Tran v Pacific Brands Products Pty Ltd
[2014] VCC 460
•12 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01412
| KIM LOAN TRAN | Plaintiff |
| v | |
| PACIFIC BRANDS HOUSEHOLD PRODUCTS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 March 2014 | |
DATE OF JUDGMENT: | 12 May 2014 | |
CASE MAY BE CITED AS: | Tran v Pacific Brands Products Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 460 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the cervical spine – disentanglement – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ansett Australia Ltd v Taylor [2006] VSCA 171; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46
Judgment: Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of her employment with the defendant on 20 June 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with Ms M Pilipasidis | Slater & Gordon Ltd |
| For the Defendant | Mr N Chamings | Thomsons Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 20 June 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application with respect to s134AB(37)(a) is injury to the cervical spine.
6 The mental or behavioural disturbance or disorder relied upon with respect to s134AB(37)(c) is a psychiatric injury which is a sequelae of the physical injury.
7 The plaintiff relied upon five affidavits sworn on 15 November 2011, 28 June 2012, 18 February 2013, 10 October 2013 and 3 March 2014. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits and evidence; however, I will refer to the relevant evidence of the plaintiff in my reasoning.
8 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
9 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
10 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of her impairment to the cervical spine in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”;[4]
[4]Section 134AB(38)(b) and (c)
(d) “the consequences” to the plaintiff of her psychiatric injury in relation to “pain and suffering” or “loss of earning capacity” must be “severe” when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be.[5]
The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”.[8]
[5]s134AB(38)(d)
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis (supra) at 846
11 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[9]
[9]Section 134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[10]
[10]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[11] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[12]
[11]Section 134AB(38)(e)(ii) of the Act
[12]Section 134AB(38)(a) of the Act
12 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[13]
[13]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
13 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
14 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[14]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[15]
[14][2009] VSCA 181
[15](supra) at paragraph [42]
15 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[16]
[16]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
16 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
17 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[17]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[18]
[17]Section 134AB(38)(j) of the Act
[18] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The issues
18 First, Counsel for the defendant informed the Court that the alleged injury to the cervical spine was questioned, as the plaintiff did not complain of cervical spine injury until some months after the alleged day of injury. The plaintiff complained of injuries to her rib, chest and knee, for which she claimed compensation.
19 Second, this is a “range case”. The plaintiff returned to work, and continued to work full hours on restricted duties, until a few months before she was retrenched.
20 Finally, the mental or behavioural disturbance or disorder resulting from the injury is not “severe”.
Investigations
21 On 21 July 2008, a CT scan of the chest concluded:
“Healing fractures at the anterior aspects of the left 4th and 5th ribs.
No other findings.”[19]
[19]Plaintiff’s Court Book (“PCB”) 159
22 On 13 August 2008, a CT scan of the thoracic spine reported:
“The visualised portions of the lungs are clear.
No major paravertebral soft tissue masses are seen.
No major central canal or neuroforaminal stenosis identified.
No fracture is seen.”[20]
[20]PCB 150
23 On 22 September 2008, an x-ray of the cervical spine concluded:
“1 Mild mid to lower cervical spondylosis.
2No bony injury identified on plain x-ray. However given the clinical history trauma, CT of the cervical spine is recommended to exclude subtle bony or disc injury.”[21]
[21]PCB 149
24 On 22 October 2008, a CT scan of the cervical spine concluded:
“Minimal central disc protrusion at C2-3 of doubtful significance. Moderate apophyseal joint degenerative change at C4-5 on the right with minor right C5-6 apophyseal joint osteoarthritis. No definitely significant cord or nerve root compression.”[22]
[22]PCB 168
25 On 23 February 2009, an MRI scan of the cervical spine recorded:
“Mild to moderate cervical spondylosis changes noted from C2-C3 through C6-C7 levels.
The changes are most prominent at C6-C7 level with likely indentation of the exiting C7 nerve roots bilaterally.”[23]
[23]PCB 166
26 On 1 March 2011, MRI examination findings recorded:
“C6-7
Posterior disk osteophyte complex indents the anterior thecal sac with mild central canal stenosis.
There is associated uncovertebral joint hypertrophy.
Disk osteophyte is producing moderate right foraminal stenosis with contact of the exiting right C7 nerve root.
On the left moderate to severe left foraminal stenosis with impingement of the exiting left C7 nerve root.
…
CONCLUSION:
At C6-7 Posterior disc osteophyte complex indents the anterior thecal sac with mild central canal stenosis.
Moderate right foraminal narrowing with contact of the exiting right C7 nerve root.
Moderate to severe left foraminal stenosis with impingement of the exiting left C7 nerve root.”[24]
[24]Defendant’s Court Book (“DCB”) 132-133
The Plaintiff’s medical evidence
Dr Louis Luu
27 Dr Luu, general practitioner, has treated the plaintiff for her work injuries since 21 August 2008.[25]
[25]Dr Luu’s reports refer to 21 August 2009; however, on 31 October 2008, Dr Luu referred the plaintiff to Mr Patrick Lo
28 Prior to that, the plaintiff was treated by Dr T Ngo, her family medical practitioner.
29 Dr Luu obtained a history of an injury at work when the plaintiff tripped over a wet segment of raised concrete. She received treatment from the worksite first aid officer and remained at work until the conclusion of her shift. She reported to her family doctor the next day. She returned to normal duties until her chest pain increased.
