Tuglu v Crown Melbourne Limited
[2013] VCC 2001
•16 December 2013
| 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-12-06443
| EMINE TUGLU | Plaintiff |
| v | |
| CROWN MELBOURNE LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2013 | |
DATE OF JUDGMENT: | 16 December 2013 | |
CASE MAY BE CITED AS: | Tuglu v Crown Melbourne Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2001 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the neck – loss of earning capacity and pain and suffering – causation
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Rattray | Zaparas Lawyers |
| For the Defendant | Mr P B Jens | Herbert Geer |
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, particularly from 2007, with the defendant.
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) 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.”
5 The body function relied upon in this application is injury to the neck, with referred pain into the shoulders.
6 The plaintiff relied upon two affidavits, sworn 3 September 2012 and 20 October 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or her evidence; however, I will refer to the plaintiff’s relevant evidence in my reasoning. 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
7 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
8 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]Section134AB(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]
(c) “the consequences” to the plaintiff of her impairments to the neck in relation to “pain and suffering” or “loss of earning capacity” 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]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section 134AB(19B) 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;[6]
[6]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,[7] and
(c) that even with rehabilitation and retraining she will still sustain a loss of 40 per cent or more.[8]
[7]Section 134AB(38)(e)(ii) of the Act
[8]Section 134AB(38)(a) of the Act
10 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.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 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.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“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. … .”[11]
[10][2009] VSCA 181
[11](supra) at paragraph [42]
13 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”.
14 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[12]
(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.[13]
[12]Section 134AB(38)(j) of the Act
[13] 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
15 Counsel for the defendant informed the Court that there were two issues. First, there is an issue as to causation. The plaintiff is unreliable in the history she has given to some of the medical witnesses. Accordingly, those reports cannot be relied upon. Further, some of the medical witnesses who first commenced treating the plaintiff had no link to a work injury.
16 Secondly, this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Investigations
17 On 18 May 2010, a whole body bone scan of both hands and wrists proved normal.
18 On 23 August 2010, a CT scan of the cervical spine concluded:
“At C5-6, left-sided unconvertebral (sic) osteophytes cause a mild left neuroforaminal stenosis for the exiting left C6 nerve root. … .
… Otherwise normal examination.”[14]
[14]Plaintiff’s Court Book (“PCB”) 66
19 On 6 October 2010, an MRI scan of the spine concluded:
“… No canal stenosis is seen.
Moderate to severe right C5-C6 neural foramina narrowing secondary to posterolateral disc bulge.
Moderate left C5-C6 neural foramina narrowing secondary to posterolateral osteophyte – disc complex protrusion.”[15]
[15]PCB 67
20 On 21 August 2012, an MRI scan of the cervical spine showed:
“… C5/6 unconvertebral (sic) disc osteophyte protruding complex is producing moderate to severe bilateral foraminal narrowings where there (sic) C6 nerve root exits. … .”[16]
[16]PCB 68
The Plaintiff’s medical evidence
Springvale South Medical Centre – Dr Chi-Lye Tang
21 In December 2010, Dr Tang, general practitioner, confirmed that the plaintiff first presented at his clinic on 9 August 2010 complaining of pain in both hands and wrists for approximately one year. The plaintiff had reported she worked extensively as a waitress. Dr Tang diagnosed bilateral carpal tunnel syndrome, worse on the left side than the right. He said she suffered from radicular pain affecting both arms, resulting from C5-6 disc bulge in her neck causing bilateral C5-6 foraminal stenosis. It was his view that the carpal tunnel syndrome is likely to have been significantly caused by the heavy lifting, prolonged hours and intensive use of both hands in the plaintiff’s waitressing work. Further, the C5-6 disc injury may have also been contributed to by the work.
22 In October 2013, Dr Tang said it was possible that her waitressing job had caused her injuries. He said the plaintiff was unfit for any duties, as she is in too much pain with associated disability.
Dr Adel Farag – Mariner Medical Centre
23 In February 2011, Dr Farag reported to the plaintiff’s solicitor that the plaintiff had been a patient since May 1996; that she was consulted for many medical conditions, none of which was of any significant serious nature.
