymptomatic degenerative change. He then anticipated some ongoing pain would continue indefinitely.
193 On re-examination in May 2010, the plaintiff complained of low back pain present all the time, fluctuating in severity but not severe. Right buttock pain was present most of the time, fluctuating in severity and was worse with sitting. Right knee, back and bottom of the right heel fluctuated and there was pain in the back and bottom of the left heel which also fluctuated.
194 Examination at that stage showed slight restriction of thoracolumbar spinal movements and there was no objective neurological abnormality or no signs of radiculopathy.
195 Mr Brownbill confirmed that on the information provided, the plaintiff had suffered continuing intermittent back, right buttock and bilateral heel pain in a fluctuating manner since previously interviewed. He thought that the described heel pain represented, in major part, nerve root irritation in the lumbar spine. He confirmed his earlier diagnosis and regarded the plaintiff’s condition had stabilised.
196 Mr Brownbill thought the plaintiff should in future avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged sitting or standing.
197 Mr Brownbill confirmed he thought Dr Gassin’s view that the residual back problems were discogenic in origin was correct. He thought the plaintiff should avoid lifting activities involving heavy lifting, full spinal mobility, repeated bending or prolonged sitting or standing, and did not think she would be able to return to her described employment activities or undertake labouring type duties or manual duties in general.
198 On re-examination in December 2011, the plaintiff reported the pain had reduced a little since the last interview but still restricted all activities. The right leg was the most painful. Low back pain comes and goes and had improved a little. It still restricted all activities and would stop the plaintiff doing any work. There was intermittent right foot and heel and toe pins and needles.
199 Examination on that date showed restriction of thoracolumbar spinal movements and absence of the ankle reflexes, but no other neurological abnormality.
200 Mr Brownbill noted that the plaintiff’s radiological investigations had demonstrated multi-level lumbar spine facet joint arthropathy and single level L4 intervertebral disc derangement.
201 Mr Brownbill confirmed the plaintiff, in the future, would not be able to return to her described pre injury employment or to any manual employment.
202 On final examination in August 2012, the plaintiff said there had been no improvement since the last time she had seen Mr Brownbill. Her back pain had not changed and there was still right leg pain and her right leg felt generally weak.
203 In summary, examination showed restriction of thoracolumbar spinal movement and there was ongoing absence of the ankle reflexes but no other objective abnormality. Mr Brownbill thought the plaintiff’s condition had stabilised and was unchanged from the previous examination.
204 Mr Brownbill confirmed his earlier diagnosis and indicated that the plaintiff should avoid heavy lifting, full spinal mobility, repeated bending or prolonged standing or sitting. He thought realistically the plaintiff would not be able to perform suitable employment in any ongoing or reliable fashion, noting her age, her work experience had always been heavy physical activity and her described ongoing activity related back and leg pain.
205 The plaintiff was examined by Dr Middleton, occupational health and rehabilitation consultant, on 5 December 2011.
206 The plaintiff told him at that time her main pain was in the right side of her lower back, described as a sore, burning pain into the right buttock extending into the lateral aspect of the right thigh, down the back of the knee with burning in the right calf, and heel pain with pins and needles extending along the plantar aspect of the foot to the great toe.
207 Dr Middleton noted the plaintiff stood the majority of the time throughout the consultation. He felt she answered questions honestly and to the best of her ability.
208 On examination, the main tenderness was in the right paravertebral region adjacent to L4 and L5. Around that area, there was less tenderness in the vertebral region extending into the SIJ area. Straight leg raising was fifty degrees on the right and seventy five on the left. Clinical assessment of sensation appeared normal. However, Dr Middleton had problems assessing power.
209 Flexion was to sixty degrees (normal ninety), extension and right lateral flexion was to fifteen degrees (normal thirty). Left lateral flexion was to twenty degrees (normal thirty) and right rotation was to fifteen degrees (normal thirty).
210 Dr Middleton thought the plaintiff suffered a serious lower lumbar spine injury resulting in L4-5 disc protrusion and derangement of L5-S1 as an aggravation of pre existing, underlying, asymptomatic degenerative lumbar spine disease. As a result of this, the injury had also aggravated the associated facet joints, particularly on the right and, to a lesser extent, the SIJ.
211 Dr Middleton thought the plaintiff also suffered with a Chronic Adjustment Disorder with both Anxiety and Depression, and the combination of both the physical and psychological condition had the sequelae of a Chronic Regional Pain Syndrome. He considered that the physical injury sustained by the plaintiff resulted in the impairment flowing onto the psychological and pain condition.
212 Noting the failure of the WorkCover agent to address any of the occupational rehabilitation requirements to support the plaintiff in upgrading her skills to cover loss of physical capacity, currently he did not consider the plaintiff had any realistic employment options, noting her age and, in particular, her limited English skills, transferable industrial skills and continued impairment from the physical injury that was reliant upon a reasonable and reliable physical capacity.
213 Dr Middleton considered the plaintiff had no realistic possibility of any employer offering her paid employment, and he agreed with Mr Radley’s view of 26 June 2010, that the plaintiff had no current work capacity.
214 Dr Middleton re-examined the plaintiff on 3 September 2012.
215 The plaintiff then said that her main pain remained on the right side of the lower lumbar spine with the burning component extending into the right buttock. There were pins and needles on the right thigh with a burning pain in the right calf, and pins and needles and numbness on the sole of her right foot.
216 On examination, the plaintiff sat awkwardly, having advised the drive to the appointment had aggravated her back. Dr Middleton gained the impression that, if anything, the plaintiff had deteriorated since the last examination. Again, he believed she behaved in a straightforward and honest manner, requiring changing posture on a regular basis.