30 CT investigation found evidence of three fractured ribs. She was off work for two weeks. The plaintiff reported left-sided chest pain, left wrist and forearm pain, headache, left-sided neck spasm and left knee discomfort. She reported good physical health prior to her injury.
31 The plaintiff’s employment was terminated in December 2008 due to lack of job availability.
32 In January 2010, Dr Luu said the plaintiff’s prognosis was moderately good, her injuries had a capacity to heal without further surgical intervention, she was a capable and motivated person with respect to work and that her physical injuries arose from a fall at her workplace. Dr Luu said the plaintiff’s psychological problems arose out of prior disagreements with her supervisor and co-worker, and from an adjustment problem following her physical injuries. He imposed limits to lifting no more than 4 kilograms in relation to the physical injury. He said she had an alternative work capacity.
33 In June 2011, Dr Luu reported to the Accident Compensation Conciliation Service. He diagnosed a fracture of the left third, fourth and fifth ribs, soft-tissue injuries to the left knee, cervical and thoracic spine, left forearm and wrist, and an Adjustment Disorder with Depression and Anxiety, and Chronic Pain Syndrome.
34 In relation to her physical injuries, Dr Luu maintained restrictions of lifting no more than 4 kilograms at a time. He said the plaintiff was able to work eight hours per day, five days per week, but may require five minutes’ rest per hour. He thought she had a capacity for alternate work with the physical restrictions.
35 In July 2012, Dr Luu said that since he had last reported, the plaintiff had been seen by Mr Lo in March 2011, a repeat cervical spine MRI scan showed a slight progression of C6-7 disc disease and spinal surgery was contemplated. The plaintiff had been referred to Dr Stockman, rheumatologist, by Mr Lo for a second opinion. After consultation with Dr Stockman, it was decided that surgery would not benefit the plaintiff. He recommended neck physiotherapy and analgesic medications. Dr Lo concurred.
36 The plaintiff was referred to Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who recommended chronic pain management.
37 The plaintiff was referred to Dr Le, rheumatologist, who recommended cessation of analgesic medications and the commencement of therapeutic massage and acupuncture.
38 Dr Luu said the plaintiff’s psychiatric conditions were managed by Dr Pham. The plaintiff complained of being depressed, very angry with her work supervisor, poor sleep, poor concentration and feeling deflated. She had become socially isolated and estranged from her extended family and friends. She was being treated with high-dose anti-depressants.
39 It was Dr Luu’s opinion that the plaintiff’s physical condition had stabilised. He said she continues to suffer from chronic neck pain, shoulder, left knee and left chest pain. The pain would limit both her physical capabilities and stamina. He did not believe the plaintiff had a current capacity for pre-injury work. He thought she had a capacity for work, generally of light duties or administrative-type duties. He thought she would be able to undertake work in the future with the assistance of employment agencies.
40 In February 2013, Dr Luu said the plaintiff’s current diagnosis was cervical spine C6-7 disc injury. He said she had undergone physiotherapy, therapeutic massages, acupuncture and medication of Panadeine Forte, Nurofen, Deep Heat ointment and Salonpas medicated plasters without sustained improvement. He thought that the plaintiff will suffer from chronic pain, reduced range of movement in her neck, and her prognosis was poor.
41 In regard to her physical injuries, her current capacity is limited to self-care and selected home duties only. She has no current work capacity.
42 In regard to her psychiatric injuries, Dr Luu diagnosed reactive major clinical depression complicated by secondary alcohol abuse and chronic pain. He said her prognosis was poor.
43 Dr Luu said the plaintiff’s depressive symptoms and reduced mental functioning remain severe. She has no current work capacity. He said she was unlikely to have any future meaningful work capacity, as her physical injuries have stabilised and become chronic. He said her psychiatric injuries have become chronic and it is unlikely she will improve sufficiently in the foreseeable future to have any work capacity.
44 In March 2014, Dr Luu said his diagnosis and prognosis had not changed since his report of February 2013. He confirmed that her regular medications are:
§ Nurofen Zavance, one to two tablets twice per day for pain;
§ Nexium, one tablet daily for chemical gastritis;
§ Stemetil, one tablet up to three times per day for dizzy spells;
§ Sandomigran, one tablet twice per day for migraine headaches;
§ Pristiq ER, 200 milligrams daily for chronic depression.
45 In respect to future capacity for suitable work, he said her chronic neck pain was the dominant factor in respect to her future capacity for suitable employment. From the psychiatric perspective, her depression and reduced capacity to cope with mental stress would be likely to persist into the future.
