Vasilciuc v Victorian WorkCover Authority
[2017] VCC 1857
•8 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01668
| AMALIA VASILCIUC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2017 | |
DATE OF JUDGMENT: | 8 December 2017 | |
CASE MAY BE CITED AS: | Vasilciuc v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1857 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the spine – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170; Dwyer v CalcoTimbers Pty Ltd;Meadows v Lichmore Pty Ltd [2013] VSCA 201; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Crennan QC with Mr T Storey | Zaparas Lawyers |
| For the Defendants | Mr C Harrison QC with Mr J Plunkett | Wisewould Mahoney |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Ensign Laboratories Pty Ltd (“the employer”) between 2010 and August 2015 (“the said period”).
2 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. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
3 The body function relied upon pursuant to clause (a) is the spine.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe” in applications pursuant to clause (c), having referred to the considerations mentioned in Turner v Love & Transport Accident Commission[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833 at 846 per Brooking JA
[2](1995) 21 MVR 314
10 In Mobilio,[3] Winneke P agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[4]
[3](supra) per Winneke P
[4]Phillips JA and Charles JA at 860-861 made similar comments
11 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
16 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. Her husband, Cezar swore an affidavit on 4 October 2017. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
17 The plaintiff is forty-three, having been born in Romania in 1974. There she finished Year 10. She did not work whilst in Romania. She married, and came to Australia with her husband at the end of 2002.
18 At the end of February 2003, the plaintiff found work with Petron Plastics, where she worked as a process worker for about four and a half years. In June 2008, she commenced employment with the employer in Mulgrave. She liked and enjoyed her work.[7]
[7]Transcript T “4”
19 The plaintiff worked for the employer processing and packaging a large number of liquids and gels. She confirmed the work process was set out in a number of photographs that were tendered by the defendant.[8] She put boxes onto pallets and wrapped them with shrink wrap.[9]
[8]T16
[9]T17
20 Prior to her injury, the plaintiff was earning about $776 gross per week.
Pre-injury health
21 The plaintiff explained that the left leg injury in Romania noted by Dr Coptil referred to a problem the plaintiff had with bunions.[10]
[10]T20; attendance on 18 July 2013
22 The plaintiff gave a somewhat confused answer when it was suggested to her that she had a high tolerance to medication as Dr Coptil reported.[11]
[11]T22
23 The plaintiff thought the muscle pains and aches reported by Dr Coptil in September 2010 related to an ovarian cyst.[12]
[12]T31
24 The plaintiff took Kalma for sleeping issues before her work injury. When shown a clinical note of 23 November 2010, she agreed that she had some anxiety associated with gynaecological problems, and Kalma was prescribed.[13] There was a further prescription for the same reason in November 2012.[14]
[13]T67
[14]T22
25 The plaintiff was cross examined about a twenty year history of classic migraine headaches with visual aura and three attacks a month that was recorded by Professor Drago. The plaintiff sometimes had migraines in Romania but not three times a month.[15] Her migraines did not involve visual auras. Visual auras were caused by medication she took after 2013. The plaintiff could not say exactly whether she had had migraines before she had any problems with her back.[16]
[15]T23
[16]T24
Onset of back pain
26 In about 2012, the plaintiff began to experience back pain when stacking boxes.
27 In her second affidavit sworn on 4 October 2017, the plaintiff gave further details of her work duties with the employer and the onset of back pain in November 2012. She attended Dr Coptil in November 2012 when the soreness was not subsiding.
28 The plaintiff continued to work, despite pain and discomfort, and often took sick days and used up her annual leave to cope with the ongoing pain. She confirmed that “mostly every day” she lifted boxes and felt pain.[17]
[17]T25
29 An incident report was completed by the plaintiff’s niece on the plaintiff’s instructions on 22 July 2014.[18] It was true that in that form a particular incident on 2 July 2014 was described. It was different to the one that Mr Jones had noted in his report which could have been another incident.[19]
[18]T26
[19]T28
30 The plaintiff really enjoyed her job but she started to have problems with it after the man who helped her do the lifting at the end of the line was no longer available.[20] She could not say exactly when that was, but it was in 2012 that she started to feel pain. She did not tell anyone about this before 2014 and ignored it.[21] She took painkillers and kept working.[22]
[20]T29
[21]T28
[22]T29
31 The plaintiff believed she injured her back as a result of the heavy repetitive work.
32 The plaintiff then went to Dr Coptil who advised her to see physiotherapist, Michael Melamed. Before 2014, the plaintiff never thought about WorkCover. It could be right that her back pain came on in 2013, as she told Dr Das in December 2014 that the pain started the previous year. She told Professor Drago that five years after she started working the back pain developed. This made the onset of pain 2013 probably.[23]
[23]T30
33 Dr Coptil was wrong when she described the plaintiff hurting her back at church on 19 November 2012. The plaintiff had had back pain before that, and when she stood up to pray on that occasion, she felt pain that was “so bad.”[24]
[24]T32, T63
34 The plaintiff then confirmed she thought the back pain actually started at the end of 2012.[25]
[25]T32
35 The plaintiff thought that Dr Coptil’s note of 18 November 2012 that Panadeine Forte, had been stopped and Endone prescribed, referred to medication she was taking for her back. She did not know about a left wrist problem noted at that time.[26]
[26]T33
36 The plaintiff’s back pain continued to worsen, and she saw Dr Jigau in about April 2013, as Dr Coptil was unavailable. The plaintiff was then concerned her back pain might suggest a kidney problem.
37 Dr Jigau arranged a lumbar CT scan in April 2013. Thereafter, the plaintiff continued to work with discomfort.
38 The plaintiff could probably remember seeing a Dr Semaan in May 2013. She could recall as he then noted, that Panadeine Forte did not work anymore and she was prescribed Endone. It could be right that he told her she needed a permit for this drug.[27]
[27]T39
39 Dr Coptil referred the plaintiff to physiotherapist, Mr Melamed, whom she saw in May 2013 and thereafter, about once or twice a fortnight until mid-2016, when funding was cut back.
40 In about late 2013, the plaintiff also started chiropractic treatment with Mr Morley, attending once or twice a month. The treatment over eight months did not really help.
41 As a result of ongoing mid and low back pain, and also some neck pain, Dr Coptil referred the plaintiff to Dr Johns, a rheumatologist, who arranged a cervical MRI scan in March 2014 and also a mid and low back MRI scan later that month. As a result of worsening back pain, the plaintiff was then taking up to a week at a time off work, virtually every month, during the middle of 2014.
42 The plaintiff agreed that this affidavit evidence was “a big exaggerate”. She did not know the exact amount of time she had off, but agreed it might have just been a couple of single days. It was suggested the records disclosed a total of eight and three quarter days off in eight months, but the plaintiff did not know if this was the case.[28]
[28]T34
43 The plaintiff was becoming quite upset about her ongoing back pain. Dr Coptil referred her to psychologist, Mr Salter and also Dr Feletar, another rheumatologist, on July 2014.
44 The plaintiff first saw Mr Salter on 16 July 2014 and thereafter weekly, for a few weeks, and then about every two or three weeks. She continues to do so.
45 The plaintiff’s back pain had become very bad and she wanted more help from Dr Coptil, but as Dr Coptil was the work doctor, she advised the plaintiff it would be better if she saw someone else.
46 The plaintiff could not remember in June 2014 discussing with Dr Coptil her long term issues about the amount of her pain medication.[29] She could recall talking to her about issues at work, and telling her that she was depressed and felt powerless. Dr Coptil advised the plaintiff to look for another job but the plaintiff asked what job Dr Cr Coptil thought she could do. She liked her job but she could not do the pallets. Dr Coptil did not say anything about the plaintiffs back.[30] The plaintiff continued working with medication.[31]
The plaintiff started to see Dr Jigau from about late July 2014.[32] The plaintiff was then put off work and encouraged to make a WorkCover claim, which she did.
[29]T38
[30]T57
[31]T64
[32]Dr Jigau’s clinical notes indicate the plaintiff first attended on 18 January 2013
47 The plaintiff was off work from 22 July 2014, and returned in October 2014 on light duties. Dr Jigau arranged a thoracic and lumbar spine MRI scan on 30 July 2014.
48 When the plaintiff returned to work, she was given supervisory duties, but shortly thereafter, she had to stop work because of an ovarian cyst, for which she was hospitalised. She was then off work until early 2015.
49 In November 2014, as the plaintiff forgot she had taken her Zoloft on a particular day, and whilst also taking Endone and Endep, she took another Zoloft tablet.[33] She was then admitted to Casey Hospital, where she stayed for about six hours. She was later referred to neurologist Professor Drago, who recommended a change in her medication.
[33]T35
50 The plaintiff agreed that when she saw Professor Drago she was on very heavy doses of medication which she continues to take, even though she has tried to cut down a lot, and doctors have warned her about her intake.[34] She might have discussed with him being intolerant of pain but she could not recall.[35]
[34]T36
[35]T35
51 Dr Jigau stopped prescribing Endone, and the plaintiff was instead given Tramadol and Lyrica, and put on Seroquel to help her sleep instead of Endep. However, the new medication did not agree with her, and she was soon put back on Endep, although as of November 2016, she had been put on Ativan.