217 The plaintiff was still tender in the SIJ with some discomfort in the lower lumbar spine. There was an apparent dulling of the joint and plantar responses. Against this, straight leg raising was thirty five degrees on the right and seventy on the left.
218 There was a further reduced range of movement of the lumbosacral spine compared to the previous attendance.
219 Dr Middleton noted the 1998 x-ray and the CT scan of July 2003, and the multi-positional MRI of the lumbosacral spine of September 2012.
220 In relation to the most recent investigation, Dr Middleton noted that the clinical notes indicated pain on sitting and walking. The technique was flexion and extension, standing neutral flexion and extension. The findings were alignment of the lumbar spine appeared satisfactory. Essentially, the conclusion was that there was no significant canal or foraminal narrowing at any level and no significant features of note.
221 Again, Dr Middleton concluded the plaintiff suffered a serious injury to the lower lumbar spine in November 2007, resulting in an L4-5 disc protrusion and L5-S1 disc derangement aggravating a pre-existing, underlying, asymptomatic, degenerative lumbar disc disease. He thought it clear that the sequelae of the that structural damage to the lumbar spine causing right sciatica had resulted in recovery to a point where both those two lumbar levels were not structurally deranged and the right L5 and S1 nerve roots irritated continuing to cause neuropathic pain.
222 In Dr Middleton’s view, the aggravation to both the facet joints and the SIJ had settled, but the plaintiff continued to suffer with chronic pain with restricted physical capacity. He considered the sequelae were a Chronic Adjustment Disorder with Anxiety and Depression and a Chronic Regional Pain Syndrome.
223 Dr Middleton confirmed the level of manual handling at work, including the acute injury on 8 November 2007, had been a significant contributing factor to the plaintiff’s ongoing injuries and her sequelae.
224 Addressing purely the physical injury, totalling excluding non organic or emotional conditions, and noting there had been no attempt to provide rehabilitation and the qualifications the plaintiff achieved overseas are not recognised in Australia and therefore not practised, noting English was her second language and having not worked for nearly five years, Dr Middleton thought the physical injury prevented the plaintiff undertaking suitable employment. He thought she had no realistic physical capacity to achieve suitable employment.
225 Dr Middleton believed the plaintiff no longer had a reliable physical capacity, that she had the need to change posture frequently and obtained relief from her pain only when lying on her side. He thought the plaintiff’s residual physical capacity did not support the attainment of suitable employment, noting a lack of skills for non manual work.
226 In Dr Middleton’s view, in a very flexible employment situation, the plaintiff could attend work two to four hours per day, two to four non-consecutive days per week, with a maximum of twelve hours in any week, undertaking non manual duties for which, in his opinion, she was not vocationally skilled.
227 Dr Middleton thought the prognosis was poor, as the conservative treatment had failed and surgery was not indicated.
228 Mr Stanley Schofield, orthopaedic surgeon, examined the plaintiff in February 2012.
229 The plaintiff then complained of low back pain, mainly felt on the right side of the midline near the right buttock and radiating down to the outer right leg to the knee, foot and toes, with some numbness.
230 On examination, Mr Schofield noted the plaintiff appeared a pleasant and honest witness. She had a lordotic lumbar spine which was tender in the lower lumbar region. Her range of spinal flexion was limited to seventy degrees, extension was to thirty degrees and other movements were normal.
231 Straight leg raising was to fifty degrees on the right, reproducing pain, and seventy degrees on the left. There was normal power, reflexes and sensation.
232 Mr Schofield noted the MRI was four years old. Therefore, he arranged for the plaintiff to have x-rays, including erect functional views.
233 Having viewed the films, Mr Schofield noted the alignment was normal in the supine position, apart from minimal narrowing at the posterior margin at L4-5. Further, the erect lateral views in flexion and extension noted that there was a further narrowing at the posterior margin at L4-5, particularly in the erect extension view, which was also noted to show minimal retrolisthesis of L4 on L5.
234 Mr Schofield noted there was also posterior margin narrowing at the lumbosacral level of a similar degree to L4-5 in the erect position. In the erect flexion view, this was limited by muscle spasm and did not correct the retrolisthesis. The disc spaces above L4-5 were normal.
235 On the available evidence, Mr Schofield thought the plaintiff had suffered significant stresses on the lower lumbar discs as a result of repetitive work, especially in October/November 2007. He thought the initial injury to the posterior annulus was likely to have occurred at that time, followed by an acute aggravation of that weakness in the posterior annulus, causing the right sciatica in November 2007.
236 Mr Schofield thought the plaintiff’s clinical signs were consistent with a lumbar disc prolapse. He noted x-rays with erect views showed evidence of chronic degenerative change and some instability, particularly affecting L4-5, and L5‑S1 to a lesser degree. Mr Schofield considered this instability was due to significant softening of the annulus and rupture of the annular fibres at the wall of the disc, particularly at the posterior margin.
237 Mr Schofield advised that ideally the plaintiff should have an upright MRI scan where additional weight bearing views are more likely to show the soft tissue changes, particularly affecting the two lower lumbar discs whilst under load.
238 Mr Schofield concluded the plaintiff had suffered injury, including aggravation of degenerative change at the lower two lumbar levels, resulting in instability and a probable initial prolapse causing that aggravation whilst working in November 2007. He thought the plaintiff had no capacity to return to her previous occupation or similar type duties.
239 On re-examination in September 2012, Mr Schofield had available the report of the upright MRI scan in which alignment of the lumbar spine was reported as satisfactory. L1-2, L2-3 and L3-4 were all reported as being normal. L4-5 reported slight degenerative change but without canal or foraminal narrowing. The lumbosacral disc levels reported as normal. Mr Schofield noted his own personal examination of the films did not agree the L4-5 was normal.