24 In May 2009, the plaintiff presented complaining of pain in both hands for one year and was referred to have plain x‑ray and nerve conduction studies, which were normal. The plaintiff was prescribed anti-inflammatories and analgesics, and referred to physiotherapy and a sports physician. The plaintiff showed reasonable improvement in her arm. When last seen in December 2010, the plaintiff said she suffered pain occasionally after any repetitive work.
25 Dr Farag diagnosed the plaintiff’s condition as chronic musclitis and tendonitis. The condition was not necessarily attributable to her employment as all investigations performed show no abnormalities that could be aggravated by excessive or recurrent arms and wrists strain. The plaintiff’s prognosis in December 2010 was good, provided the plaintiff was compliant with medication and physiotherapy courses.
Dr Janaka Seneviratne
26 In a report dated August 2013, Dr Seneviratne, neurologist, confirmed that he first reviewed the plaintiff in September 2010 on referral from her general practitioner in respect of bilateral hand pain and paresthesia. He had not reviewed the plaintiff since February 2011. The plaintiff reported she had worked quite extensively as a waitress using her hands, that she had suffered the symptoms for approximately twelve months. She complained of some neck pain and some radicular-like symptoms but no significant weakness of the hands. It was his clinical impression that the plaintiff’s symptoms were related to a combination of musculoskeletal/soft tissue injury of the hands and wrists, as well as minor cervical radiculopathies. He recommended gentle physiotherapy measures and to continue with her current neuropathic medication. He said it was possible the symptoms she was experiencing in the neck and arm region were related to the work described. However, since most of the symptoms were soft tissue injuries in origin, the likelihood was that she should continue to improve with conservative measures and also reducing her workload for a significant period of time.
27 In February 2011, when he reviewed the plaintiff, she reported that the symptoms had improved and said her hand symptoms were intermittent. He recommended she be reviewed by a musculoskeletal physiotherapist, as well as a musculoskeletal physician for ongoing management of her problems.
Dr Steven Jensen
28 Dr Jensen, musculoskeletal pain medicine specialist, treated the plaintiff on referral from Dr Seneviratne. Dr Jensen provided reports dated September and October 2011, and September 2012. Dr Jensen reported that the plaintiff said her symptoms started spontaneously in 2008 when working as a waitress at Crown Casino. She had worked there over ten years. She reported difficulty holding trays of drinks, resulting in pain around her wrists, which spread to the ulnar four fingers. She went on to develop associated headaches and neck stiffness when working, which would last two to three days after her shift. She ceased work in 2009 because she had “had enough”. She reported that she worked between 20 to 30 hours per week most weeks. In 2012, he said the plaintiff’s main ongoing pain was that of left mechanical cervical spine dysfunction with referred pain to her left shoulder girdle and mechanical left wrist dysfunction. He said her headaches may have been cervicogenic or myofascial headaches secondary to her neck problem. He said her pain distribution through her shoulder girdle was not consistent with intrinsic shoulder pathology but is consistent with a lower cervical spine referred pain pattern, most typically C5-6.
29 He conceded that the plaintiff probably does not have a capacity for her pre-injury employment that involved heavy lifting type activities. He said she had a capacity for lighter work that involved minimalistion of any heavy lifting, pushing or pulling tasks, prolonged static postures (particularly head down positions), or of any rapid repetitive manual work, particularly work involving forceful gripping, pushing or pulling with either hand. He believed her prognosis was poor.
Dr Tim March
30 In March 2011, Dr March reported that he had seen the plaintiff on referral from her general practitioner in May 2010. Dr March reported he obtained a history from the plaintiff that she had suffered painful arms for approximately a year, especially her wrist and fingers (left more than right). The pain was worse after activity; for example, shopping, chopping vegetables and washing. She complained of numbness of her fingers, especially from the thumb to ring finger, but a nerve condition study was deemed normal. Plain x‑rays were also normal. Dr March said he had no history of an injury either at work or at home. The plaintiff reported that her arm pains were worse after activities such as chopping and washing.