52 The plaintiff returned to light duties in early 2015, working about four hours a day, five days a week, doing light packaging work. She had ongoing difficulties however with her back pain, and found it difficult to concentrate with her medication.
53 In August 2015, the plaintiff was advised by the employer that it had no more suitable duties for her.
54 Shortly thereafter, the plaintiff was involved in a car accident in August 2015, but did not believe she suffered any significant injury, and her back pain continued as before.
55 Dr Jigau arranged an MRI scan of the plaintiff’s mid and lower thoracic and lumbar spine in August 2016.
56 As of late 2016, the plaintiff was seeing Mr Salter every two to three weeks, and her physiotherapist every month. She was then taking 200-milligram Tramal slow release, one a day, and sometimes two; Lyrica 150-milligram in the morning and again in the evening for pain relief; Zoloft 100-milligram; and Ativan 25-milligram in the evening for anxiety, and sometimes during the day or night as needed.
57 The plaintiff’s worst pain was then in the middle of her back between the shoulder blades and in the low back. It was an ache which seemed to spread intermittently around to the ribs. Raising her arms seemed to increase the back pain, as did any twisting of her back. Sneezing could also cause pain. If she bent too far, or for too long, she experienced an increased ache in her back. She had to squat if she needed to get something from the ground.
58 Several times a week, the plaintiff had a sharp pain in the low back and experienced a shooting pain down the left leg, lasting from a few seconds to a few minutes. She was always conscious to move slowly and carefully to avoid any extra strain on her back and increased pain.
59 The plaintiff’s back pain usually increased if she was standing for more than about an hour, but it was better if she moved around. She could not stand still for very long, and wanted to keep altering her posture to try to ease the discomfort. She tried to avoid steps and slopes, running or jumping.
60 The plaintiff could not sit still for more than a few minutes without increased pain. It was better to have a support for her back. She put a pillow behind her back to try to keep it straight, and after sitting for about half an hour. Dr Jigau and Mr Melamed had shown her stretching exercises which seemed to help.
61 The plaintiff then wore a back brace several days a week but she tried not to wear it too much, as it weakened her back muscles. Her mid back pain seemed to spread up to her neck several times a week and she got a headache.
62 The plaintiff could drive, but needed to stop after 20 to 30 minutes because of increasing back pain, and she used a lumbar support pillow in the car. When she got out of the car, she tended to stretch her back, which seemed to help, doing the exercises she had been shown.
63 The plaintiff found it hard to get to sleep because of discomfort, and took Ativan several hours before she went to bed, which helped. She was more comfortable lying on her stomach, but wanted to alter the strain on her back at times, and moved to her side. She had to be careful when turning over not to twist her back. She woke several times every night because of back pain, and sometimes had to get up and have a drink. She found it hard to get back to sleep after waking, and sometimes needed a massage from her husband because her back pain was so bad.
64 Generally, since her injury, the plaintiff had felt more tense, and her middle and low back often felt tight, as if it had locked up. It was more difficult to relax, and she often felt anxious. She lay in bed feeling her heart beating quickly, as if it was in her throat, and she could have difficulty getting her breath.
65 Mark Salter had given the plaintiff exercises for what he explained were anxiety symptoms. She could usually bring her anxiety under control, but several times a month she had to take an extra Lorazepam. She could experience anxiety feelings day or night, more likely to come on in the presence of others, particularly those she did not know.
66 On a cruise to New Caledonia in May 2016, the plaintiff took her pills with her but forgot to take Diazepam and had a panic attack.[36] At that time, she felt like she was not good enough for anything and felt really down.[37]
[36]T59
[37]T44
67 The plaintiff has been on holidays to Queensland a number of times going to Hayman Island, Green Island and Heron Island.[38]
[38]T60-63
68 As of November 2016, the plaintiff had difficulty attending the Philadelphia Romanian Pentecostal Church in Narre Warren North, attending less frequently than pre-injury. She could not face the stress of having to answer questions about her health, and she was worried she might have an anxiety attack.
69 In the mornings, the plaintiff did not feel refreshed. Her back was stiff, and her whole body felt heavy. Her mouth was dry, and she found it hard to get up. Several days a week, she seemed to have no energy, and spent the day in her pyjamas. She just got a few things to eat and did the basic cleaning. Her husband and son were working.
70 If the plaintiff got up, she had a shower, which helped her back stiffness. She tended to wear loose-fitting clothes which were easy to put on. She dressed sitting down. She had difficulties putting on her bra, and often did not bother wearing one if at home.
71 The plaintiff usually cooked the evening meal, nothing special. She often had local takeaway several times a week when she felt more discomfort. She had difficulty getting things out of the oven. She could put things in the washing machine and hang them on a low clothes-horse. She could not carry anything weighing more than a few kilograms without more back pain. Her family had to do the vacuuming and mopping.
72 The plaintiff socialised less since the injury, and doing so was now more of a chore. She preferred to be by herself, and had become quite housebound. She looked for excuses not to go out, and had become separated from a lot of her friends. She constantly felt tired. She did not feel she would be good company, and felt a burden on her family. She had lost some of her libido, and felt less alive.
73 Ongoing back pain seemed to be getting worse. The plaintiff became teary at times, and felt powerless and not in control of her future.
74 In her second affidavit sworn on 4 October 2017, the plaintiff confirmed she continues to suffer from depression, anxiety, and panic attacks. She feels anxious, and her moods are often low. She has difficulties with sleep, which affect her memory and ability to understand, comprehend, and concentrate. She is still seeing Mr Salter.
75 As a consequence of her psychological injuries, her trouble sleeping, and the effects of medication, the plaintiff suffers what she is told are myoclonic jerks and tremors, confirmed by her husband, during which she often feels faint and unstable.
76 On about 5 March 2016, the plaintiff had a fall in her kitchen after becoming faint. Her next memory was waking in Dandenong Hospital with pain in the right side of her head. Investigations were undertaken, and she was released the following day.
77 Thereafter, the plaintiff consulted Professor Drago and her general practitioner. Professor Drago thought the fall was related to hypertension causing syncope related to the medication the plaintiff was taking, particularly Zoloft, and she was told to cease taking it.
78 Professor Drago then put the plaintiff on Epilim, but that made her sick, and she stopped taking it. She continued to see Professor Drago until the middle of 2016.
79 The plaintiff currently takes 200 milligrams of Palexia twice a day, 150 milligrams of Lyrica, and 5 milligrams of Diazepam twice a day, together with Panadeine Forte and Nurofen as required.
80 The plaintiff is conscious of the type and frequency of the medication, and finds it difficult to take, as it often makes her feel lethargic and drowsy during the day.
81 The plaintiff sees Dr Jigau approximately fortnightly, and he treats her for both psychological and physical injuries.
82 Funding was ceased recently, and the plaintiff now pays for the psychologist treatment herself. Palexia and Lyrica are funded. Before cessation of funding, the plaintiff tried to see her physiotherapist once a month. She has consulted him through Medicare, and attempted to attend the gym and do the light exercises he has recommended.
83 The plaintiff often experiences significant pain and discomfort when sitting and/or standing for long periods. This is also the case when walking for longer than fifteen to twenty minutes at a time. She tries to walk as much as she can, and continues to try to push herself to walking longer distances, but it is difficult.[39] Her pain goes up and down. Some days it is really awful.[40]
[39]T55
[40]T42
84 Bending, twisting, and or squatting are difficult and cause exacerbation of the plaintiff’s back pain. She often experiences significant pain and discomfort in performing sweeping-type actions, or when doing above-shoulder movements. She struggles carrying or lifting things for any long distance.
85 The plaintiff often tries to alternate between sitting and standing, and finds a change in posture can help relieve the pain and discomfort if only for a short time.
86 It all depends for how long the plaintiff can stand. It is unpredictable. She can sometimes stand for about an hour. She did know she had been standing for that long in the witness box. She was sitting down waiting to give evidence. When she went into the witness box, she initially stood but then had to sit down because her back was sore.[41]
[41]T40
87 The plaintiff continues to be restricted in domestic, social, and activities of daily living, and feels she is a burden on her family. She has difficulty with some aspects of self-care, with problems showering and dressing. She does a little around the house when she can. She can iron clothes
88 The plaintiff regularly experiences recurrent thoughts, with her mind racing, always reminded about her injuries and incapacities. She has depressed and lowered moods, and feels as if she has lost hope. She has lost energy and motivation, and often finds it difficult to do basic, everyday things. She has a sense of worthlessness. She is currently worried, has problems with her memory, and finds herself breaking down emotionally. Her mind races when she tries to sleep, and she sometimes feels the onset of panic attacks when she thinks about her injuries and their impact. Coping mechanisms sometimes relieve her symptoms.