240 The plaintiff told him her symptoms continued and had not improved since the last examination.
241 On examination, the plaintiff was tender in the low lumbar region and flexion was about sixty per cent of normal. Straight leg raising on the right was restricted to fifty degrees, reproducing right leg pain, and eighty degrees on the left. On that occasion, Mr Schofield was unable to obtain a right ankle jerk, but other reflexes were normal, as was sensation and power in the lower limbs.
242 On the day of examination, Mr Schofield arranged for the plaintiff to have further x-rays of the lumbar spine in the erect position in flexion and extension. He noted an uptilt AP view was also obtained which did not show any evidence of bony abnormality or tilt of the spine.
243 Mr Schofield concluded his current examination continued to show evidence of persisting organic back pain with restricted straight leg raising and, on that occasion, absence of a right ankle jerk despite repeated testing.
244 Mr Schofield thought the plaintiff’s clinical signs were consistent with those of his previous examination. Radiological changes again showed the major area of pathology arose from the lower two lumbar discs with the greater degree of degeneration affecting L4-5 on the upright x-rays. Mr Schofield noted that, unfortunately, the upright MRI scan did not perform the positioning of the plaintiff as he had requested with a full range of possible flexion, whereas the plaintiff told him she was asked to bend forward and lean on a bar which maintained extension of the spine and flexion of the hips.
245 Mr Schofield noted information provided to him demonstrated evidence of psychological overlay, but that in no way reduced his evidence of organic clinical pathology with radiological support. It was his belief that the plaintiff’s physical injury prevented her from undertaking any suitable employment when regard was given to her medical condition, qualifications, English language skills and time out of the workforce.
246 Mr Schofield thought that if the plaintiff did engage in any other suitable employment, she would need restrictions in the amount of sitting, bending, standing or lifting and it would be likely to be on a part time basis initially.
247 Mr Schofield considered the prognosis remained guarded. He believed conservative treatment should exclude the type of extension exercise which the plaintiff had been given in the past. He thought in the long term, it was more likely than not, on a physical basis, that the plaintiff would be in need of surgery.
248 Mr John McTeigue, surgeon, examined the plaintiff on behalf of Xchanging in May 2010.
249 The plaintiff told him of constant lower back pain radiating to the right leg and right great toe. She also complained of pain in the heels of both feet.
250 On examination of the thoracolumbar spine, there was no clinical deformity and the plaintiff indicated the lower lumbar region as the main site of symptoms.
251 The plaintiff complained of slight tenderness on palpation at L4-5. Flexion was to seventy degrees and extension was to thirty degrees. Lateral flexion to the right and left was to thirty degrees and rotation to the right and left was to thirty degrees. Straight leg raising to the right was to seventy degrees, causing a complaint of pain, and to the left was to eighty five degrees. Reflexes were normal, as was sensation.
252 Mr McTeigue noted the 2007 MRI. He thought the plaintiff’s symptoms were consistent with irritation of predominantly the fifth lumbar nerve root on the right side.
253 Mr McTeigue considered it likely the plaintiff suffered aggravation of pre-existing degenerative change in the intervertebral disc at L4-5 and noted the MRI in 2007 had failed to demonstrate an anatomical cause for the nerve root irritation. There were no objective clinical signs of radiculopathy. He thought the condition had stabilised.
254 Dr Michael Epstein, psychiatrist, examined the plaintiff in September 2012.
255 The plaintiff then reported low back pain going into both buttocks, more on the right than the left, and down both legs, especially the right, to the sole of the right foot, with pins and needles and numbness.
256 The plaintiff told him of avoiding various movements and doing limited housework. The plaintiff advised she was really unhappy and felt flat most of the time. Her self esteem and confidence had dropped and she felt bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated and had problems with memory and concentration. She was less sociable and had lost libido.
257 On mental state examination, the plaintiff had an anxious manner. Her affect was restricted and she appeared mildly depressed and anxious. There was no formal thought disorder. The content of her thinking was about her ongoing symptoms and the effect that had on her life. She was frustrated by her pain and would like to be able to go back to work, but did not think she would be able to cope. There was no evidence of any delusions or abnormalities of perception such as hallucinations. Cognition appeared normal, there was insight present and her judgment appeared to have been disturbed, but that had improved.
258 Dr Epstein noted there had been significant changes in behaviour and the plaintiff had become much more isolated and irritable.
259 Dr Epstein concluded that there was no evidence of a Chronic Pain Disorder. The chronic manifestations of such a disorder were increasing pain that had become more widespread. He noted the plaintiff appeared to have had pain that was relatively circumscribed and had stayed much the same, with some radiological evidence of changes in her lumbar spine.
260 Dr Epstein thought it likely that if the plaintiff’s pain improved, her psychological state would also improve.
261 From a diagnostic point of view, Dr Epstein thought the plaintiff had a Chronic Adjustment Disorder with Depressed Mood as a consequence of chronic pain, discomfort and disability. He thought she may well benefit from further psychological treatment and there appeared to be no other factors contributing to the situation, other than the injuries at work.
262 Dr Epstein did not gain the view that the plaintiff’s injury and incapacity was driven by psychological factors. Any capacity for suitable employment depended on her physical condition and not her psychiatric state, and her incapacity for employment was a result of her physical injuries.
263 Dr Epstein thought the plaintiff’s prognosis with regard to her psychiatric state was dependent on what happened as far as her back was concerned. Since it was now almost five years since the injury, he thought it unlikely there would be much improvement and her condition could essentially be regarded as stable.