31 Dr March diagnosed some capsulitis within the left wrist joint which was based on this being the most symptomatic area of her pain. He said that she responded to cortisone into the left wrist for at least two weeks. He did not have any history connecting her problem with an injury at work, or indeed with her employment.
Dr Richard Sullivan
32 In May 2012, Dr Sullivan, interventional pain specialist, reported that he had seen the plaintiff on referral from Professor Bittar, neurosurgeon. The plaintiff provided a history of posterior cervical pain and bilateral brachialgia, worse on the left, and cervicogenic headaches. Her symptoms began in a gradual fashion, starting in 2008 whilst working as a waitress at Crown Casino. She developed a combination of both left wrist and hand pain. In early 2009, she started to develop posterior cervical pain aggravated by her work activities. In July 2009, she ceased work because of ongoing pain aggravation.
33 Dr Sullivan diagnosed a chronic pain condition; chronic posterior cervical pain; chronic bilateral brachialgia, worse on the left; chronic occipital headache, (likely cervicogenic). It was his opinion that the plaintiff’s work as a waitress and the repetitive aggravation of her pain and symptoms has resulted in her current presentation.
Professor Richard Bittar
34 In October 2013, Professor Bittar, neurosurgeon, treated the plaintiff on referral from her general practitioner. He had seen the plaintiff in July 2012, August 2012 and October 2013. The plaintiff complained of neck pain and left brachialgia. She reported that her symptoms occurred in a gradual fashion at work in 2008 and her condition deteriorated until July 2009, when she ceased work. Her pain originally came on during the activity of holding trays laden with glasses, using her left arm. In order to balance, she tilted her head to the left and maintained this position for significant periods of time.
35 In October 2013, Professor Bittar examined the plaintiff at the request of the plaintiff’s solicitors. Professor Bittar said the plaintiff suffered from an aggravation of cervical spondylosis. It was his view that the plaintiff’s work and the repetitive aggravation of her pain and symptoms has resulted in her current presentation. He said her prognosis is relatively unfavourable. She has suffered from very significant symptoms for several years, and has not been able to receive adequate treatment.
36 It was his opinion that she is likely to continue to suffer from significant pain and disability into the foreseeable future. She is unfit for her pre-injury employment. Taking into account her age, education, training and skills, as well as her work experience, she has no realistic capacity for alternative duties.
Mr Paul D’Urso
37 In June 2013, Mr D’Urso, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported that she commenced work at Crown Casino in December 1997. She was required to carry numerous plates in her hands and arms and by May 2008, she started to develop increasing pain. The pain developed in her neck and radiated down both arms, but particularly on the left side into the hands and wrists. Symptoms gradually worsened, such that she ceased employment in July 2009. Mr D’Urso said:
“It would appear likely that heavy repetitive physical activity performed as a caterer for Crown Casino over a period of ten years has contributed to progression of degenerative disc disease at C5-6 motion segment and aggravated underlying degenerative condition from which Emine suffers.”
38 Mr D’Urso diagnosed spondylosis at the C5-6 motion segment with retrolisthesis and foraminal C6 nerve root compression.
39 He said a C5-6 anterior cervical discectomy and instrumented interbody fusion procedure would be an appropriate option for the plaintiff to deal with the advance degenerative change at this level and decompress the exiting C6 nerve root. He said she could manage her condition conservatively with medication, gentle massage, acupuncture and physical therapy. He thought there may be a degree of degenerative progression with time, which is difficult to predict. He said she did not the have capacity to return to pre-injury employment or any type of employment at the present time or into the foreseeable future.
Mr David Brownbill
40 In September 2013, Mr Brownbill, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Brownbill obtained a history that in 1998, she commenced with the defendant in the banqueting area, setting up venues, waitressing, cleaning, serving beverages and attending the cloakroom. There was frequent heavy lifting and bending and twisting. She reported “it was extremely heavy physical work”. She worked between 25 and 40 hours a week.