Mr Patrick Lo
46 In May 2009, Mr Lo, neurosurgeon, reported that he saw the plaintiff in February 2009 on referral from the plaintiff’s general practitioner. He obtained a history that she had tripped while walking over uneven flooring in June 2008, sustaining injury to her left shoulder and left ribs. Following that, she was bothered by severe right-sided neck pain with radiation down the right arm. He said an MRI scan in February 2009 revealed a mild C6-7 osteophyte/disc bulge which did not cause nerve root compression. In March 2009, she was noted to be stable. He accepted that the neck injury was work-related. He said the plaintiff suffered a permanent neck injury and could not return to pre-injury employment. She could return to suitable employment with restrictions, which included no lifting, no bending or twisting of the back, no persistent flexed lumbar spinal posture, regular breaks and reduced hours of work.
47 Mr Lo reiterated his opinion in a letter to the plaintiff’s solicitors dated 11 October 2009.
48 In July 2011, in a report to the Accident Compensation Conciliation Service, Mr Lo said the plaintiff returned for review in February 2011 complaining of persistent neck pain. She underwent a repeat MRI scan in March 2011 which revealed progression and worsening of the C6-7 disc/osteophyte complex. There was evidence now of compression of the exiting C7 nerve roots bilaterally. He said this had progressed compared to her previous MRI scan.
49 Mr Lo’s opinion was that her neck pain was worse, with evidence of progression of the C6-7 disc prolapse. He said the plaintiff has suffered a neck injury involving an aggravation of C6-7 osteophyte, as well as a C6-7 disc prolapse causing C7 nerve root compression bilaterally. He said the plaintiff did not have a current capacity for her pre-injury duties. He said the worsening of her neck pain and the evidence of the radiological changes on the MRI scan meant that her condition may not allow for a return to suitable duties. A further review will be required.
50 Mr Lo said the plaintiff’s inability to work is not likely to be indefinite. He thought that with rehabilitation, retraining and appropriate medical and possibly surgical management, the plaintiff may return to the workforce. He said the plaintiff required physiotherapy.
51 In January 2013, after reviewing the plaintiff in August 2012, Mr Lo said the plaintiff’s prognosis remained poor as she had not improved over the three years following her injury. He said that she did not have any neurological deficits, but continues to be limited because of her ongoing neck pain syndrome. He thought she required long-term management and may require enrolment in an ongoing pain management program as well as physical therapy programs. He said she did not have a current work capacity and it was highly unlikely that she will have any future anticipated work capacity despite attempts to retrain and the physical therapy provided.
Mr Paul D’Urso
52 In March 2014, Mr D’Urso, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff provided a history of a fall at work, sustaining a laceration to her left knee, and pain in her chest. She continued to work that day, but on the next day, attended her general practitioner. At this time, she noticed neck pain and pain radiating to her left arm and elbow.
53 When examined, the plaintiff reported neck pain at 10 out of 10. She reported weakness in her arms bilaterally and dropping things on occasion. She reported pain in her elbows bilaterally.
54 Mr D’Urso said the plaintiff sustained a fracture to the left fourth and fifth ribs, a laceration to her left knee, an injury to her left shoulder and cervical region as a result of the workplace accident. He said it was plausible that the accident had contributed to the development of a C6-7 disc prolapse which caused C7 nerve root impingement.
55 Mr D’Urso said the plaintiff remains symptomatic, mainly from the C6-7 disc prolapse which causes radicular C7 nerve root symptoms. He said there appears to be a degree of progression and degeneration in the cervical spine at this level with worsening symptoms.
56 Mr D’Urso recommended a C6-7 cervical discectomy instrumented interbody fusion procedure be considered to decompress the exiting C7 nerve roots. He said she required simple anti-inflammatory and analgesic medications to manage the neuropathic pain under prescription and supervision by her general practitioner into the foreseeable future.
57 Mr D’Urso said the plaintiff had no capacity for employment now or into the foreseeable future.
58 In summary, he said her condition had deteriorated with time, and surgical intervention would be appropriate. He said the condition appeared to have had a moderate effect on her social, domestic and recreational activities.
Professor Lorraine Dennerstein
59 In October 2012, Professor Dennerstein, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitors. She obtained a history that three months before the incident at work, she became very depressed due to her perceptions of being bullied and harassed by her supervisors for four months prior to the injury. She said she became sad and tearful, suffered anxiety and insomnia. She had one to two weeks off work on sick leave. She did not receive any counselling or treatment with anti-depressant or psychotropic medications. There was no family history of mental ill health.
60 Professor Dennerstein diagnosed an Adjustment Disorder with Mixed Anxiety and Depression in respect to the plaintiff’s perceptions of being harassed in the workplace in early 2008. Her symptoms worsened after she had her fall on 20 June 2008. She developed a Chronic Pain Disorder due to both physical and psychological factors. She experienced exacerbation of the Adjustment Disorder with Mixed Anxiety and Depressed Mood, which was further exacerbated at the end of the year when there were no longer any light duties for her to do at work. Professor Dennerstein said the plaintiff met the criteria for Major Depressive Disorder.
61 Professor Dennerstein said the plaintiff had no capacity to return to her previous place of employment, and returning there would likely exacerbate her psychological symptoms. She does not have a capacity for work currently. Her work capacity will be affected by the symptoms for the foreseeable future and she does not have the capacity to return to work for the foreseeable future.