Investigations
264 Mr Armin Drnda, neurosurgeon, referred the plaintiff for an MRI scan of her spine in November 2007. It was reported no cause was identified for the right S1 sciatica. It was noted there was a cystic mass related to the right ovary which required further investigation.
265 Mr Schofield organised a multi-positional MRI scan of the thoracolumbar spine in September 2012.
266 It was reported that there was no significant canal or foraminal narrowing at any level and no other significant features of note. At L4-5, there was slight desiccation change in neutral (standing) imaging.
267 At L5-S1 dynamic (standing) imaging, there was no change. There was borderline clumping of the nerve roots at the right side just below the conus medullaris. It was noted the features, however, were most likely within normal limits and doubtful to represent arachnoiditis.
Claim Documents
268 By letter dated 27 May 2010, Xchanging advised the plaintiff that liability was accepted pursuant to s98C in relation to her low back injury suffered on 9 November 2007, but rejected in relation to right leg pain, depression and anxiety.
Termination Letter
269 By letter dated 3 December 2010, the first defendant advised the plaintiff that she was to have five weeks’ notice for her employment to be terminated owing to the fact her incapacity was not temporary and her resultant inability to carry out the inherent requirements of her pre-injury position.
The Defendants’ Evidence
Medico Legal Evidence
270 Mr Sinha, consultant surgeon, examined the plaintiff on behalf of Cambridge Integrated Services Victoria Pty Ltd in December 2007.
271 The plaintiff then complained of suffering from low back pain, mainly on the right, with pain extending down the right leg below the calf level. There was no deformity on examination of the spine and palpation revealed no tenderness. There was forward flexion to eighty degrees with a good spinal curvature, suggestive of adequate vertical mobility. Other movements were full.
272 Bilateral straight leg raising was to eighty degrees with no pain or discomfort. There was no neurological abnormality. Mr Sinha noted the 2007 MRI revealed multi level facet joint arthritis without any other abnormality and, in particular, no obvious cause identified for sciatica.
273 Mr Sinha noted that in the Worker’s Injury Claim Form, there was no specific incident described.
274 Mr Sinha then thought the plaintiff had a current work capacity, but she would be unfit to do her pre injury duties whilst complaining of pain, but would be fit to do them in the future. He thought she needed to be assessed by a rheumatologist, as he considered she was suffering from structural lower back pain due to facet joint arthritis or dysfunction. He noted the plaintiff’s back pain was associated with leg pain, but without any localising neurological signs which was typical of that condition.
275 Mr Sinha thought the plaintiff needed suitable alternative duties, avoiding heavy lifting and repetitive bending movements. In his view, the temporary and partial incapacity in the plaintiff was unrelated to her employment. He thought the plaintiff had the ability to undertake activities of daily living with or without treatment. He considered she may benefit from the use of suitable analgesic medication and, if needed, local steroid injections and may well need the support of a pain management program in the future.
276 Dr Peter Stevenson, consultant physician, examined the plaintiff in October 2008.
277 The plaintiff then said if she was really good she could work, but did not know when she would be really good.
278 On examination, the plaintiff indicated pain to be at the right side of her lower back around the SIJ. She managed eighty degrees of forward flexion with quite good effort, and extension was just sort of normal. Straight leg raising was to eighty degrees bilaterally and lower limb neurology was normal.
279 Dr Stevenson noted the plaintiff reported work which involved lifting, standing and sitting, as a result of which she appeared to have developed non specific back pain. There had been, on occasions, some radiation into the right leg, suggesting referred pain, but no evidence of any gross neurological compromise. In his view, the MRI showed simply age-related degenerative change.
280 Dr Stevenson noted there was no substantive inconsistency on physical findings. There was good effort. Investigations showed no specific pathology. In his view, the plaintiff had age-related degenerative change. He noted current critical studies would indicate this had little, if any, relationship to pain or disability. He thought the plaintiff had mild facet joint arthropathy which in some studies had a mild association with back pain.
281 Dr Stevenson commented that non specific back pain was a common, almost ubiquitous, human predicament and responded very poorly to medicalisation and responded best to continuous normal activity. He noted there are guidelines on return to work with non specific back pain. He thought it reasonable to allow a short period off work, but in fact the longer the plaintiff was off and the more the situation was medicalised, the worse the outcome, and she should be returned to work as quickly as possible.
282 Dr Stevenson thought it reasonable to allow some very temporary lifting restrictions. In his view, the cause of incapacity and non specific back pain tended to be psychosocial rather than physical. In his view, the plaintiff should simply be returned to the workforce as soon as possible. He thought she was very clearly fit to return to work and appeared a well intentioned lady who would not benefit from further time off. He thought she should be returned to her work with minimal restrictions, simply to enable her to regain confidence, and with a rapid escalation of hours.
283 Dr Ross Wilkie, consultant radiologist, provided a report of 8 July 2011 reviewing the findings on the November 2007 MRI scan.
284 In Dr Wilkie’s view, the report did not describe any spinal abnormality and he concluded there was no cause for the right S1 sciatica.
285 Dr Wilkie thought the study indicated established changes of L4-5 disc degeneration without herniation. There was no evidence of focal neural compression, a view according with that of Mr Drnda.
286 Commenting on Mr Drnda’s views about arthropathy, when he said the plaintiff had arthropathy on that segment caused by physical arthropathy strain, Dr Wilkie felt Mr Drnda was implying that the plaintiff had an abnormal L4-5 disc, to which he had annotated “arthropathy”, and was then saying that this change was caused by physical strain.
287 Dr Wilkie explained the term “arthropathy” does refer to abnormal synovial joints that have articular surfaces in the joint capsule. It was a broad, generic term and arthropathy could have many specific causes. In his view, disc degeneration could not be described as arthropathy; however, facet degeneration could. He thought it possible that Mr Drnda was referring to facet degeneration as arthropathy, but had not described facet degeneration in his analysis.