41 The plaintiff reported that in 2008, she noted gradual onset of pain in the wrist and fingers of both hands. In 2009, she noted the onset of stiffness in the back of the neck associated with headaches. She left work in 2009 “just to have a break” and visit her parents in Turkey.
42 Dr Brownbill said aggravation of the cervical spine degenerative changes is consistent with her described waitressing activities. He was unable to explain, from a neurosurgical point of view, progressive increase of her neck pain and headaches following the cessation of her employment in 2009. Nor was he able to explain the ongoing increase of those symptoms for some four years following the cessation of work. He said it would be prudent for her to avoid heavy lifting, forced cervical spine mobility or holding her neck in a fixed position. He said she was capable of a graduated return to employment that avoided those actions.
Dr David Middleton
43 In October 2013, Dr Middleton, occupational health and rehabilitation consultant, examined the plaintiff at the request of the plaintiff’s solicitor.
44 The plaintiff reported to Dr Middleton that she commenced employment with the defendant in 1998 and worked on a contract basis for approximately eighteen months when she was made a permanent full-time employee of Crown. She took extended leave for family reasons but returned to work for the defendant in 2008. Within six days of work she experienced sore hands and wrists. Initially she sought treatment privately and provided normal sick leave certificates for a couple of days off. She was prescribed medication of Celebrex, which she found of little assistance. She ceased work in July 2009.
45 The plaintiff reported current symptoms of pain and stiffness in the neck, the base of the skull, extending into the left and right-hand side of the neck, trapezius and scapular areas. She described the pain as a pressure pain which varies in severity and after time will precipitate a thumping headache in the form of migraine/vascular type headache. She currently takes Panadeine Forte on an “as-needs” basis.
46 Dr Middleton said the plaintiff suffered an aggravation of previously asymptomatic age-related degenerative disease of the cervical spine, particularly at the C5-6 level, resulting in the development of discogenic pain down both arms, greater on the left than the right, and the development of cervicogenic occipital headaches.
47 Dr Middleton said the plaintiff was no longer fit to undertake her pre-injury employment, either on a full or part-time basis as this would result in further aggravation of the underlying condition. He said the plaintiff had a residual level of physical fitness that would restrict her to non-manual work which would require her to avoid repetitive or prolonged use of the cervical spine and avoidance of extreme movements of the cervical spine. He imposed restrictions. He said the plaintiff needed to avoid work at or above shoulder height; manual handling at reach; forceful or constant pushing and pulling where the maximum effective weight or force to be applied is restricted to 5 kilograms on an occasional basis and 2.5 kilograms in activities relating to the upper limbs.
48 He said that her attendance at work should be restricted to part-time hours, three to four hours in any one day and preferably non-consecutive days in any one week. He said she was limited to a maximum attendance time at work to 15 hours per week. He said her skills were limited and entirely reliant upon a good physical capacity. There would be need for adequate re-education to enable her to achieve employment in suitable duties. He thought she should continue with her current treatment and medication. He believed she would benefit from a multidisciplinary pain management program. He said her prognosis is guarded.
The Defendant’s medical reports
Dr Peter Jasek
49 In October 2010, Dr Jasek, musculo-skeletal and occupational health consultant, examined the plaintiff. The plaintiff reported she could not remember when her problems started but commenced seeing her general practitioner in mid-2009 because of the pain in her hands, wrists and fingers. She reported that she had pain when she worked but did not have pains on her days off. She reported that she noticed some pain in her neck when she went to Turkey in September 2009, which was not there before. In response to limitations of activities, she said she used to love gardening and go bushwalking, but has no time for it now. She stopped her hobby of sewing years ago because she did not have enough time.
50 Dr Jasek said the plaintiff was suffering mild symptoms of bilateral constitutional carpal tunnel syndrome not relevant to her employment. She was also suffering from a muscular tenderness of her upper trapezius and levitator scapular muscles, which is not relevant to her employment because it commenced after she left work. He said her treatment was irrelevant as her medical conditions are unrelated to her work.