Medical Panel
62 On 26 June 2012, it was the Medical Panel’s opinion that the plaintiff was suffering from persistent neck and upper back dysfunction, without radiculopathy as a consequence of an aggravation of cervical and thoracic degenerative disc disease, a very mild aggravation of chondromalacia patellae and from a Major Depressive Disorder, with paranoid and somatisation symptoms, relevant to the claimed injury. The plaintiff had no current work capacity, which was likely to continue indefinitely.
Dr Hieu Pham
63 Dr Pham, psychiatrist, provided reports dated 9 November 2009 and 21 June 2011 and letters of 14 November 2009 and 10 May 2011.
64 In May 2011, it was Dr Pham’s impression that the plaintiff’s main problem was alcohol consumption in addition to the psychological sequelae of the trauma that she sustained at work.
65 In June 2011, Dr Pham said the plaintiff’s main problems were alcohol dependency and her primary concern was to sue her boss in respect to bullying claims.
66 In summary, Dr Pham said the plaintiff’s main problem was alcohol dependency and chronic pain. She also had a number of depressive symptoms which would be considered an Adjustment Mood Disorder. He said while she has chronic pain, some of her depressive symptoms are likely to persist. He said it is highly unlikely that she will be able to work as long as she drinks alcohol and has chronic pain.
Ms Sandra Nguyen
67 Ms Nguyen, psychologist, provided reports dated 18 January and 28 September 2009, 18 June 2011, 20 July 2012 and 7 March 2014.
68 In her current report, Ms Nguyen said the plaintiff fits the diagnosis of Major Depressive Disorder and generalised Anxiety Disorder. Her condition has been long term since 2008 with ongoing use of the anti-depressant medication Pristiq; therefore, her prognosis is poor. She attends regular psychological counselling on a fortnightly basis to help deal with issues impacting her depression and anxiety. She will require ongoing psychological counselling in the foreseeable future. She said the plaintiff was unfit for all duties. She struggles to cope with a Major Depressive Disorder and generalised Anxiety Disorder which would prevent her from adequately performing any duties. She said this is likely to continue indefinitely.
Associate Professor Peter Doherty
69 In January 2014, Associate Professor Doherty, psychiatrist, examined the plaintiff at the request of the defendant’s insurer.
70 Associate Professor Doherty said the plaintiff’s use of the anti-depressant, Pristiq, was reasonable and appropriate. He said there was no ongoing indication for the anti-psychotic medication, Seroquel, as she does not have a psychotic condition. He said there was no clinical indication for psychological treatment for the work-related psychiatric condition. There will be no further clinical improvement. The use of Seroquel should cease, as should the psychological therapy. He said the anti-depressant medication should continue for the foreseeable future. He thought the plaintiff would be able to undertake the activities of daily living should the current psychological treatment and medication cease. Her ability to return to work would be reduced if the current anti-depressant medication was ceased.
71 He said, in his opinion, the plaintiff presents as if she has both a Chronic Pain Disorder and also a mild Major Depressive Disorder. He said the plaintiff presented as an angry person who feels victimised and is self-entitled. He noted there is an accepted psychological condition injury based on the Medical Panel opinion. He said the plaintiff’s current psychiatric condition remains materially relevant to that accepted psychological injury; that is, some ongoing material relevance between the physical injuries sustained in June 2008 to the current psychological condition.
72 He said the plaintiff does not have a current work capacity. She cannot return to pre-injury duties and hours, nor alternate duties and hours with the current or another employer.
73 He recommended that the plaintiff’s capacity for work and functional limitations be tested by observation of her functional performance.
74 He thought the plaintiff appeared to be inconsistent and unreliable. She has a histrionic and dramatic flavour to her presentation of symptoms. She comes across as angry and entitled. He said the plaintiff is an inconsistent and unreliable historian.
The Defendant’s medical evidence
Dr Dush Shan
75 Dr Shan, psychiatrist, examined the plaintiff at the request of the defendant’s insurer in August 2008.
76 Dr Shan diagnosed pre-existing mild dysthymic disorder which has been aggravated through excess alcohol consumption. He thought there was no work component and it was due to family problems. He said her condition had not resolved, but does not materially contribute to any incapacity for work or the need for treatment services.
77 Dr Shan re-examined the plaintiff in April 2010. He said the work-related psychiatric component was minimal and the physical injury was of mild proportions. He said she did not require psychiatric treatment.
78 In March 2011, Dr Shan reviewed the plaintiff and said that she was suffering from dysthymic disorder, the causes were multiple, including physical injury, biological disposition and inappropriate alcohol consumption.
79 Dr Shan said the plaintiff could not return to pre-injury duties, but that she could return to suitable employment in alternative duties and hours with another employer.
Dr Chris Baker
80 In August and November 2008, Dr Baker, occupational medicine specialist, provided three reports.
81 Dr Baker said the plaintiff reported suffering injuries with fractured ribs and abrasions of the left knee and soft-tissue injuries to the knee when she had a fall at work. He said there was a subsequent reaction of a non-physical nature. He was not sure whether it was a psychological reaction or relates to a Complex Regional Pain Syndrome Type 1.