288 In terms of leg pain, there was no evidence of neural compression on MRI, and Dr Wilkie thought the leg pain could result either from referred pain due to facet degeneration or due to disc degeneration.
289 Dr Wilkie believed that the degenerative changes were present prior to the onset of work in 1997 and that would also apply to facet degeneration.
290 Whilst he thought the findings were not normal, they were common, even in people without a history of manual physical activity, noting disc degeneration was a function of age in part. However, family history was probably important.
291 Dr Wilkie concluded the plaintiff had established L4-5 disc degeneration and, to a lesser extent, L1-2 disc degeneration without herniation, but with facet degeneration at L4-5. He thought those changes were probably present prior to the onset of work in 1997, and noted repetitive work activity could aggravate, but not specifically cause, these abnormalities.
292 In Dr Wilkie’s view, the plaintiff’s symptoms of back and leg pain were most likely related to the MRI demonstrated abnormalities. He thought the leg pain was undoubtedly referred and not radicular, as explained earlier. In his view, there was no evidence of neural compression related to a specific abnormality such as disc herniation.
293 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff at her solicitor’s request in May 2010.
294 The plaintiff then described constant low back pain, the severity of which she said fluctuated between two and five out of ten, and reported only very rarely she was pain free.
295 On examination, the thoracolumbar spine was straight, flexion was to fifty degrees with twenty degrees of extension, both accompanied by low back pain. Lateral flexion was to twenty degrees and the plaintiff reported tenderness in the lumbosacral junction and both buttocks.
296 Passive straight leg raising was seventy degrees bilaterally and the plaintiff was capable of active straight leg raising. Reflexes, power and sensation were normal.
297 Mr O’Brien noted review of a 2007 MRI scan did demonstrate some loss of normal disc signal at L4-5, but no evidence of disc space narrowing or disc protrusion.
298 Mr O’Brien noted the plaintiff’s symptoms now related to some pain restriction of lumbar movement without any evidence of nerve root compression. He thought the MRI scan certainly showed signal change at L4-5, present shortly after injury, and suggested that there was some degenerative change noted in the disc prior to injury and, given the failure of response to radio-frequency in denervation, he thought it most likely that the plaintiff had, in fact, discogenic pathology and disc disruption at L4-5.
299 Mr O’Brien thought the history would suggest employment was a significant contributing factor. He remained guarded in relation to prognosis, as one would certainly describe the clinical condition now as that of chronic pain. Given its relatively poor response to conservative treatment, he thought it likely the situation would continue.
300 In Mr O’Brien’s view, the plaintiff presented with mild disability. There was no question that she reported aggravation of pain with mechanical factors and thus she was certainly not capable of undertaking any form of heavy, physical duties. Therefore, she was not capable of returning to her pre-injury occupation.
301 Mr O’Brien, however, would not suggest the plaintiff was totally incapacitated and he thought she would be physically capable of light work.
302 The plaintiff told him such duties were not available from the first defendant and that is why she did not return to the workplace.
303 Mr O’Brien suggested that if the plaintiff was to return to the workplace, she would have to find alternative employment confined to light duties, preferably on a limited hour basis. He thought the degree of restriction would certainly make it difficult to obtain appropriate employment and it may, in fact, eventuate that she will not return to gainful employment. Indeed, he considered the plaintiff did remain restricted in her general, social, domestic and recreational activities on a permanent basis.
304 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 17 January 2012.
305 He noted the plaintiff was rather vague about the onset of back pain and thought the first episode was in about 2006. She advised the pain was associated with the physical aspects of her employment.
306 The plaintiff told Mr Simm she had not improved since ceasing work. She had pain in the lower back each day, to the right of the midline over the SIJ. Pain radiated around both buttocks in the thighs and down to the feet, particularly the heels.
307 On examination, the plaintiff displayed a flat affect but was co-operative. She walked slowly and cautiously.
308 There was some mild, generalised tenderness in the lumbar region, extending over the SIJ. There was only moderate restriction of flexion with complaint of SIJ pain at extremes of flexion. There was mild to moderate restriction of extension, lateral flexion to each side and rotation to each side. The Waddell’s test for non organic back pain was negative. There were no signs of radiculopathy. There were some reported mild, non-anatomical sensory changes in the right leg compared with the left.
309 Mr Simm reviewed the 2007 MRI scan which he regarded as essentially normal. He reviewed a CD of the 2011 MRI scan where similar changes were noted. There was no focal disc prolapse or evidence of neuro compression and there were some mild degenerative changes which most likely involved the facet joints.
310 Mr Simm concluded no definite diagnosis was established for the cause of the pain. He thought the pain may have related to symptomatic exacerbation of early underlying degenerative pathology, but noted the changes on MRI were mild and not predictive of pain. He thought the subsequent clinical course had features of a Chronic Pain Syndrome. He was not able to establish a diagnosis of the pathology for the plaintiff’s ongoing pain. He thought the plaintiff seemed genuine in her presentation, although there were some features of Depressed Mood and a chronic adverse pain response.
311 Mr Simm noted assessment of the plaintiff’s work capacity was based on subjective factors. In his view, one would have expected the pain to have either resolved or improved greatly following the cessation of the aggravating factors, whereas her history was one of unremitting pain with no period of recovery. On the basis of that subjective report of pain, there was still a relationship with the employment. However, he doubted there was any underlying physical condition of the back which still related to employment.