Dr David Barton
51 In June 2011, Dr Barton, occupational physician, examined the plaintiff at the request of the defendant’s insurer. The plaintiff reported hand and wrist symptoms related to holding trays at work, which occurred in mid-2008, and within a year she had resigned from her employment. She had a few days off work. She had been off work for two years and reported no real improvement in her condition.
52 Dr Barton said the MRI scan of the neck showed some disc bulges in the lower cervical region. He did not think these findings were clinically relevant as the plaintiff described no particular symptoms consistent with a disc problem. He said work would not be the cause of these problems as her initial problems appeared more to do with her hand and wrist than any particular neck problem. The neck problem came on later and after she ceased work. He said she may have some mild musculoskeletal discomfort as a result of her general work activities but such a condition would be expected to settle very quickly once she ceased work. It was his view that the plaintiff did not have any condition of the hands, wrists, neck or shoulder related to her employment.
Mr Michael Dooley
53 In July 2011, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant. When examined, the plaintiff complained of constant pain and stiffness of her neck and constant pain in both wrists, with pain from her wrists radiating proximately into the forearms. Mr Dooley said the plaintiff suffered from naturally occurring degenerative disc disease of the mid cervical spine. He said, given the history, it is likely that, at times, the plaintiff aggravated this underlying condition. He said the carpal tunnel syndrome is naturally occurring and most likely a degenerative condition. He was aware the plaintiff had ceased work and despite this, she described constant ongoing pain affecting her neck, upper limbs and wrists.
54 It was his view that the constancy and intensity of her ongoing pain are out of proportion to any soft tissue injury sustained and to her underlying naturally occurring condition. He said one would have expected a substantial improvement in her neck symptoms after the cessation of her waitressing type work.
Mr Ian R Jones
55 In April 2013, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors. The plaintiff reported that she first experienced symptoms in late 2008 but could not recall the exact circumstances of the onset of symptoms and said these were in accord with “doctors’ records”. She said that in 2008, when she recommenced with Crown, she was required to stand with a tray of drinks for periods between half-an-hour and one-and-a-half hours, and at times the weight was in excess of 3 kilograms. Her first symptoms were in her wrists and hands, particularly both thumbs. She reported that headaches and neck pain commenced in about 2009. There was no specific injury, and in July 2009, she was tired, getting too old for the job and wanted a rest, and ceased work and went on a family holiday to visit her parents in Turkey. She was away for eight to nine months and did not receive any treatment in Turkey. In 2009, she sought a second opinion and her symptoms at that time were described as stiff neck and headaches.
56 Mr Jones said he was unable to establish any particular injury during the course of the plaintiff’s intermittent employment with the defendant between 1998 and 2008. The work the plaintiff was undertaking in the period between 2008 and July 2009 had the capacity to exacerbate her neck symptoms and be the basis of some of her neck pain and shoulder girdle complaints. He said from the MRI scan showed the plaintiff had been developing degenerative disc disease in the cervical spine for a number of years prior to the onset of her symptoms. In the absence of any history of injury, he concluded that these are constitutional in aetiology. He said the plaintiff had a permanent incapacity for heavy physical employment involving her neck and upper arms. He said the plaintiff would be able to undertake light packaging or process work where there was no requirement for extremes of neck movement or to engage in any heavy pulling or pushing.
Vocational assessments
57 In August 2013, Ms Leonie Schneider of Australian Vocational Link Pty Ltd provided a vocational assessment at the request of the plaintiff’s solicitors. Ms Schneider interviewed the plaintiff, was provided with medical reports and, in agreement with the prevailing medical opinions, said the plaintiff had no current work capacity for her pre-injury employment as a permanent casual waitress with the defendant. She said the plaintiff should avoid all manual handling tasks and all rapid and repetitive activities. She said the plaintiff was computer illiterate and, because of her pain state, sleep disturbance and her age, there was no possibility of her returning to suitable alternate employment for which she is qualified, trained, experienced and/or skilled. She said the plaintiff was a poor candidate for vocational training due to her age, the implications of her injury and her lack of computer skills in the workplace. She said the plaintiff had a perception of invalidity. She said the plaintiff is becoming deskilled and deconditioned physically, psychologically and emotionally for the workforce. She concluded that the plaintiff is indefinitely unfit for work and essentially unemployable.