89 As a consequence of her work injuries, the plaintiff’s psychological condition has deteriorated, and getting through every day is difficult. She often feels overwhelmed, as though she can no longer take the constant pain, discomfort, and physical incapacities, and deal with her situation. She has had thoughts of self-harm, and sometimes suicidal thoughts, and had thought about driving the car into a tree.
90 The plaintiff does not want to consult a psychiatrist for her psychological/condition, and had actively avoided psychiatrists. She does not want to consume any more medication for her injury, and fears that she will be treated like a crazy person if she is referred to a psychiatrist. She is concerned about her psychological state.
91 The plaintiff agreed that her depression is linked to her pain and she did not have depression before the onset of pain. Sometimes she can have depression without back pain. Sometimes she has both.[42]
[42]T45
92 The plaintiff has memory loss, may be related to her medication.[43]
[43]T65
93 About three or four months ago, the plaintiff became extremely overwhelmed by her situation, and on one day wanted it all to end. She recalled writing a note for her husband and son and going to the bathroom, where she then cut her wrist. Her husband came home and found her in the toilet. This was a very emotional time for the plaintiff and her family, and her husband and son are now often worried about her.
Work
94 The plaintiff only completed up to Year 10. Since coming to Australia, she has only ever worked in unskilled employment as a picker/packer, and is fearful for her future, as she has limited experience in any other form of employment.
95 As a consequence of her injury, the plaintiff’s earning capacity has been destroyed and or severely diminished. She does not believe she could return to her pre-injury employment because of both her physical and psychological injuries.
96 On about 23 July 2015, the plaintiff ceased work due to her work injuries, and has been unable to secure alternative employment and/or able to work since. Prior to her injury, she worked as much as she could, including overtime when it was available.
97 In about July 2016, the plaintiff completed a course in basic computer skills funded by the insurer. It was two hours a week over a three to four-month period, which taught her how to turn a computer on and off, open programs and other basic tasks, but she did not find even that easy.
98 The plaintiff is not good on the computer. She uses her husband’s Facebook.[44] She can send a text.[45]
[44]T54
[45]T55
99 In about June or July 2016, the plaintiff completed an English-language course arranged by the insurer. The course was two hours a day, once a week, over a three to four-month period, but the plaintiff missed a lot of days because of her injuries.
100 The plaintiff is concerned about her ability to secure alternative employment on a consistent and reliable basis. She is conscious as to the physical restrictions that she now has due to her back injury, and is frustrated by her incapacities. Her pain is constant, and her psychological problems continue to be something she struggles with daily.
101 The plaintiff would try to work four hours a day, five days a week if she did not have to lift more than 5 kilograms, did not have to sit or stand for more than 30 minutes, and could move when she wanted. Her pain is unpredictable so sometimes she has to lie down on her stomach. The pain is very bad and she has to take painkillers. Sometimes with her mood, it is hard to go outside, even to the grocery shop.[46]
[46]T41
102 The plaintiff could not say whether she could do light work for twenty to twenty five hours a week. She would like to, but she cannot, because in her situation she does not know when the pain is coming. It is up and down. She is worried she would have to go home from work after two hours. She would not know when she was going to have a good or a bad day. She does do something when she can manage her pain. Some days she does not feel like going out and feels really flat.[47]
[47]T43
103 The plaintiff could never do what had been suggested in terms of light work and limited hours. She did not want to do so as it would cause pain. Sometimes the pain comes on for no reason.[48] Other days, she has pain but still does things.[49]
[48]T46
[49]T47
104 When the plaintiff worked with the employer, the system was just to get things done. She was not given an order sheet. She could understand some written directions in English[50] and was able to ask for assistance.[51] The plaintiff did not think she could do the suggested packing job now because of her injury[52] and with her lower back pain.[53]
[50]T48
[51]T52
[52]T49
[53]T50
105 Whilst the plaintiff is able to get things out of the fridge at home, it is different being at home than at work.[54] On a really bad day, she could not do anything because she just had to lie down on her stomach. She has the pain and then becomes depressed and is really down. Some days her pain is so bad she could not even get anything out of the wardrobe.[55]
[54]T50
[55]T51
106 The plaintiff would not be able to do the final assembly tasks involved in the packer job. She could not work at the workstation involved in that job because she could not reach high. She was not sure she could do some of the work tasks described such as putting things into little bottles.[56] She did not know when her pain would start.[57] Maybe sometimes she could put labels on things.[58]
[56]T54
[57]T53
[58]T54
107 The plaintiff sometimes has a day that she can manage her pain and it is not that severe. If she had to lift 5 kilograms repetitively, she would be in pain and she could not lift that weight to her shoulder height without pain.[59]
[59]T64
Summary of the Plaintiff’s earnings
Financial Year Gross Payments 2010-2011 $30,183 2011-2012 $41,474 2012-2013 $41,092 2013-2014 $31,359 2014-2015 $35,489 2015-2016 $36,473
Lay evidence
108 The plaintiff’s husband, Cezar, swore an affidavit on 4 October 2017 in which he confirmed the plaintiff’s spinal complaints and her psychiatric issues, including a recent suicide attempt.
109 The plaintiff is a completely different person since the injury, before then being happy, healthy, and hard-working. She enjoyed working and providing for the family, and was financially independent, and that is why she continued working despite her pain. However, Cezar did not believe the plaintiff could deal with the pain any more, and he was scared that one day he would come home and find her dead.
The Plaintiff’s medical evidence
Treaters
110 Physiotherapist, Mr Melamed, first saw the plaintiff on 11 October 2013. He then noted:
· “Felt okay post Rx. Last night developed R LBP and elbow pain. Mainly standing at work and packing … Rx Tx-Lx mobs bilat.”
· 20 November 2013, “3/7 ago severe pain from doing a lot of work, new conveyor at work too rough. Took Endone.”
· 14 February 2014, “had to take a day off work again, work involves standing stooped for 14/24”.
· 2 October, “back to work on 6/10/14 for 5/24 per day light duties. Still getting the pain. Put the WorkCover through could not do it otherwise.”
· 21 November 2014, still on light duties at work, mainly supervising.
· 13 February 2015, “Chronic discogenic lower back pain that’s usually aggravated with prolonged standing and lifting. Have been put off work for the second time for a month. Was put in the wrong department at work last week where she had to do a lot of lifting.”
· 15 July 2015, “1.5 weeks since going back to work very light duties Sunday night. Back aching all night. Settled since.”
· 29 July 2015, “increased hours to 4/24 per day, 3/7 per week. Still getting occasional back spasm and down legs either R or L.”
· 4 November 2015, “battling with employer and WC re return to work. Waiting for some meeting can do light duties but not allowed to return still.”
· 20 June 2016, “still work has not been helpful in return to work. Nabenet has suggested retraining and work is now faster paced so they don’t believe it will be suitable.”
111 Mr Melamed reported in March 2017, that the plaintiff had been a patient since May 2013. She had had a gradual onset of right sided lower back pain and mid thoracic pain while at work packing. She had been trying to get back to work over the years but the company had not been very helpful in his opinion, and she had not been at work for quite some time.
112 Mr Melamed noted the plaintiff was still on quite strong medication and had treatment every three to four weeks, for pain relief mainly. She had been given a gym and exercise program. He thought she was gradually getting weaker, and he felt she had developed psychological issues.
113 Mr Melamed did not believe the plaintiff had any incapacity for work duties now, and indefinitely. He noted she had always been a willing participant in her rehabilitation, but felt all options had been exhausted now. He considered she would suffer with chronic pain and physical disability as a result, and had not been able to do even many home duties and domestic duties.
114 Mr Mark Salter, clinical psychologist, first saw the plaintiff first in early July 2014 on referral from Dr Coptil. Over thirty nine months, until October 2017, the plaintiff had been seen fifty four times.
115 The plaintiff described her work for seven years with the employer requiring differing repeated bending, reaching and lifting movements. She experienced gradually increasing back pain over a four-year period, but tried to manage it herself quietly.
116 The plaintiff stated she gradually struggled to keep up with the increasing pace of the line as her back pain developed, and on one occasion, she had lifted a box from the line and felt a sharp pain like a knife.
117 The plaintiff initially tried to ignore the pain and expressed a belief that drawing attention to it could result in her losing her job. She paid for her own chiropractic and physiotherapy for a year and had not told her work. She used up all her leave before she considered WorkCover.
118 The plaintiff described fluctuating back pain, with some days much worse than others but she could not find a pattern to the variation.
119 Mr Salter noted the plaintiff attempted light duties at work for almost a year, but eventually her employer was not willing to have her on the packing line given the potential sedation effect of the analgesics she was taking.
120 Mr Salter provided a cognitive behavioural approach to the treatment of depression, anxiety and pain.
121 Having detailed the plaintiff’s progress till then, Mr Salter noted in February this year that the plaintiff, in a desperate and fanciful flight into wellness, reportedly threw away all her medication in an experiment that did not last for long.