312 However, on the basis of the plaintiff’s persistent pain, it appeared to Mr Simm that she would have an incapacity for physically demanding employment resulting from the compensable injury. On the basis of her complaints, there seemed to be some loss of function of the back resulting from the injury. He noted there were only limited physical signs of lumbar spinal dysfunction with mild to moderate restriction of movement, but no signs of radiculopathy and no explanation on investigation of the ongoing symptoms of referred pain into the lower limbs.
313 Mr Simm thought the plaintiff’s reported pain and restrictions were not consistent with the anticipated clinical course of aggravation of the mild underlying degenerative pathology in the lumbar spine from work, and the clinical course was that of a Chronic Pain Syndrome. Whilst the results of the Waddell’s test were negative, they were not diagnostic of non-organic back pain and not necessarily present in all patients with a Chronic Pain Syndrome.
314 In a supplementary report, Mr Simm agreed that the jobs suggested in the vocational report of July 2012 were appropriate and the plaintiff did not have a physical condition that would prevent her returning to suitable light employment options, including light packing with sit/stand stool provided, light product assembler with sit/stand stool provided, light process worker with sit/stand stool provided and machine operator with sit/stand stool provided.
315 Mr Simm noted that apparently the plaintiff had a self perception of ongoing injury and disability and her physical activities were restricted by her Chronic Pain Syndrome. He thought a full assessment of the plaintiff’s work capacity should probably include a psychiatric assessment.
316 Mr Simm noted the current general practitioner certified the plaintiff for modified duties and hours, fifteen a week, and that the constraints on the WorkCover Certificate were within the physical restraints of the listed occupations. He thought it was more likely the plaintiff would return to work if she was offered part time employment and, from a physical point of view, she should be able to undertake the light options full time.
Lay Evidence
317 Michael Carmona is employed currently by the first defendant as a production trainer and was packing supervisor at the time of the plaintiff’s injury. He swore an affidavit on 16 October 2012, exhibiting statements made by him in January 2008 and May 2011 relating to the plaintiff’s WorkCover claim.
318 Reliance was placed on these statements, insofar as the provision of light duties was concerned.
319 In his January 2008 statement, Mr Carmona stated the first defendant could provide light or modified duties and they had return to work plans drawn up for an injured staff member in his statement of January 2008.
320 Mr Andrew Kiely, the first defendant’s plant manager, swore an affidavit on 16 October 2012, exhibiting his earlier statements made in January 2008 and May 2011.
321 In his January 2008 statement, Mr Kiely set out that the first defendant could provide light alternative duties for an injured worker and could draw up a return to work plan as required. They could complete this or get a third party provider of such services to assist as required. The return to work plan could be modified as required and all parties would be required to comply with the return to work plan and any restrictions in the certificates of capacity. The company’s intention would be to get the staff member back to their usual duties and hours if possible, as soon as possible.
322 Mr Kiely stated, once the plaintiff reported her claimed injury, she had not been back to work, and she was currently certified as unfit for all duties. He had started to draw up a return to work plan for her; however, he required further information with regard to her restrictions. He noted that had been put on hold until she was certified as fit for light alternative duties.
323 In his later statement of August 2011, Mr Kiely said he could not recall seeing any medical certificates for the plaintiff that indicated light duties. The first defendant did have the ability to provide light modified duties that were within the plaintiff’s restrictions.
Certificates
324 Following an examination on 5 March 2009, Dr Bogetic certified the plaintiff was fit for modified duties from 11 March to 7 April 2009. The work restrictions were noted as “heavy lifting less than three kilograms, repetitive back movements, no bending, pushing, no prolonged standing or sitting, three hours a day per week”. The diagnosis was described as “acute back pain”.
325 There was a return to work plan and offer of suitable employment dated 18 December 2007.
326 The return to work plan attached an offer of suitable employment involving duties with the inspection table, cleaning of white green trays, Riddle plate slat counter on king bottle line. It was noted that there was a current certificate from 1 December 2007 to 28 December 2007 in which the doctor had certified the plaintiff was unfit for any duties.
Vocational Evidence
327 A vocational assessment report was carried out by Counselling Appraisal Consultants in July 2012. In order of priority, the following jobs were identified as suitable employment options:
§ light packing with sit/stand stool provided ($750 per week);
§ light product assembler with sit/stand stool provided ($775 per week);
§ light process work with sit/stand stool provided ($790 per week);
§ machine operator with sit/stand stool provided ($1,100 per week).
328 It was noted that before the plaintiff commenced any employment, medical clearance would be required from her treating practitioner after viewing a worksite assessment report detailing the suitability of the specific tasks within that period.
Overview
329 There is no dispute that the plaintiff suffered a compensable injury to her lumbar spine in the incident.
330 Although her claim for weekly payments was initially rejected, there was a subsequent settlement at the Magistrates’ Court, where she was paid for a limited period. Significantly, the plaintiff’s claim for impairment benefits pursuant to s98C was accepted.
331 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
332 The plaintiff’s condition has been predominantly diagnosed as aggravation of pre-existing degenerative change in the intervertebral disc at L4-5 and to a lesser extent at L5-S1.
333 Mr Schofield was the only practitioner who thought that the plaintiff’s clinical signs were consistent with a lumbar disc prolapse.
334 The preponderance of medical opinion is that that condition is organically based. Mr Simm was alone in his view that there were features of a Chronic Pain Syndrome.
335 In submissions, counsel for the defendants did not maintain that the plaintiff’s condition was not organically based, but submitted “there was some kind of general acceptance that there was psychological factors at play” and that these factors must be ignored when considering the seriousness of the pain and suffering and loss of earning capacity consequences.
336 In this regard, reliance was placed on Mr Schofield’s opinion, but closer analysis of his report reveals he noted being provided with material suggesting non organic factors, not that he considered they were present.