58 In September 2013, CoWork Pty Ltd (“CoWork”) interviewed the plaintiff at the request of the defendant’s solicitor to undertake a vocational assessment and identify suitable employment. A report was prepared by CoWork dated 28 October 2013. Ms Bryant of CoWork accepted the medical evidence which supported the plaintiff’s inability to return to her pre-injury employment. Based on the reports of Dr Jensen dated June 2012, the report of Mr Jones of April 2013 and the report of the occupational physician, Dr D Barton, of May 2013, Ms Bryant concluded the plaintiff had a capacity for alternative employment. Ms Bryant suggested the plaintiff consider the following occupations, as she contemplates her vocational future:
·OSHC childcare worker
·Retail sales assistant
·Pharmacy sales assistant
·Packer (light).
Credit
59 The plaintiff, aged forty-seven, was Turkish and came to Australia aged six. She attended school until Year 10 and initially obtained employment as a receptionist and performed clerical work. She commenced work with the defendant in 1997 and worked until 2000. She recommenced work with the defendant from 2007, waitressing. The plaintiff answered questions as best she could, given her limited education. Overall, she was consistent with reporting to the doctors she saw the nature of her complaints.
60 She made concessions. She agreed initially she may not have told doctors that her injuries were work related. She said it was not a one-off injury; it was just something that she noticed day by day. She agreed that she did not relate her injuries to her work at the time. She said she told the doctors the type of work she performed and that she needed a certificate for work. When she went to work, she mentioned her sore hands to her supervisor, John. She had a couple of days off work.[17] She said at the time she saw Dr March in March 2011, she was not thinking of submitting a WorkCover claim.
[17]Transcript 28
61 In re-examination, the plaintiff said that after a shift when she went home, the stiffness in the neck and shoulders would get better. She said the stiffness in her neck and the headaches were there but she did not think they were associated with the pain in her arms.
62 Overall, I thought the plaintiff was a witness of truth.
Analysis of the Evidence
63 Counsel for the defendant informed me that causation was an issue. First, a number of the complaints the plaintiff made to the medical witnesses do not relate to the body function relied upon in this application; namely, the neck, with referred pain into the shoulders. In particular, initially the plaintiff made complaints of pain in the wrists. I accept that the plaintiff reported to a number of the doctors whom she saw painful wrists. A number of the doctors discussed the plaintiff’s wrists. As the wrists do not form part of the plaintiff’s claim, I exclude from my consideration what the plaintiff and the doctors said about the wrists.
64 Secondly, the history of the plaintiff’s employment with the defendant provided to some of the doctors; namely, Mr Jensen, Mr Brownbill and Mr D’Urso, is different to what in fact occurred. As the doctors have based their reports on the history provided by the plaintiff, which is inaccurate, their opinions cannot be relied upon.
65 Mr Jensen, Mr Brownbill and Mr D’Urso had a history that the plaintiff worked for the defendant from the late 1990s through to July 2009, working for a period of ten years. The plaintiff’s evidence was that she worked form the late 1990s to 2001 for the defendant on a permanent part-time basis. Between 2001 and the end of 2007, she was not employed by the defendant. She returned to work with the defendant at the beginning of 2008 and continued working until July 2009. In the latter work period, the plaintiff was averaging 20 hours per week. I accept that the above doctors based their opinions on a history that is not in accordance with the facts of this case. Accordingly, it is not appropriate for me to rely on the views expressed by Mr Jensen, Mr D’Urso and Mr Brownbill. All based their opinions on the plaintiff having worked with the defendant for a period of ten years.