82 Dr Baker concluded that there was a significant non-physical component to the plaintiff’s presentation and said she had commenced taking anti-depressant medication.
83 After considering Dr Shan’s report of 11 August 2008, Dr Baker noted that the MRI scan of the left knee dated 23 July 2008 did show some low-grade changes.
84 In conclusion, he considered the plaintiff had a restricted capacity for work which could be undertaken in sedentary duties. He was unable to state that the plaintiff was capable of undertaking her pre-injury duties, and said he would review her in the presence of a female interpreter.
85 In November 2008, Dr Baker undertook a medical examination of the plaintiff and a worksite inspection. He said he considered there was a significant non-physical component to her presentation. He suggested psychological treatment.
Dr Frank Fuller
86 In October 2008, Dr Fuller, sports physician, examined the plaintiff at the request of the defendant. The plaintiff reported pain in her left knee, left upper chest, right posterior shoulder and right neck related to a fall at work. He said the plaintiff’s fractured ribs should settle, and that her current pain is due to some inflammation in the left upper costochondral junctions of her left upper chest, plus myofascial pain involving the right trapezius of the scapular region and right side of her neck.
Mr Peter Battlay
87 In October 2008, Mr Battlay, surgeon, examined the plaintiff at the request of the defendant’s insurer.
88 Mr Battlay said the plaintiff suffered rib fractures, a soft-tissue strain to the knee and left wrist and skin abrasions to the knee in her fall at work.
89 Her injuries have resolved and there is no ongoing incapacity and no need for further treatment.
90 He thought she was medically fit for unrestricted duties.
Dr Frank Laska
91 In December 2008, Dr Laska, consultant physician and rheumatologist, examined the plaintiff at the request of the plaintiff’s general practitioner.
92 Dr Laska said, clinically, the plaintiff displays features of familial constitutive hypermobility of joints. He said there was localised tenderness within the zone that was traumatised in the fall which can be a myofascial pain phenomenon, regional soft-tissue rheumatism/fibromyalgia. He could find no evidence to suggest a connective tissue disease such as myopathy or neuropathy and the like.
93 In February 2011, Dr Laska said, on examination, there was some minor irritability of the left shoulder during abduction. Cervical and thoracolumbar spines show normal range of movement as a minimum.
94 It was his view that there were no significant changes from a clinical perspective, and he referred her back to her general practitioner.
Dr Stephen Stern
95 In January 2010, Dr Stern, psychiatrist, medically examined the plaintiff at the request of the defendant’s insurer. It was his opinion the plaintiff was suffering an Adjustment Disorder with Mixed Anxiety, Depressed Mood and alcohol dependence. He said her psychiatric state is related to the work accident of June 2008 and the resultant injuries. He said the plaintiff also feels she was victimised by management staff prior to and after the fall. He said she needs psychiatric treatment. Her social and leisure activities have been reduced. He thought her psychiatric state was stable.
Mr Michael Shannon
96 In February 2010, Mr Shannon, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s insurer.
97 When examined, the plaintiff reported daily pain over the anterior chest wall, the left wrist, the left knee and the upper back. She also reported getting “a bit stiff and sore every couple of days” in her neck.
98 On examination, the plaintiff had a normal range of movement of the cervical spine which was a little hesitant, although there is no spasm.
99 In Mr Shannon’s opinion, the plaintiff did sustain a soft-tissue strain to her neck and upper back in association with her rib fractures.
Dr Carolyn Arnold
100 In December 2010, Dr Arnold, consultant in rehabilitation and pain medicine, examined the plaintiff at the request of the defendant’s insurer.
101 It was Dr Arnold’s opinion that the plaintiff has cervical spondylosis. She fell and fractured three ribs, which have now healed, but she has persistent chest wall tenderness. She noted that the plaintiff had a high level of anger, frustration and emotional distress on presentation. She feels bitter about perceived harassment at work. It is possible that her psychological state is increasing her risk of a persistent Pain Syndrome.
102 In respect to Dr Baker’s diagnosis of Complex Regional Pain Syndrome, Dr Arnold said that Dr Baker did not undress her and without adequately undressing the patient and performing a full physical examination, he cannot make such a diagnosis.
103 Dr Arnold said the plaintiff’s condition was work related.
Dr David Barton
104 In March 2011, Dr David Barton, occupational physician, examined the plaintiff at the request of the defendant’s insurer. He said the plaintiff had a persistent problem following the development of a Chronic Pain Disorder.
105 Dr Barton did not believe the plaintiff had a capacity to return to her pre-injury duties, nor did she have a current work capacity. He believed that this related to her psychiatric state and he doubted things would change in the foreseeable future.
Dr Alex Stockman
106 In April 2011, Dr Stockman, rheumatologist, reported to Mr Lo, neurosurgeon.
107 It was Dr Stockman’s opinion the plaintiff had rather widespread pain. Neck pain was one of her major problems and he suggested referral to physiotherapy. He said he would like to exclude carpal tunnel syndrome and suggested that she be referred for nerve conduction studies. He said there were psychological problems and he was not sure whether surgery would assist the plaintiff.