337 Further, Dr Gassin did not assist the defendants in this regard. He made it very plain that the plaintiff was genuine and that her complaints were consistent, and there were no signs of psychological pain.
338 Mr Wilkie, the radiologist, agreed there were some abnormalities which were referable to the plaintiff’s complaints and provided an explanation for her ongoing symptoms.
339 Mr Brownbill did not comment on psychological factors, explaining that it was outside his sphere.
340 Mr Field found a Chronic Adjustment Disorder and Pain Disorder, the latter being a psychological condition.
341 Accordingly, overall, I am satisfied that the plaintiff’s back condition is organically based.
342 The defendants accept, based on the plaintiff’s evidence, the consequences of her impairment are “significant” or “marked”, but not more than that, and not “serious”.
343 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
344 I found the plaintiff to be a credible and genuine witness, a view shared by Mr Simm. She was in obvious pain in the witness box and most of the time sat forward on her chair, and at times needed to stand, she explained, because of back pain.
345 There is no surveillance film or any other evidence challenging the plaintiff’s evidence of her symptoms and restrictions. No medical practitioner thought that she exaggerated her condition on examination or that examination findings were inconsistent. In fact, Mr Simm found the Waddell’s test for non-organic signs negative.
346 I accept that since the end of 2007, the plaintiff has experienced low back pain of varying intensity, radiating predominantly into her right leg and down to her right foot.
347 The plaintiff acknowledged pain was not present all the time and it comes and goes and it is mostly with activity. She can get comfortable when varying her posture.
348 The plaintiff acknowledged some improvement since the end of 2007, when she ceased work, and also following the 2009 procedure. However, the relief from the procedure was short-lived.
349 Since suffering injury, the plaintiff has required various forms of medication, including Tramal and Panadeine Forte. Presently, Dr Bogetic prescribes slow-release Panadol Osteo, which Dr Gassin described as the weakest painkiller available.
350 The plaintiff takes this medication three times a day, morning, noon and night. I accept this continues to be the case, as Dr Gassin confirmed, despite the inconsistencies in histories given by the plaintiff to various examiners as to her medication intake. There was no hysterical overreaction by the plaintiff to her condition and she is taking what she is prescribed. Further, the plaintiff conceded this medication was of some assistance.
351 In addition to physiotherapy at various times, the plaintiff has undergone a number of procedures performed by musculoskeletal therapists. She underwent facet block injections in early 2009 and that diagnostic procedure was followed by radio-denervation frequency in June 2009, from which the plaintiff obtained limited relief, such that Dr Gassin thought it was not worthwhile repeating the procedure.
352 I am satisfied that, as a result of her back pain and resultant restrictions, the plaintiff is limited in housework and other domestic activities she can perform.
353 Whilst her children helped with housework before the plaintiff suffered injury, she now relies on their assistance to a greater extent. The plaintiff avoids heavier tasks, such as cleaning the bathroom, lifting, pushing a shopping trolley and doing heavier cooking tasks, as she knows such tasks cause an increase in her pain such that, at times, she has to lie down if she has attempted them.
354 During the various legs of a plane flight to Europe last year, the plaintiff had to get up and move around the plane because of back pain. She also had to take tablets. She cannot travel as a passenger in a car for more than two hours without experiencing increased pain.
355 The plaintiff no longer attends the theatre with the same frequency, because she cannot sit though a performance without having to move around and annoy fellow patrons.
356 Further, the plaintiff’s sleep is significantly affected with difficulty getting to sleep and then waking with pain. She no longer takes sleeping medication as it made her too tired the following day. Two to three nights a week she relies on herbal remedies; however, she still experiences tiredness the following day.
357 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
358 Whilst the plaintiff has retained a good range of movement, as Dr Gassin and examiners have described, and she has a walking tolerance in the range of half an hour, the plaintiff has significant restrictions in prolonged standing, has problems with flexion and is incapable of lifting other than the lightest of objects.
359 I accept, as do all medical examiners, that the plaintiff no longer has the capacity to return to unrestricted manual work in which she engaged prior to suffering injury.
360 Significantly, in the termination letter of January 2010, the first defendant advised the plaintiff that her employment was terminated because of her inability to do her normal job on physical grounds.
361 Whilst the plaintiff has tertiary training in economics and worked in that field in Bosnia, clearly, she was unable to translate those qualifications into a working capacity immediately after her arrival in Australia, being unable to successfully complete the necessary study.
362 In those circumstances, I accept there would be little chance the plaintiff would have any success having her qualifications upgraded to the point where she could now work in her field, in light of her injury, level of pain and the effect that pain had on her memory and concentration, as she described.
363 Further, the plaintiff’s inability to sit and her unreliability in attending work on other than a very short-term basis would make her unable to work in a sustained fashion in her profession even if she obtained the relevant qualifications.
364 I accept the submission by her counsel that the plaintiff is a forty-seven year old woman who did one job in Australia for ten years, earned very good money, sustained an injury, and continues to experience chronic pain and is prevented from returning to her pre-existing employment on anyone’s view.
365 I am satisfied, in such circumstances, given the plaintiff’s level of pain and restriction and the consequences thereof relating to both work and her daily activities, the plaintiff suffers a serious injury in relation to her lumbar spine.
366 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, 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 – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
367 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.
368 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
369 “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.
370 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.
371 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.
372 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
“It must be remembered that under subs (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. …”
See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 70.
373 Counsel for the defendants submitted that the figure which most fairly reflected the plaintiff’s earning capacity but for injury was her 2006-2007 earnings of $48,500, the first year in which she was employed on a full time permanent basis. It was submitted higher earlier earnings related to casual work and overtime and should therefore not be taken into account.