66 The majority of the medical witnesses accepted that the plaintiff’s injury was work related. Those who formed the majority view were Dr Seneviratne, Dr Tang, Dr Sullivan, Professor Bittar, Mr Dooley and Dr Middleton. Dr Jasek and Dr Barton formed the minority view.
67 Based on the majority of the medical evidence, I am satisfied that the plaintiff suffered a compensable injury in the course of her employment with the defendant. Dr Seneviratne said that it was possible the symptoms the plaintiff was experiencing in her neck were related to the work described. Dr Tang said the plaintiff suffered from radicular pain affecting both arms, resulting from C5-6 disc bulge in her neck causing bilateral C5-6 foraminal stenosis. He said the C5-6 disc injury may have also been contributed to by the work.
68 Dr Sullivan said in early 2009, the plaintiff developed posterior cervical pain aggravated by her work activities, which initially radiated into the shoulder on the left, then radiated into the occiput and became associated with cervicogenic headache. He concluded that the plaintiff’s work as a waitress and the repetitive pain and symptoms has resulted in her current presentation of her cervical spine condition which he diagnosed as an aggravation of cervical spondylosis.
69 Professor Bittar said the plaintiff’s employment in 2008 and 2009 has been a significant contributing factor to her cervical spine condition. Mr Dooley said the plaintiff suffered from naturally occurring degenerative disc disease of the mid cervical spine and that given her history, it was likely that at times the plaintiff aggravated the underlying condition. Mr Jones thought the plaintiff had been developing degenerative disc disease in the cervical spine and that the work she was performing between 2008 and July 2009 had the capacity to exacerbate her neck symptoms. Dr Middleton said the work the plaintiff performed with the defendant aggravated underlying asymptomatic age-related condition of the cervical spine causing it to become symptomatic.
70 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 most up to date medical evidence of Dr Tang, Professor Bittar, Dr Middleton and Mr Jones. All said the plaintiff could not return to pre-injury employment, and Dr Tang said she was unfit for any duties.
Aggravation
71 The medical evidence of Professor Bittar, Mr Dooley and Dr Middleton is that the plaintiff suffered an aggravation of a naturally occurring degenerative disc disease.
72 The Court must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting was “serious”. In Petkovski v Galletti,[18] the Full Court said that a comparison must be made of the condition of the applicant immediately before the accident with her condition thereafter and an assessment made as to the extent of the additional impairment.
[18][1994] 1 VR 436
73 I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after 2008 was “serious”.[19]
[19]Supra
74 There was no medical evidence that prior to 2008, the plaintiff was complaining of neck pain. I accept that prior to 2008, the plaintiff was symptom free in respect to the neck. I accept that the work the plaintiff performed between 2008 and July 2009 aggravated the underlying asymptomatic age-related condition of the cervical spine, causing it to become symptomatic.
75 The plaintiff’s evidence was that she ceased work in July 2009 as she –
“… had too much on her plate and did not want to work any more as she had had enough and was struggling physically with the heaviness of the work”.[20]
[20]PCB 45 – Medical report of Dr S Jensen
76 The plaintiff reported to Dr Sullivan that she ceased working because of ongoing pain aggravation.[21]
[21]PCB 56.1
77 Professor Bittar reported that her condition deteriorated until July 2009, when she ceased work.[22]
[22]PCB 59
78 Dr Sullivan reported that the plaintiff ceased work in July 2009 because of ongoing pain aggravation.[23]
[23]PCB 62
79 Mr Brownbill reported that in 2009, the plaintiff noted the onset of stiffness in the back of the neck associated with headaches, which symptoms gradually increased. In 2009, she left work “just to have a break” and visited her parents in Turkey. She has not returned to any work since then.
80 Dr Jasek reported that the plaintiff ceased work in 2009 and does not want to work any more.
81 Dr Barton reported that the plaintiff ceased work in July 2009 as she wanted to have a rest and go overseas.
82 Mr Jones reported that the plaintiff –
“… decided in July of 2009 that she was tired, getting too old for the job and wanted a rest. She ceased work and went on a family holiday to visit her parents in Turkey.”