Dr Clayton Thomas
108 In June 2011, Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff at the request of her Dr Le, rheumatologist. It was his view the plaintiff sustained an injury at work. She reported pain in her neck and right shoulder girdle, with pain into the left arm and, to a lesser extent, the right arm. He thought there were significant non-organic aspects to her presentation. He diagnosed neck pain with radiation into the left arm. He thought she had symptomatic spondylosis with brachialgia. He said rehabilitation was a logical next step. He was uncertain whether she would be accepted into a rehabilitation program. He thought it would be possible she might benefit from a pain management rehabilitation program.
Dr Christine Le
109 In July 2011, Dr Le, rheumatologist, saw the plaintiff on referral from Dr Luu. She diagnosed chronic pain. She said the plaintiff suffered some acute soft tissue and bony injury as a result of a fall at work in 2008, which was complicated by the development of secondary chronic pain syndrome, the current cause of her physical problems. She had nothing to offer the plaintiff and referred her to Dr Clayton Thomas.
Mr Rodney J Simm
110 In August 2012, Mr Simm, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. In relation to the cervical spine, he said it was some months after the fall that she reported symptoms and she presented with non-specific clinical signs of restricted movement with associated pain behaviour and multiple areas of tenderness. He said the plaintiff is suffering from some form of chronic pain illness, and notes the occurrence of a work injury and presence of conflict in the workplace. He expected her to continue to present with multiple symptoms indefinitely. Further, it was his view that a significant injury to the cervical spine in June 2008 would have caused symptoms on the day of the incident, or certainly within the next few days after the incident. He could find no physical condition which would incapacitate the plaintiff for work. He acknowledged that the plaintiff appeared to have a severe adverse pain response in association with an emotional disturbance and these factors may limit her ability to undertake heavy physical work. He said, from a physical point of view, she had a current work capacity for pre-injury employment, but that one cannot ignore her chronic pain illness and emotional disturbance. He further said she had a capacity for suitable employment. He noted that she had managerial experience, computer skills and that she was undertaking normal household duties. He said she could return to process work, packing, machine operation or similar light forms of employment.
NES vocational assessment report
111 In October 2009, WorkFocus Australia conducted a vocational assessment for the plaintiff. Ms Dennis reported that the plaintiff expressed a keen desire to return to alternative suitable employment. WorkFocus identified vocational options to be considered as viable for suitable employment (in the short term), namely, clerical and administrative worker, sales assistant, cashier, and call or contact centre operator. WorkFocus said the plaintiff did not require training for the employment options identified. It suggested the plaintiff be referred to a New Employment Service (NES) program to assist her in obtaining suitable employment. The plaintiff said she was interested in retraining in Information Technology. WorkFocus recommended to the defendant’s insurer that the plaintiff undertake an Introduction to Computers course conducted at Werribee Community Centre.
Credit of the Plaintiff
112 The plaintiff is Vietnamese. She gave her evidence with the assistance of an interpreter. She said her written English is poor. She was well educated, having commenced an economics degree in Vietnam. She had worked in her family’s business before coming to Australia. She arrived in Australia in 1995 and obtained TAFE certificates in hospitality and basic computer courses. She was unable to find work in these areas. Since arriving in Australia, she had been employed in factory-type work as a process worker, a machine operator and a ‘picker and packer’, and for a stint as a team leader.
113 The plaintiff answered all questions put to her in a direct and frank manner and made appropriate concessions. She conceded that she was suffering from plantar fasciitis which affects her standing on her feet for a long time. She impressed me as being motivated to work. She sought light duty work from her employer after being made redundant. She expressed to WorkFocus her desire to return to work. She was asked whether she could return to work on light duties for full-time hours. She said:
“Just because I haven’t tried, so I’m not certain that I can do eight hours or not.”[26]
[26]Transcript 35, Lines 3-4
114 When asked whether she could work as a sales assistant, she replied that she might be able to do it, she just never had the opportunity to try.
115 Dr Fuller described the plaintiff as genuine. Mr Simm recorded overt pain behaviour on examination, particularly of the neck, left shoulder and thoracolumbar spine, and said she suffered some form of pain illness. Dr O’Doherty described the plaintiff as “histrionic and dramatic in her use of language and came across as angry and self entitled”. Both Mr Simm and Dr O’Doherty saw the plaintiff on one occasion. Her general practitioner, Dr Luu, and Mr Lo, who treated the plaintiff on a number of occasions, made no comment about the plaintiff’s credit. Overall, I accept that she was truthful.