122 At that time, Mr Salter thought the plaintiff was still suffering from an Adjustment Disorder with anxiety. However, due to increasing hopelessness, her mood state had worsened to the extent that a diagnosis of Major Depressive Disorder was warranted.
123 Mr Salter noted the plaintiff’s avoidance and thus her anxiety had reduced considerably over the course of therapy. Recently, he had been only seeing her monthly, and over the last two sessions, there had been some suggestion of improving mood.
124 Mr Salter thought the temporal relationship and the content of the plaintiff’s ruminations indicated these disorders were as a consequence of her work injury.
125 In Mr Salter’s view, should the plaintiff’s pain somehow ameliorate in the short term, she would still not currently be fit for work due to her significant attentional disturbances. In her current state, she would be expected to experience significant memory and learning difficulties that would probably make acquiring the skills of a new job and sustaining her attention over a significant time very difficult. He noted the medication that she is prescribed for her pain significantly exacerbates her concentration deficits.
126 For these reasons, Mr Salter did not consider the plaintiff had a work capacity.
127 In Mr Salter’s view, both the plaintiff’s anxiety and depression currently affected her social and ADL functioning. Her withdrawal behaviour appears to be slowly decreasing. With encouragement and appropriate goal setting, increased socialising was becoming more likely (which in turn would be hoped to positively affect mood).
128 Although it was Mr Salter’s understanding the plaintiff’s physical status is not expected to improve, he held significant hope that a return to a better, more hopeful quality of life was possible for the plaintiff. Should that occur, her suicidal ideation would be expected to resolve. That is, with support, Mr Salter believed the plaintiff’s psychological functioning will most probably improve, leading eventually to an improved quality of life irrespective of her physical recovery, but this process may take 12 or more months.
129 Dr Calum Morley, chiropractor, reported in March and August 2014.
130 The plaintiff first presented on 27 September 2013 with chronic lower back pain of idiopathic origin over the previous three years.
131 Dr Morley diagnosed mechanical back pain exacerbated by hyperlordotic lumbar spine and physical work. As of March 2014, he recommended continuing treatment for the following six months at monthly interviews.
132 On 26 August 2014, Dr Morley advised Dr Jigau that the plaintiff had recently reported a new injury that occurred at work when she was lifting boxes about a month ago. On examination, he found biomechanical joint dysfunction in the right sacroiliac joint, along with inflammation of the lumbosacral junction, and treated that with adjustments.
133 Dr Kathryn Johns, consultant rheumatologist, saw the plaintiff on referral from Dr Coptil in March 2014.
134 Dr Johns noted the plaintiff presented with a five-year history of mid and lower back pain.
135 On examination, the plaintiff was minimally tender at the lower lateral spine but not the sacroiliac joint. Movement of the lower spine was normal.
136 Dr Johns advised Dr Coptil that the plaintiff was very keen to have an MRI scan of her entire spine. She explained to her that that could not all be done in one go but had referred the plaintiff for an MRI scan of her cervical spine and thoracolumbar and lumbosacral spine.
137 Dr Marie Feletar, rheumatologist, saw the plaintiff on referral from Dr Coptil in July 2014.
138 The plaintiff then advised she worked as a machine operator picking and packing, and for two years she had lumbar back pain, sometimes extending up towards the thoracic spine.
139 Dr Feletar noted the plaintiff had a cervical and lumbar MRI scan which revealed some mild cervical disc disease and very mild lumbar disc protrusions at the lower levels, with no evidence of nerve root impingement.
140 Dr Feletar advised that she thought the plaintiff had pain which was a bit disproportionate to the radiology findings. She tried to explain to the plaintiff the nature of degenerative issues. She thought management should involve paracetamol, and prescribed Naprosyn, particularly to try and get the plaintiff off Endone, which she noted was a drug of dependence.
141 Dr Feletar thought antidepressants were likely to be of use for the plaintiff for their anxiolytic effect. She noted the plaintiff seemed very anxious about her problem. Dr Feletar thought long-term self-management strategies were crucial, with an understanding of the need for muscle strengthening and exercise, and the fluctuating nature of pain.
142 Ms Carmen Manolache, psychologist, first saw the plaintiff in late August 2014. On referral, Dr Jigau advised that the plaintiff was then suffering with anxiety, depression, insomnia and lack of appetite.
143 On that first visit, Ms Manolache noted the plaintiff did not see the need to engage in the process to helping herself.
144 When she reported in September 2014, Ms Manolache thought the plaintiff suffered from both physical and mental exhaustion from dealing with physical and mental pain. She felt hopeless, helpless and had withdrawn from social life.
145 The plaintiff indicated she did not want her husband or son to miss work while driving her to therapy. Ms Manolache suggested to the plaintiff and her husband to continue therapy, and offered to accommodate them after hours. The plaintiff agreed, but despite her promise to commit, she discontinued therapy after two sessions. At that stage, Ms Manolache was concerned about the plaintiff’s state of mind and her ability to overcome this crisis. She thought the plaintiff was then in great need of specialist support and recommended she attend an inpatient program at a hospital to treat her major depression.
146 The plaintiff was initially referred to Professor John Drago, neurologist, by Dr Jigau in November 2014.
147 In his letter to Dr Jigau of 17 November 2014, Professor Drago noted the plaintiff’s difficulties at work with back and thoracic pain while working about a year ago (October 2013). He also noted the plaintiff had a twenty year history of classic migraine headaches with visual aura, and she had three attacks a month.
148 The plaintiff’s back pain developed five years after she started working in a pharmaceutical company when she was lifting boxes in excess of 10 kilograms. She was told she had prolapsed discs, and described lower back pain with radiation down the right thigh but never beyond the knee. He suspected her pain had mainly a musculoligamentous origin.[60]
[60] Professor Drago’s report dated November 2014
149 Professor Drago then considered the likely diagnosis was Serotonin Syndrome and proposed some tests. He thought the plaintiff was a very difficult drug management case and encouraged she attend a pain clinic. He noted she was intolerant of any level of pain and had a propensity to overuse medication, although he suspected the Zoloft overdose was accidental.
150 Professor Drago saw the plaintiff again in March 2016, having had a further event, following which she attended Dandenong Emergency Department and was assessed as having a generalised colonic seizure, a diagnosis with which he agreed. He changed her medication at that stage and organised further investigation.
151 An EEG at Box Hill Hospital was normal. Professor Drago noted the plaintiff had cut back on Endep and started Epilim, and was feeling very well on a single Endep at night and 200 milligrams of Epilim. She had also reduced her Zoloft, although that was not something he told her to do, but he was reluctant to change anything as she was well on that current regime. He planned a review in three months, and the plaintiff agreed it would be prudent for her not to drive pending further review.
152 Professor Drago wrote to Dr Jigau in June 2016. He noted major changes to the plaintiff’s medication since the fall six months earlier, with the plaintiff on Zoloft and Endep, which she used basically as a sedative, particularly if she had taken Tramadol during the day. She stopped Epilim. Professor Drago advised that the plaintiff was quite alert now and he would be happy for her to start driving. It was six months since the event and given all the complicating issues, he suspected that it was unlikely that this was an unprovoked seizure.
153 Dr Jigau’s clinical notes set out numerous complaints of severe chronic thoracic back pain by the plaintiff from 30 July 2013 to March 2014.
154 Dr Jigau provided a lengthy report in September 2017.
155 Dr Jigau noted the plaintiff started to develop middle and lower back pain as the speed in the production line increased from the beginning of 2013. She persisted at work with normal duties, even though she was in pain. She was taking Endone and Tramadol. She was having physiotherapy and chiropractic treatment but ceased, as she felt her condition was not improving, but getting worse. She had sleeping issues. Meanwhile, she had been seen by rheumatologists, Dr Johns and Dr Feletar and also by Dr Salter, a psychologist.
156 The plaintiff had used up all her annual and sick leave as she was unable to cope with pain. There was, then, an incident after which she could cope no longer and she ceased work.
157 Dr Jigau noted the plaintiff tried to cope with all the pain and tiredness and also tried to hide the symptoms from her workplace. She went through a very rough time with her mental health. She was experiencing very low self-esteem, feeling embarrassed that her husband was working hard, and she was taking intermittent time off work, leading to having some suicidal thoughts, and one day she wanted to crash her car and end her life.
158 Dr Jigau noted that after some time off work, the plaintiff was determined to get back into the workplace with reduced hours, with restrictions of lifting and bending. Not being able to cope, she ceased work for good, and had not returned since.
159 Dr Jigau noted, apart from the pain, another big factor keeping the plaintiff remote from work was the severe anxiety, depression and the side effects of pain medication. There was also the incident in March 2016, when the plaintiff fainted at home and had to be taken to hospital by ambulance due to a seizure, following which she was seen by Professor Drago.
160 As the plaintiff was responding well to Professor Drago’s treatment, at the end of August last year, a return to work conference was organised. Dr Jigau noted that Dr Entwisle and Dr Baynes agreed the plaintiff was not able to go back to work in her pre injury duties and hours. She did an English course and was happy to participate in further training. From a physical point of view, the plaintiff was able to retrain, however, due to the side effects of her medication and severe anxiety issues, she was not able to continue.