83 I accept the evidence is that the plaintiff ceased work in July 2009 because of the nature of the injury, and she was travelling to Turkey for a family holiday.
84 The current medical evidence expressed by the majority of medical witnesses was that the plaintiff has no capacity for pre-injury employment, which is likely to continue for the foreseeable future.
85 In October 2013, Professor Bittar thought there was no realistic capacity for alternate work. Mr Jones thought the plaintiff could perform light packaging or processing work where there was no requirement for extremes of neck movement or to engage in any heavy pulling or pushing.
86 Dr Middleton said the plaintiff had a residual level of physical fitness that restricts her to non-manual work which would require her to avoid repetitive or prolonged use of the cervical spine and avoid extreme movements of the cervical spine. He said the plaintiff needed to avoid work at or above shoulder height; manual handling at reach; forceful or constant pushing and pulling where the maximum effective weight or force to be applied is restricted to 5 kilograms on an occasional basis and 2.5 kilograms in activities related to the upper limbs. He believed that her attendance at work should be restricted to part-time hours, 3 to 4 hours in any one day, preferably non-consecutive days in any one week, and a maximum attendance time at work to be limited to 15 hours per week.
87 I accept the medical evidence is that the plaintiff cannot return to pre-injury duties because of her neck injury. Dr Middleton and Mr Jones said the plaintiff could perform suitable work with restrictions.
88 In October 2013, CoWork provided a vocational assessment and suggested that the plaintiff consider the following occupations:
·OSHC childcare worker
·Retail sales assistant
·Female sales assistant
·Packer (light).
89 None of those occupations were put to the plaintiff. The jobs identified are work for which the plaintiff has no qualifications.
90 As opposed to that report, Ms Leonie Schneider, Australian Vocational Link Pty Ltd, concluded that the plaintiff had no current capacity for her pre-injury employment or for suitable alternative work. It was her view that the plaintiff has, and will continue indefinitely to have, no realistic prospect of gaining employment in the open labour market. She said there are a number of restrictions imposed, should the plaintiff ever return to employment, which limit her to “sedentary forms of work at best”. She is limited to lifting weights no greater than 2.5 to 3 kilograms; she is to avoid prolonged sitting; and she is unable to flex in the normal manner using her neck, shoulders, arms and hands. In short, she is to avoid all manual handling tasks and all rapid and repetitive activities. In addition, she is computer illiterate, suffers pain and sleep disturbance, and her age of forty-seven years makes it impossible for her to return to suitable alternative employment for which she is qualified, trained, experienced and/or skilled.
91 Ms Schneider said the plaintiff was a poor candidate for vocational retraining, primarily due to her age, the implications of her injury and her lack of computer skills. I accept that opinion. Accordingly, I accept that vocational retraining will not assist the plaintiff.
92 Given the medical evidence, and the vocational evidence, in particular the report from Ms Schneider, and having observed the plaintiff and her lack of sophistication, I am satisfied that the plaintiff cannot return to work. She told the Court that she would like to work. I accept that her inability to return to work represents a significant loss to the plaintiff.
93 Given the length of time the injury has persisted and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent.
94 I am satisfied that 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.
95 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.
96 Given the medical evidence and that the plaintiff’s injury has continued since 2008, I find that the plaintiff is effectively out of the workforce for any suitable employment as a result of the impairment to the neck and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates as I do not accept that she has any residual capacity when the medical restrictions placed on her by the medical witnesses are looked at, together with the vocational report of Ms Schneider, in the context of the real commercial world.
97 I accept that the plaintiff would not be able to complete vocational retraining. There was no evidence that rehabilitation would assist the plaintiff. 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 or more.
98 In view of the matters I have described, the plaintiff has discharged the onus with respect to her impairment of the neck regarding her loss of earning capacity. I grant leave to the plaintiff to bring proceedings for pecuniary loss damages. In accordance with Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[24] it follows I also grant leave to bring proceedings for pain and suffering damages.
[24](Supra) at paragraph [63]
99 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 economic loss consequences as a result of her employment with the defendant.
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