Surveillance
116 I was shown DVD-video surveillance film of the plaintiff. I was informed that there was 149.5 hours of surveillance and total film of 86 minutes. Surveillance conducted on a number of days had no activity or no sighting of the plaintiff. The first surveillance film was of 20 February 2013 and showed the plaintiff at Paisley Street, Footscray. The plaintiff was pointing, moving her arms and talking to people on the side of the road. The plaintiff said that she had almost been hit by a car. People asked her what had happened. She was shown walking about the shops and carrying a plastic shopping bag, which she said contained a number of tissue boxes. She was observed at another shopping centre carrying a plastic bag, which she said contained a carton of eggs. She went to the Library. She agreed that she could talk to people. She said the surveillance did not show the pain that she felt when she walked.
117 The plaintiff was shown further surveillance film of 8, 9, and 11 March 2012 where she was shopping with her partner. She agreed that she used tongs to place prawns in a plastic bag which she carried. She examined fruit, collected fish and went to the ATM. She agreed that she performed all activities without apparent restrictions. She said she was in pain, but still walked.
118 The plaintiff was shown surveillance film of 9 March 2012 of her house. She was unable to say whether it was her or her partner who was watering the garden.
119 On 11 March 2012, the plaintiff agreed she was seen walking with her partner and moving freely. She was observed grabbing her neck. She said she massages her neck to relieve the pain. She had a bag in her right hand and changed it to the left hand. She said this was because of the pain.
120 Further surveillance film of 17 and 23 May 2012 was shown. The surveillance of 17 May 2012 was for 20 minutes. It showed the plaintiff at the Essendon Fields Directory Factory Outlet where she was shopping. She agreed she was able to squat to reach using both her hands.
121 On 23 May 2012, there was surveillance film of 16 minutes. The plaintiff was asked whether she wheeled the rubbish bin to the front of her house. She said it was her father’s chore to push the bin outside. It was windy and she went to check that the bin was in a balanced position. In the past when the bin fell over, spilling garbage, she was fined by the local council. She agreed that she was seen watering her garden with a watering can and was observed shopping with her partner.
122 The plaintiff was shown further surveillance film of 27 February 2013 of 9 minutes. She agreed that she was shown in the library selecting a DVD from the top shelf. She was observed to grab her neck, and said this was because it was painful.
123 Overall, the surveillance confirmed that the plaintiff went shopping and on occasions, watered her garden, sometimes using a watering can. It did not show the plaintiff doing anything inconsistent with her evidence. Accordingly, it did not assist the defendant’s case.
The physical injury, the cervical spine
Causation
124 Counsel for the defendant submitted that causation was in issue in respect to the cervical spine, as the plaintiff did not complain of a cervical spine injury until some months after her fall in June 2008. Further, the Claim Form signed by the plaintiff on 7 July 2008 and the Certificate of Capacity issued by Dr S Nguyen dated 17 July 2008 did not refer to neck pain.
125 The plaintiff’s evidence was that initially the chest pain was the most severe pain. She attended Dr Ngo, general practitioner, and reported neck pain:
“Because I went to Dr Ngo a number of times and complained of my neck, but she won’t let me have a scan. She would just say that it was a shock as a result of the fall and it was not an actual injury. Then as my pain increases, I decided to change doctor.”[27]
[27]Transcript 16, Lines 27-31
126 The clinical records of Dr Ngo do not refer to neck pain, but confirm a discussion in relation to “the judicious use of imaging facility and risk of radiation”.
127 Further, she said:
“No, I experienced pain in my neck around 10 or so days after the accident. However, in the beginning the pain was light. I didn’t complain about it until it was getting more extreme.”[28]
[28]Transcript 39, Lines 26-29
128 The medical records of Dr Luu confirmed the plaintiff reported neck pain in September 2008, at the second consultation. The plaintiff’s evidence was that Dr Luu was unaware that her attendance was in relation to a work claim, he had only allowed a limited time for the first consultation, and requested her to return for a further consultation. An x-ray of the cervical spine was performed in September 2008 and a CT scan on 22 October 2008. Mr Luu referred the plaintiff to Mr Lo in relation to neck pain in October 2008.
129 Of those medical witnesses who recorded neck pain, all accepted it was work-related, other than Mr Simm, who only examined the plaintiff on one occasion in 2012.
130 Further, in June 2012, the Medical Panel accepted the plaintiff was suffering from persistent neck and upper back dysfunction without radiculopathy, as a consequence of an aggravation of cervical and thoracic degenerative disc disease and a very mild aggravation of chondromalacia patella, and from a Major Depressive Disorder with paranoid and somatisation symptoms relevant to the claimed injury.
131 In addition, in a letter dated 17 February 2010, the defendant’s insurer informed the plaintiff that it received her Claim for Compensation pursuant to s98C of the Act and that it accepted liability for the injury to the neck. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor:[29]
“… such an 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.”
[29][2006] VSCA 171
132 No such explanation has been forthcoming in the present case.
133 Based on all the evidence, I accept the plaintiff suffered a compensable injury to her neck/cervical spine in the fall at work on 20 June 2008.
Disentangling
134 Counsel for the defendant submitted that disentanglement was an issue in this proceeding.
135 In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis,[30] Maxwell P said, at paragraph [9]:
[30][2007] VSCA 46
“For the assistance of judges, the applicable principles may be summarised as follows:
(1) Where an applicant for leave under s 134AB(16)(b) relies on physical injury — ‘permanent serious impairment or loss of a body function’ — the court in assessing the pain and suffering consequences must exclude ‘the psychological or psychiatric consequences’ of the injury: s 134AB(38)(h).