161 Dr Jigau diagnosed chronic thoracic back pain, Post-Traumatic Stress Disorder (“PTSD”) and Adjustment and Anxiety Disorder with symptoms such as depression, anxiety, panic attacks, mood fluctuations, insomnia, headaches, pain in the left lower back and hip, middle of the back and legs, especially the left.
162 The plaintiff was then taking Palexia, 200 SR; Tramadol, two tablets daily; Endep, two tablets daily, Lyrica as required, as was the situation with Diazepam, Panadeine Forte and Zoloft.
163 Dr Jigau noted the plaintiff was able to self-care and do light home duties, but at her own pace, with lots of breaks and rest. She was driving for short distances. She used to be very involved in her church community activities and fund raising events, but did not attend many social functions and activities any more.
164 Considering the plaintiff’s history, it was Dr Jigau’s professional opinion she was unfit for work and she required regular assessment and ongoing counselling.
165 In a subsequent report of 4 October 2017, Dr Jigau noted the plaintiff’s present symptoms, both physical and psychiatric.
166 The plaintiff’s current symptoms were mid to lower back pain 5 to 7 out of 10 with severe acute attacks 9 out of 10.
167 It was Dr Jigau’s professional opinion, taking into account the plaintiff’s thoracolumbar sacral issues alone, she would never be able to return to her pre injury duties or employment. Her prognosis was poor and uncertain, and had gradually gotten worse. Due to the severity and unpredictable aggravation of the plaintiff’s pain, and the necessity of painkillers with associated side effects, Dr Jigau thought she was not able to have or hold alternative employment on a consistent and reliable basis.
168 Dr Jigau had a similar view in terms of the plaintiff’s psychological injury alone, and also that it restricted her from a social point of view.
169 Further, Dr Jigau noted that on 8 May this year, the plaintiff inflicted self-harm, and her husband brought her to the clinic late that night. Dr Jigau treated and counselled the plaintiff however, she refused to go and see a psychiatrist because of the stigma attached to it.
170 The plaintiff attended Casey Hospital Emergency Department on 15 November 2014, with the presenting problem being “?” overdosed on Diazepam, Oxycodone and Sertraline. A past history of depression and lower back pain was noted.
171 The plaintiff attended Dandenong Emergency on 5 March 2016, presenting with GTCS, with a fall from a standing height and closed head injury. It was noted that that was in the context of significant psychosocial stressors and days of sleep deprivation.
Medico-legal evidence
172 The plaintiff was examined in July 2016 by neurosurgeon, Dr Aliashkevich.
173 The plaintiff then indicated most of her pain had been located in the thoracolumbar and lumbosacral areas. She rated the intensity thereof at around 8 out of 10, despite regular Tramadol, Zoloft and Lyrica. She suffered from significant depression.
174 On neurological examination, the plaintiff had preserved muscular strength, normal tone and bulk. Reflexes were symmetrical, and there was no sensory deficit on pinprick testing. Range of movements in the lumbar spine were restricted, with flexion possible to about 45 degrees. There was an area of tenderness on palpation of the spinous processes in the low thoracic/upper lumbar regions, and also in the lumbosacral/sacroiliac areas.
175 Dr Aliashkevich diagnosed chronic and refractory mechanical thoraco and lumbosacral pain, noting no abnormalities on the whole spine MRI.[61] He also diagnosed depression.
[61]27 March 2014
176 In Dr Aliashkevich’s view, the plaintiff was unfit for pre-injury employment or alternative duties based on the severity of her pain and her need to take several painkillers. He noted the causes of her spinal pain were not entirely clear. Although the possibilities of rheumatic conditions had been taken into account and she consulted two rheumatologists, the plaintiff would need further investigation. Based on her current clinical condition and history, he thought it appeared the repetitive character of the plaintiff work had been a contributing factor to her pain, and remained a significant contributing factor to her current condition.
177 Dr Aliashkevich thought the prognosis was uncertain, noting the causes of the plaintiff’s pain were not entirely clear, and there was no improvement on regular pain-medication and rest.
178 The plaintiff was seen by sports physician, Dr David Kennedy in May 2017. She then complained her main problem was pain in her mid to lower back, with an average pain level of 6 out of 10, but it could go up to 9. There was stiffness and tightness persisting in the back, and some tightness and pain in her neck.
179 On examination of the plaintiff’s thoracolumbar spine, she moved very slowly and deliberately, with tightness over her spine, and generalised mid to lower thoracic and lumbodorsal spinal tenderness. There was mild cervical tenderness dorsally.
180 Dr Kennedy noted the April 2013 lumbar spine CT scan with a mild paracentral disc bulge at L5‑S1 extending to the right exit foramen, which was slightly narrowed.
181 Dr Kennedy thought the plaintiff had clinical signs of lumbar spondylosis with a chronic pain syndrome due to the longstanding problems that had occurred in relation to her work over a number of years since she had started in 2008. As a result, she had suffered significant acceleration and exacerbation of previously asymptomatic problems in her lumbar spine which may have been present before 2008 but were not causing any significant problems until her current job.
182 Dr Kennedy noted the plaintiff was presently certified as unfit for all occupational duties by her GP. He considered her current incapacity for work had been materially contributed to by her work-related injuries due to the strenuous and repetitive nature of the work she was required to perform.
183 Taking into account the plaintiff’s age, transferable skills, and qualifications, as well as her limited command of English, the level of pain, and the effect she has with medication that she requires for pain, as well as her significant anxiety and depression, Dr Kennedy thought the plaintiff would have difficulty returning to any occupational duties in the foreseeable future, particularly because of her chronic pain syndrome due to the significant lumbar spondylosis.
184 Dr Kennedy thought the plaintiff would have problems performing the vocations suggested in August 2016, as she has problems maintaining a static posture, whether it be sitting or standing, for more than about 45 to 60 minutes. She also has problems with chronic pain in her lumbar spine, for which she requires regular strong medication. Further, she has significant and ongoing psychological problems with anxiety and depression which will make any attempts to return to modified occupational duties difficult.
185 Dr Kennedy thought the plaintiff would have difficulty working as a quality controller, mail clerk (with training), and receptionist (with training), because of the problems maintaining a static posture, whether sitting or standing, particularly leaning forward for any length of time, her poor command of the English language and limited transferable skills, capabilities, and also her medication requirements.
186 Dr Kennedy noted the plaintiff’s specific limitations relate to her sitting and standing tolerances, her inability to bend, twist, or turn under load or stress, and also her restrictions in relation to any manual handling at loads greater than 2 to 3 kilograms. He considered her restrictions in relation to a number of physical capacities and capabilities is permanent.
187 If the plaintiff were to find an appropriate vocation that enabled her to alternate her workstations between sitting and standing as required, avoid repetitive bending, twisting, or turning under load or stress, and did not require any manual handling, then, Dr Kennedy thought under the guidance of her GP and pain-management specialist, she may be able to attempt a return to work program, working two hours a day, three days a week, and gradually increasing her hours, but he thought it unlikely she would be able to work for more than 16 hours a week. The specific limitation on the plaintiff working more hours will be the chronic pain in her lumbar spine, the problems with sitting and standing tolerances, as well as her requirements for regular strong analgesic medication.
188 Dr Kennedy noted as a consequence of the injuries to her lumbar spine, and her ongoing stress and anxiety and depression, the plaintiff was also restricted with respect to a number of social, domestic, and recreational activity, particularly those involving maintaining a static posture for more than 30 to 60 minutes, or if she is required to perform repetitive bending, twisting, or turning under load or stress. These restrictions were permanent. He noted the plaintiff required constant assistance by her husband and son with regard to most domestic duties.
189 Given the chronic pain syndrome with lumbar spondylosis, Dr Kennedy thought the plaintiff should be referred to a spinal specialist or pain management specialist to assist in relation to ongoing treatment for the problems involving her lumbar spine, as well as a specific spinal rehabilitation program.
190 Dr Kennedy considered the plaintiff had a poor prognosis because of a combination of a chronic pain syndrome due to work-related injuries sustained to the lumbar spine, aggravating and accelerating pre-existing asymptomatic lumbar spondylosis, as well as her significant stress-related anxiety and depression.
The Defendant’s medico-legal evidence
191 Dr Das, psychiatrist, examined the plaintiff in December 2014.
192 The plaintiff was then on antidepressant medication, a combination of 100 milligrams of Zoloft and Endep, and saw a psychologist. Dr Das thought the plaintiff was perhaps experiencing side effects as a result of this combination of medication and should be referred to see a consultant psychiatrist for rationalisation of her antidepressant therapy. He thought psychologist involvement was probably wise to continue for pain management.
193 At that stage, noting the plaintiff was at work on reduced hours and light duties, Dr Das did not think she had a full capacity to resume her full hours and full pre injury duties, but an opinion from a pain specialist or orthopaedic surgeon would be useful to consider.