374 Counsel for the plaintiff ultimately relied upon wage records as at the time of injury and three years thereafter. As at 15 October 2007, the plaintiff’s hourly rate was $22.23. Three years later, that rate had increased to $25.01, an increase of 12.49 per cent increase over that period.
375 It was submitted that if one applied that increase to the plaintiff’s taxable earnings in the year ended 30 June 2007, which were $48,540, the final figure was $54,603. On this analysis based on hourly rates, overtime was not relevant.
376 Whilst not taking issue with these wage rates, counsel for the defendants submitted it was not an appropriate analysis. I disagree with this submission. The rates relied upon by the plaintiff relate to the relevant statutory period which I am required to consider and, in my view, most accurately reflect the plaintiff’s earning capacity with the first defendant had she not been injured.
377 Sixty per cent of that “without injury” earnings figure of $54,603 is $32,761 or $630 per week.
378 Whilst the consensus of medical opinion is that the plaintiff does not have a capacity for her pre-injury employment or unrestricted manual employment, there is a suggestion by a number of practitioners that she could work limited hours.
379 However, I am not satisfied the plaintiff could work in excess of the fifteen hours per week, with restrictions, as certified by Dr Bogetic, on a consistent reliable basis.
380 Other medical opinion is on similar lines.
381 In August 2012, Mr Brearley considered the plaintiff had some capacity for suitable employment of a light nature where she could vary her posture and work with lifting and bending restrictions. He thought she could work part time only – three hours, five days a week – but there was no realistic possibility of her getting work given her age, her language difficulties, her ongoing disability and her history of a WorkCover claim; there was no likelihood any employer would be prepared to give the plaintiff work of any description. In other words, she would have no current work capacity.
382 In 2012, Mr Schofield thought that the plaintiff’s physical injury prevented her from undertaking any suitable employment when regard was given to her medical condition, qualifications, English language skills and time out of the workforce. If she did engage in any other suitable employment, he thought she would need restrictions in the amount of sitting, bending, standing or lifting and it would be likely to be on a part time basis initially.
383 Following examination in September 2012, Dr Middleton thought, in a very flexible employment situation, the plaintiff could attend work two to four hours per day, two to four non-consecutive days per week, with a maximum of twelve hours in any week, undertaking non manual duties for which, in his opinion, she was not vocationally skilled.
384 In May 2010, Mr O’Brien thought the plaintiff would be physically capable of light work. The plaintiff told him such duties were not available from the first defendant and that is why she did not return to the workplace.
385 Mr O’Brien suggested that if the plaintiff was to return to the workplace, she would have to find alternative employment confined to light duties, preferably on a limited hour basis. He thought the degree of restriction would certainly make it difficult to obtain appropriate employment and it may, in fact, eventuate that she will not return to gainful employment
386 Mr Simm alone thought the plaintiff had a greater work capacity. He agreed that the jobs suggested in the vocational report of July 2012 were appropriate and the plaintiff did not have a physical condition that would prevent her returning to suitable light employment options, including light packing with sit/stand stool provided, light product assembler with sit/stand stool provided, light process worker with sit/stand stool provided and machine operator with sit/stand stool provided.
387 Mr Simm noted that apparently the plaintiff had a self perception of ongoing injury and disability, and her physical activities were restricted by her Chronic Pain Syndrome.
388 Mr Simm noted the current general practitioner’s certification and that the constraints therein were within the physical restraints of the listed occupations. He thought it was more likely the plaintiff would return to work if she was offered part time employment and, from a physical point of view, she should be able to undertake the light options full time.
389 Whilst the plaintiff deposed she thought she may be fit for part time work and had advised various examiners to this effect, I accept her viva voce evidence that she would be unable to do the duties of the type that were described in the vocational assessment for in excess of the certified level of fifteen hours per week on a consistent reliable basis.
390 I accept that probably the plaintiff could do a bit of light bench work for a few hours a day but she was going to be unreliable because of her pain and fluctuating symptoms. In such circumstances, I do not consider the plaintiff had a capacity for suitable employment other than on a very limited basis in terms of hours and duties.
391 Dr Gassin confirmed this situation in his viva voce evidence. A similar view was expressed by Mr Brownbill in his report.
392 Further, the plaintiff’s need to “agitate herself with regularity”, changing her position and at times needing to lie down in order to relieve her pain would make her an unreliable employee even when she was well enough to attend the workplace – see Barwon Spinners Pty Ltd v Podolak (supra) at paragraph 74.
393 The plaintiff would have problems with bending, lifting and twisting involved in the suggested jobs. Further, she cannot sit or stand for long and at times needs to lie down – a situation that could not be accommodated within the suggested roles. Also her pain affects her memory and concentration and she would have difficulty driving other than a short distance to work
394 I accept the plaintiff made two approaches to the first defendant after the 2009 procedures, seeking work in line with her certificates; however, no such work was offered to her despite the matters deposed to by Mr Caroma and Mr Kiely.
395 The vocational assessment is limited. in that it depends on a medical clearance and does not have any analysis whatsoever of her issues of retraining.
396 There is no psychiatric evidence of a work incapacity.
397 Taking into account all the evidence, I am satisfied that the plaintiff has suffered the requisite loss of forty per cent. In my view, she does not have the capacity to earn in excess of $630 per week.
398 Even working half time in the three of the suggested jobs, the plaintiff would earn less than $400 per week and in the most well paid role as a machine operator, she would earn only $550 per week.
399 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
400 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
401 Having found her situation would be unaltered by retraining or rehabilitation, and given her symptoms have persisted for almost five years with limited improvement, I am satisfied the plaintiff’s impairment is permanent.
402 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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