(2) Accordingly, so far as the evidence allows, the court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3) The court must therefore exclude any pain and suffering consequences which result from or are a manifestation of:
• any recognised psychiatric condition (for example depression, adjustment disorder);
• chronic pain syndrome or disorder;
• functional overlay;
• exaggeration of symptoms, whether conscious or unconscious; or
• any other aspect of the injured person’s psychological response to the physical injury.
(4) Where the court is unable to ‘disentangle’ the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion (‘more than significant or marked, and … at least very considerable’: s 134AB(38)(c)).
(5) For the assistance of the court in deciding such matters, any medical witness who is of the opinion that there are both organic and non-organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.
(6) The reasoning in Richards v Wylie has no application to proceedings under s 134AB.”
136 Accordingly, I must be satisfied, on the balance of probabilities, that the organically-based consequences of the neck injury alone satisfy the statutory criterion.
137 In determining the plaintiff’s impairment, I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the more recent medical evidence of Dr Luu, Mr Lo, Mr D’Urso and Mr Simm.
138 Of those witnesses, I place greater weight on the majority view. The majority, being Dr Luu, Mr Lo and Mr D’Urso, accepted the plaintiff had no current capacity for work. Mr Lo and Mr D’Urso, neurosurgeons, said the plaintiff had no capacity now or into the foreseeable future. Dr Luu adopted the view of Mr Lo, the treating neurosurgeon. Both Mr D’Urso and Mr Lo confined their views to the organic injury, being the cervical spine. I accept the view of the majority; that is, the plaintiff has no capacity for work, both pre-injury work or suitable work, now or into the foreseeable future based on the neck injury/cervical spine alone. Mr Simm was in the minority. Mr Simm said the plaintiff had a capacity for pre-injury and suitable work. Mr Simm saw the plaintiff on one occasion, as distinct from Dr Luu and Mr Lo, treaters, who had seen the plaintiff on numerous occasions.
139 The plaintiff’s evidence is that she would like to return to work. She said that from a young age, she worked hard and enjoyed being financially independent. All her jobs required her to be physically fit and on her feet all day. In cross-examination, the plaintiff agreed that her writing and maths skills were good, and she was interested in obtaining clerical and cashier-type work which she thought might be within her capacity. She had applied for cashier jobs at local restaurants, but was offered work in the kitchen. This required her to carry pots, which is work that she cannot do at home in her own kitchen without incurring severe pain. She applied for jobs as an IGA cashier, but was told she would be required to stack shelves. She said she cannot do manual work which requires her to use her physicality. She was asked about a vocational assessment report in October 2009 and whether she could return to work, working five days a week, eight hours a day on limited lifting. The plaintiff said:
“I mean, like, if I just ignore the pain then I probably can do anything. Like, I can do it if I just ignore the fact that I would suffer quite extreme pain.”[31]
[31]Transcript 31, Lines 24-27
140 The plaintiff’s evidence demonstrates her genuine desire to work. However, her eager attitude does not translate into a capacity to work. I prefer the evidence that I have accepted from medical witnesses as to the plaintiff’s loss of work capacity.
141 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[32]
[32]Advanced Wire & Cable Pty Ltd v Abdulle (supra)
142 Given the medical evidence, I am satisfied the plaintiff cannot return to work. The plaintiff is aged forty-seven years. She had been working from a young age. Since arriving in Australia, she had consistently been employed in manual work, being the only work she could obtain in Australia. The plaintiff said she enjoyed being financially independent. She owns her own home, and is having difficulty paying the mortgage. She told the Court that she would like to work. I formed the view that she was genuine in her desire to work. It was consistent with her attempts to return to work following the injury. I accept that her inability to return to work represents a significant loss to this plaintiff. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
143 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
144 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
145 Given the medical evidence of Mr Lo, Mr D’Urso and Dr Luu that the plaintiff has no capacity for work currently, or into the foreseeable future, as a result of her neck injury, I find the plaintiff is effectively out of the workforce for any employment as a result of the neck impairment injury. Accordingly, there is no need to go into an analysis of wage rates, as I do not accept that she has any residual capacity, given the medical evidence.
146 The plaintiff’s evidence was that she was interviewed by an employment agency called WorkFocus in October 2009. The plaintiff said the vocational assessment by WorkFocus did not result in any employment, nor have there been attempts to gain employment for her by the vocational assessment agency. She has not been put through any other vocational assessment, nor has she been offered any rehabilitation. No current medical witness suggested that the plaintiff would benefit from rehabilitation.
147 Given the plaintiff’s evidence in respect to retraining and rehabilitation, I accept that the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
148 In view of the matters I have described, the plaintiff has discharged the onus with respect to her neck impairment injury regarding her loss of earning capacity. In view of my findings in respect to the physical injury, it is not necessary for me to consider the plaintiff’s claim under paragraph (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
149 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
150 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of her employment with the defendant.
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