194 Dr Das diagnosed an Adjustment Disorder and depressed mood of moderate severity. He noted the plaintiff had no relevant past or family history, and the condition was secondary to the effects and consequences of the incident injury.
195 Dr Das thought the prognosis was largely dependent upon the progress and recovery the plaintiff achieved in relation to her accepted diagnosed condition of back injury. Should the symptoms and pain associated with the injury persist, he thought she would most likely continue to experience mild to moderate symptoms of depression on an ongoing basis.
196 Dr Michael Baynes, occupational physician, saw the plaintiff in June 2016 and re-examined her in March 2017.
197 Dr Baynes also provided a supplementary report in which he commented on the jobs suggested by Recovre in September 2017 and further explained his view that the plaintiff had evidence of abnormal illness behaviour.
198 On the first examination, axial compression was positive. Straight leg raising was to 90 degrees informally, and 80 degrees when tested.
199 Dr Baynes noted the July 2014 lumbar MRI scan reported mild, left neural exit foraminal narrowing on the left from L2-3 to L4-5. At L4-5, there was an annular tear, which can be a painful lesion in an acute setting, but there was no neural compression at any level.
200 The plaintiff advised she slowly developed thoracic and lower back pain from around 2012, with no particular incident. In the past, the boys would move the pallets, but after a cut down in staff, she had to do the pallet moving as well, which resulted in a gradual onset of back pain.
201 The plaintiff advised that the pain comes and goes. It was in the thoracic region around the bra line as well as in the lower back. She was limited to standing for thirty minutes and sitting, sixty. She could walk for 2 kilometres and drive for thirty to sixty minutes. She was then taking, in addition to Zoloft, Tramadol and Lyrica as necessary. She had stopped Endone.
202 Following that first examination, Dr Baynes thought the plaintiff was suffering from chronic back pain affecting the lower thoracic and lower lumbar regions in association with pre-existing degenerative change in the lumbar spine. He believed that was in association with a soft tissue injury. He considered there was evidence of illness behaviour with positive Waddell’s signs.
203 Dr Baynes believed there were significant biopsychosocial factors impacting on the plaintiff’s ongoing symptoms, which were negatively impacting on her capacity to return to work.
204 Dr Baynes considered there was evidence of pathology in the upper thoracic spine at T3-4, but he did not believe it was related to the plaintiff’s current condition. He also believed the lower lumbar degeneration pre-existed and was not related to the plaintiff’s injury.
205 Dr Baynes did not believe the plaintiff was fit for pre injury duties and hours. From a purely physical point of view, he believed she had the capacity to return to work on a limited hours’ basis, with no lifting of greater than 5 kilograms and no lifting from below knee height or above shoulder height. She should also be able to frequently change her posture.
206 Dr Baynes thought a return to work on a limited hours basis of four hours, four days a week, with a progressive increase in hours to pre injury hours, would be appropriate.
207 Dr Baynes believed the plaintiff was fit for roles including light packing and assembly work, as well as light machine operator work, particularly where she could rotate postures between sitting, standing and walking.
208 Dr Baynes then thought the plaintiff would benefit from being referred to a pain specialist and into a chronic pain management program, multidisciplinary in nature.
209 Dr Baynes provided a supplementary report, having seen a surveillance report and DVD of 5 July 2016, which showed the plaintiff getting in to and driving a Nissan Pulsar, shopping at Coles and carrying a shopping bag. That new information did not cause him to alter his original opinion.
210 Dr Baynes also confirmed his view about the role of biopsychological factors. He did not believe however the soft tissue injury had resolved and it was still causing the lower back and thoracic pain in association with pre-existing degenerative changes.
211 On re-examination in March 2017, the plaintiff advised there was no real change in her condition. Axial compression was again positive.
212 Dr Baynes noted an MRI scan of the lumbar mid lower thoracic spine performed on 3 August 2016 reported normal appearance of the imaged mid and lower thoracic spine. There was lower lumbar facet arthropathy with only mild to moderate neural exit foraminal narrowing and no convincing evidence of nerve root impingement.
213 Dr Baynes confirmed his previous diagnosis and noted the cause of the plaintiff’s ongoing back pain was unclear. In his view, there was no objective evidence of radiculopathy and some evidence of illness behaviour with positive Waddell’s signs.
214 Dr Baynes not believe the transport accident in August 2015, or the fall in March 2016, contributed to the plaintiff’s current back condition.
215 Dr Baynes confirmed the restrictions suggested in the earlier report. He believed the plaintiff was fit to return to work on a limited hours basis, working four hours, four days a week, with progression in hours up to around twenty to twenty-five per week, taking into account the history of chronic back pain, which tends to wax and wane in severity. Based on her history, he did not believe the plaintiff would get back to fulltime hours at that point.
216 Dr Baynes considered the plaintiff would be fit to undertake light packing and assembly work, particularly where she could rotate postures. She would be fit to undertake work in an office type environment, particularly with further retraining as a receptionist or a ticket seller and to be fit to undertake customer service roles, but with the ability to rotate postures.
217 In a supplementary report dated 31 July 2017, Dr Baynes confirmed he believed it highly likely non-physical or functional aspects in terms of illness behaviours were contributing to the plaintiff’s incapacity for work. He believed the functional aspects or centralisation of pain were negatively affecting the capacity for activities of daily living and work. If these were totally removed from the equation, he would estimate the plaintiff would have a far greater capacity for work duties, but with still some restriction in terms of avoiding heavy lifting greater than 10 to 12 kilograms, and forceful twisting postures and actions. She would be fit for fulltime duties.
218 Dr Baynes provided a further report on 2 October 2017, having been provided with the Suitable Employment Report from Recovre.
219 Dr Baynes believed both roles fit within the physical restrictions of no lifting greater than 5 kilograms, and no lifting from below knee height or above shoulder height, and with the ability to frequently change postures. Both roles had the ability to rotate postures, and sitting or standing was limited to less than thirty minutes at a time.
220 Dr Baynes believed the plaintiff would be fit to return to these roles on a limited basis, working four hours, four days a week, with progression in hours up to twenty to twenty five hours a week. From a physical point of view, he believed she could perform all the tasks of the job and did not perceive her experiencing any difficulty in regard thereto. An ability to rotate postures between sitting and standing was important, along with a period of work hardening to allow an improvement in the plaintiff’s physical fitness.
221 Dr Baynes thought the plaintiff would require on the job training, using computer systems and the methods of undertaking the individual tasks, confirming the hours he thought were appropriate.
222 Dr Timothy Entwisle, psychiatrist, first saw the plaintiff in December 2015, re-examined her in June 2016, and last saw her in August 2017.
223 On both examinations, Dr Entwisle diagnosed an Adjustment Disorder with depressed and anxious Mood and a Pain Syndrome.
224 On re-examination, Dr Entwisle noted pain behaviours were not demonstrated. He thought that it was readily obvious that the plaintiff’s psychiatric condition improved when managed with Zoloft, but that was ceased in the context of concerns about the Serotonin Syndrome. In Dr Entwisle’s view, if the plaintiff’s treating doctors were prepared to manage her pain with more appropriate medication, her treatment with Zoloft could be reinstated and was likely to improve her depressed and anxious mood.
225 Dr Entwisle thought the plaintiff’s current psychiatric symptoms occurred in the absence of appropriate psychiatric treatment with the development of an avoidant and withdrawn lifestyle. He noted the pity in all of this was the plaintiff’s psychiatric symptoms were eminently treatable and improved previously with Zoloft.
226 Dr Entwisle noted the plaintiff’s psychiatric condition did not occur at the time of the injury, and had developed over time, and in circumstances of unemployment and a withdrawn and isolated lifestyle. Attempts by her psychologist to encourage her to become more involved and active in rehabilitation appear not to have been effective.
227 Dr Entwisle thought the plaintiff’s psychiatric symptoms, of themselves, were not at a level to prevent her from returning to work and that her psychiatric condition would improve with appropriate treatment.
228 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff in March 2017.
229 In general terms, Mr Jones found the plaintiff evasive in terms of her history, with she and her husband referring either to the side effects of her medication and her other condition of anxiety and depression and/or just simply poor recall of circumstances or events of her history. To make some semblance of her back injury, he relied heavily on the documentation provided.
230 The plaintiff reported suffering a back injury on an unspecified dated in 2014 while lifting a box of toothpaste. She denied, initially, previous symptoms of back pain, however, he noted there were previous reports in 2013, and possibly in October 2012. He also noted the investigations in 2013.
231 On examination, the plaintiff reported symptoms of middle and lower back pain of a variable nature, which could be activity related. She had diffuse pain indicated in the soft tissues well to the left of the midline on the left side of the thoracolumbar junction. Subjectively, she described some diminished sensation in the skin below the level of the left knee joint.
232 Mr Jones noted a CT scan performed in April 2013 referred to a mild right sided disc bulge at L5-S1 with some facet joint degenerative changes at L4-5 and L5-S1. Further, an MRI scan of March 2014 of the whole spine concluded there was no significant abnormality, and at the lumbar spine, some insignificant disc bulging reported at L3-4 and L4-5, with no evidence of any herniation or posterior annular tear.
233 Mr Jones noted an MRI scan of July 2014 described some disc protrusions at L2-3, L3-4 and L4-5, and L5-S1 was said to be normal.
234 Due to the plaintiff’s apparent poor recall of her past history, Mr Jones was not able to establish any particular injury or incident in 2012. He thought she presented with disproportionate symptoms of back and leg pain which were out of all proportion to the minor pathology evident on MRI scan. He thought the outlook was one of minor variable lumbar back pain and stiffness symptoms, depending on any high demand activity attempted by the plaintiff.
235 Mr Jones noted the lack of presenting complaints and treatment prescribed, firstly by the plaintiff’s general practitioner, Dr Coptil or, subsequently, Dr Jigau, made assessment difficult. It would appear as though depression had been a factor in the plaintiff’s presentation, particularly the reported two month period off work sometime in 2014.
236 Mr Jones thought there was a marked functional component in the plaintiff’s presentation. It would appear as though there were psychological factors impacting on her capacity to work and, perhaps, her level of pain, but the opinion of a psychiatric would be required in this regard.
237 Mr Jones was then provided with the Stud Road Medical Centre clinical notes which contained an entry on 19 December 2012 of a complaint of lower back pain, prescription of Endone over the following months and then a note of a CT scan in May 2013 of the lumbar spine. That additional information did not cause him to alter his opinion, confirming he was unable to substantiate any specific injury occurring during the course of the plaintiff’s employment in 2014.
Vocational evidence
238 A Suitable Employment Report was provided by Janette Ash in September 2017. The plaintiff was not interviewed and Dr Baynes’ report of March 2017 was relied upon.
239 Two worksite assessments of actual job roles that existed within the local labour market were detailed, the first being a packer in a medical supplies business in Dandenong and the second, an electronics process worker in a car components manufacturing business in Hallam.
240 There were photos and a job description of the duties involved in both roles. The hourly wage for a packer was $24.53 and $19 for an electronic process worker.
Overview
241 Whilst Mr Jones had a history of injury on an unspecified date in 2014, this is a course of employment case where it has been accepted the plaintiff suffered injury as a result of lifting boxes and pushing and pulling pallets at work.[62]
[62]T5
242 By letter dated 31 October 2014, the plaintiff was advised by CGU that it had accepted her claim for weekly payments and medical and like expenses with the date of injury being 23 July 2014, the date the plaintiff first stopped work.[63]
[63]T68
243 The plaintiff received weekly payments for 127 weeks[64] and currently the review of the termination of her payments is before the Magistrates’ Court.[65]
[64]T6
[65]T14, T15
244 There is no suggestion that prior to her work with the employer, the plaintiff had any spinal complaint.
Credit
245 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[66]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[66](2010) 31 VR 1 at paragraph [12]
246 Counsel for the defendant did not say the plaintiff was dishonest, but it was submitted that care had to be taken with her evidence because she was not a reliable historian. Examples relied on in this regard were her evidence as to the frequency of her pre injury migraines, her failure to remember being warned about drug addiction and her unsatisfactory evidence about a left wrist x-ray in 2012. Further, it was also significant that the plaintiff conceded she had exaggerated the time off work on sick leave.[67]
[67]T82
247 It was submitted whilst the plaintiff only conceded the one exaggeration, if that “prism” was applied to the whole of her evidence, “the picture becomes nowhere near as dire.”[68]
[68]T83
248 Counsel for the plaintiff submitted the plaintiff’s credit or the reliability of her evidence had “been sort of gently attacked”. In response to the matters raised on the defendant’s behalf, counsel relied on the plaintiff’s readiness to describe her evidence about sick leave as an exaggeration. Further, it was submitted the plaintiff got confused from time to time due to her understanding of English. She was prepared to make concessions about her capacity to do various things and did not say she could not do anything.[69] She tried to answer questions about her holidays, for example, as best she could.[70]
[69]T91
[70]T92
249 Further, it was submitted that the plaintiff’s evidence should be taken as reliable notwithstanding some difficulties with her memory, which may or may not relate to her medication intake.[71]
[71]T92
250 It was submitted it was consistent that the plaintiff never mentioned anything to the employer about her back pain being work related as she wanted to keep working. However, in the early days, she was going to the doctor, being investigated and treated.[72]
[72]T93
251 I found the plaintiff to be a truthful witness who gave a credible account of her spinal pain and resultant disability. I accept that she was a hard working woman who did not report her work related back injury until 2014 as she was afraid she would lose her job. The various examples relied on by counsel for the defendant do no alter my view as to the reliability of the plaintiff’s evidence.
252 Further, whilst the index to the defendant’s court book indicates surveillance was undertaken, no film was shown in Court of the plaintiff behaving in a manner inconsistent with her evidence as to her level of pain and disability.
253 In determining this application pursuant to ss(a), it must be established the plaintiff’s present spinal condition has an organic basis.
254 Counsel for the defendant was not going so far as to say there was not an initial organic injury[73] but submitted the plaintiff could not successfully disentangle the organic from the non-organic features of her condition as the Court required in Meadows v Lichmore[74] and establish an organic basis to her present spinal condition.[75]
[73]Mr Jones diagnosed a minor strain and Dr Baynes, a soft tissue injury to the back
[74][2013] VSCA 201
[75]T74
255 In Meadows v Lichmore, Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”[76]
[76](Supra) at paragraphs [21] and [22]
256 Counsel for the defendant submitted that the plaintiff’s spinal pathology was relatively minor.[77] Whilst Dr Jigau’s notes described a prolapse at L5-S1, most practitioners described the finding at that level as a bulge with no nerve root involvement.[78]
[77]T72
[78]T73
257 Reliance was placed on Dr Aliashkevich who thought the MRI demonstrated no specific abnormalities.[79] In his view, the cause of the plaintiff’s pain was not entirely clear. However, as counsel for the defendant conceded, Dr Aliashkevich did not go as far as to say the plaintiff’s condition had a functional component as did Mr Jones and in particular, Dr Baynes.[80]
[79]T74; this MRI scan was undertaken in March 2014
[80]T75
258 Further, it was submitted a number of medical practitioners considered the plaintiff’s pain and symptoms were disproportionate to what would be expected from the pathology.[81] These included Dr Feletar,[82] who also noted the plaintiff’s anxiety.[83]
[81]T78
[82]T73
[83]T74
259 It was submitted Dr Baynes’ view should be accepted and that he did explain the Waddell’s findings on examination.[84]
[84]T87
260 In response, counsel for the plaintiff relied on the findings at both the thoracic and lumbar levels in the July 2014 MRI which counsel for the defendant conceded may indicate some relevant pathology[85] - namely “Mild left neural exit foraminal narrowing on the left from L2/3 to L4/5. At L4/5 there is an annular tear which can be a painful lesion in the acute setting … .”
[85]T7
261 It was submitted that Dr Baynes did not explain the basis of his Waddell’s findings and that they should be treated with a great deal of circumspection [86] and that no one was really “cavilling” with the fact the plaintiff was feeling pain and being treated for it.[87]
[86]T8
[87]T99
262 It was submitted that there needed to be a more comprehensive analysis to dislodge what was said to be an organic source of pain shown on radiology. For that reason, Dr Baynes’ “musings” should be treated with some circumspection by the Court. [88]
[88]T99
263 Reliance was placed on Dr Jigau’s opinion and the range of investigations arranged by him which showed an organic problem. It was submitted that his view was not just based on the plaintiff’s self-report.[89] Dr Jigau thought ongoing treatment was appropriate, but it had not helped.[90]
[89]T95
[90]T98
264 Taking into account all the evidence, I am satisfied the plaintiff continues to suffer from an organically based spinal condition. I accept her evidence of ongoing pain and restriction and her need for significant ongoing painkilling medication.
265 Treating general practitioner Dr Jigau considers the plaintiff is currently suffering from chronic thoracic back pain related to her work duties.
266 Whilst noting no abnormalities on the whole spine MRI, Dr Aliashkevich nevertheless diagnosed chronic and refractory mechanical thoraco and lumbosacral pain. He does not appear to have been provided with the July 2014 MRI.
267 Dr Kennedy found the plaintiff had clinical signs of lumbar spondylosis with a chronic pain syndrome due to longstanding problems that had occurred in relation to her work. As a result, he thought the plaintiff had suffered significant acceleration and exacerbation of previously asymptomatic problems in her lumbar spine.
268 Although Dr Baynes found some non-organic signs on presentation, he still described the plaintiff as suffering from chronic back and thoracic pain in association with pre-existing degenerative changes in the lumbar spine associated with soft tissue injury that had not resolved.
269 In my view, Mr Jones’ view was significantly clouded by his doubt as to the occurrence of a work related injury, describing the plaintiff as “evasive” in terms of her history. He did not give any adequate explanation of his findings and did not comment on the plaintiff’s work capacity.
270 Whilst pain management has been suggested the plaintiff continues to be treated for a spinal condition and is prescribed significant medication in relation thereto under the care of Dr Jigau who has previously referred her to two rheumatologists and arranged a range of spinal investigations.
271 I do not accept Dr Jigau has provided this treatment in the past or at the present time simply on the self-report of the plaintiff as counsel for the defendant submitted. As the plaintiff’s treater, having seen her regularly since 2013, Dr Jigau is in a particularly good position to comment on her condition and work capacity. Whilst there may be little objective radiology, I accept his conclusions about the plaintiff’s work incapacity.[91]
[91]T81
272 Further as counsel for the defendant conceded, Dr Jigau ultimately does “disentangle.” In my view as the plaintiff’s treater, he is competent to give an opinion on both the plaintiff’s physical and psychiatric condition.[92]
[92]T80
273 Of significance, Dr Entwisle found no evidence of pain behaviour when he examined the plaintiff in August 2017 and thought there was no incapacity for employment on psychiatric grounds.
Pain
274 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[93]
“… the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors); … .”
[93](supra) at paragraph [11]
275 In her affidavits, the plaintiff described her worst pain being in the middle of her back below the shoulder blades – some days being “awful.” In addition, several times a week, she gets a sharp pain in the lower back and a shooting pain down the left leg.
276 The plaintiff described her pain as fluctuating.[94] She is unable to predict with any certainty the degree of pain she would be in from day to day.[95]
[94]T94
[95]T95
277 There are numerous activities which the plaintiff avoids as they cause an increase in back pain. She has a limited sitting and standing tolerance, being able to sit for only a few minutes without increasing back pain. As a result, she is unable to drive for extended periods. She also has difficulty with bending and lifting and any other heavy tasks.
278 The plaintiff also has problems sleeping due to back pain
Treatment
279 The plaintiff has had a range of treatment for her spinal complaint including chiropractic treatment, physiotherapy and specialist referral.[96]
[96]T14
280 Treatment was initially from the work doctor, Dr Coptil, who prescribed Endone and Nurofen at the end of November 2012. The following year, the plaintiff started to see Dr Jigau who organised a lumbar CT scan in April 2013.
281 The plaintiff was also referred to physiotherapist, Mr Melamed, in May 2013. There was a CT scan of the cervical spine in March 2013 and on 27 September that year, the plaintiff started seeing Dr Morley, chiropractor.
282 The plaintiff was referred to rheumatologists, Dr Johns in March 2014 and Dr Feletar in July that year.
283 The following spinal investigations have been undertaken since 2013- MRI of the whole spine March 2014, MRI of the thoracic and lumbar spine July 2014 and an MRI of the lumbar, mid/lower thoracic spine August 2016.
284 The plaintiff’s painkilling medication regime is significant. She currently takes 200 milligrams of Palexia twice a day, 150 milligrams of Lyrica, and 5 milligrams of Diazepam twice a day, together with Panadeine Forte and Nurofen as required.
285 As Dodds-Streeton JA noted in Kelso v Tatiara Meat Company Pty Ltd,[97] where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[97][2007] VSCA 267 at paragraph [199]
Work
286 The plaintiff has had an excellent work history since her arrival in Australia in December 2002. She first gained employment as a process worker two months later and worked in that job for four and half years before starting with the employer in June 2008.
287 Having worked with the employer for six years, the plaintiff was initially off work completely because of her back condition between July and September 2014, and returned to light duties in October. She was off work for unrelated medical conditions and returned in early 2015, when she continued to do light duties until her employment was terminated as no suitable duties were available.
288 I accept the plaintiff was motivated to return to work. As Dr Jigau noted, she had significant difficulties doing so as the clinical notes of both Dr Jigau and the plaintiff’s physiotherapist confirm.
289 At the time her employment was terminated, the plaintiff was working only twenty hours per week on light duties. She was never able to resume full-time unrestricted duties after initially going off work in July 2014.
290 I accept, in these circumstances, the plaintiff was somewhat of a stoic, as her counsel submitted,[98] a view not shared by counsel for the defendant, who submitted the plaintiff had a high tolerance of medication and a very low tolerance of pain.[99]
[98]per Nettle JA in Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260 at paragraph [4]
[99]T76
291 Despite suffering back pain, the plaintiff kept working, paid for her own medical appointments, underwent investigations and then submitted a claim and an incident report in 2014.[100] Ultimately, after working for a period of modified and light duties, her employment was terminated in August 2015.
[100]T6
292 No medical practitioner is of the view the plaintiff has the capacity to engage in unrestricted heavy and physical work of the nature she performed pre injury. A number of practitioners, including her general practitioner consider the plaintiff has no capacity for suitable employment as a result of her back injury.
293 In my view, this situation, which results from the plaintiff’s ongoing back pain and restrictions, is a serious consequence.
Loss of earning capacity
294 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
295 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
296 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
297 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
298 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
299 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
300 I am therefore required to determine a “without injury” earnings figure.[101] The parties agreed that the appropriate “without injury” earnings figure is $544.59/ $550 per week.[102]
[101]See Barwon Spinners & Ors v Podolak (supra) at paragraph [70]
[102]T71
301 The only job put to the plaintiff in cross-examination was that of a packer. Working full time in the other suggested role of an electronics process worker, it was conceded she would still suffer the requisite loss being unable to earn in excess of $550 per week.[103]
[103]T87
302 However, if the plaintiff could work more than 23 hours a week as a packer, she would not suffer the requisite loss. Working 25 hours per week in this role, her application failed.[104]
[104]T87
303 Counsel for the defendant relied on Dr Baynes’ view following his initial examination of the plaintiff that both suggested jobs were suitable[105] and that when functional overlay was taken out, the plaintiff had a capacity for full time work.[106]
[105]T88
[106]T89
304 However, following re-examination of the plaintiff, whilst he confirmed the restrictions set out in his earlier report, Dr Baynes stated that he believed the plaintiff would be fit to return to these roles on a limited basis, working four hours, four days a week, with progression in hours up to about twenty to 25 hours per week, taking into account her history of chronic back pain which tended to wax and wane in severity.
305 Dr Bayne’s view that the plaintiff has the capacity to work up to 25 hours per week in the suggested jobs is clearly the highpoint of the defendant’s case as all other medical practitioners are either of the view the plaintiff has no capacity for suitable employment or has a lesser capacity than Dr Baynes opined.
306 Counsel for the plaintiff relied on Dr Jigau’s view in October 2017 that the plaintiff would never be able to return to pre injury duties, certifying her totally unfit on both psychiatric and physical grounds. Dr Aliashkevich and Mr Melamed agreed that the plaintiff has no capacity for suitable employment as a consequence of her back condition.
307 Whilst Dr Kennedy thought the plaintiff had the capacity to work 16 hours per week in very light work, if she was able to do so, the plaintiff clearly would earn below $550 per week and would suffer the requisite loss.[107]
[107]T116
308 Associate Professor Drago did not provide any view as to the plaintiff’s employment capacity, having last seen her in June 2016 nor did Mr Jones when he saw the plaintiff earlier this year.
309 When he saw the plaintiff in August this year, psychiatrist Dr Entwisle, thought there was no reason she could not work on psychiatric grounds.
310 Working as a packer for 20 hours per week ($24.53 per hour), the plaintiff would only earn $490 per week. To earn in excess of $550 per week, she would need to be able to work 23 hours per week and would then earn $564. Working less than 23 hours per week, the plaintiff would suffer the requisite loss.
311 The plaintiff has shown a willingness to work after her injury but was unable at any time to return to full time hours, able to work only 20 hours per week at the time her employment was terminated.
312 I accept that due to the nature and severity of her spinal pain, the plaintiff would not be a reliable employee and would be unable to attend work on a regular basis, let alone work anywhere near full-time hours. She would like to work but does not know when her pain is going to become more severe and at those times, she is capable of doing very little.
313 In these circumstances, I am satisfied the plaintiff is unable to earn in excess of $550 per week and has therefore suffered the requisite loss.
314 Whilst there has been the suggestion of pain management by a number of medical practitioners,[108] I am not satisfied that such a program would alter the plaintiff’s capacity for work to the point where she could achieve more hours per week even in the restricted employment that has been suggested.
[108]T3
315 Pain management is directed towards providing pain management strategies and I am not satisfied it is likely the use of such strategies would result in a significant diminution of the plaintiff’s pain and resultant restrictions which I accept are permanent having been ongoing since 2012.
316 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
317 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
318 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
319 Having found the plaintiff suffered a 40 per cent loss, she is entitled, also, to bring damages for pain and suffering.
320 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, for example both for pain and suffering and loss of earning capacity.[109]
[109]See Forrest J in Acir v Frosster Pty Ltd [2009] VSCA 454 and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
321 Given my findings in relation to this application under clause (a), it is not necessary to consider the application pursuant to clause (c).
322 Accordingly, I grant leave to the plaintiff to bring damages for pain and suffering and loss of earning capacity.
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