Velkovski v Stables Services Pty Ltd
[2018] VCC 217
•8 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-03612
| ROSEMARY VELKOVSKI | Plaintiff |
| v | |
| STABLES SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 March 2018 | |
DATE OF JUDGMENT: | 8 March 2018 | |
CASE MAY BE CITED AS: | Velkovski v Stables Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 217 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to cervical spine – injury to various other body functions - whether loss of 40 per cent of earning capacity – plaintiff’s capacity for post-injury employment – various areas of employment suggested in vocational reports – capacity to carry out the duties in a realistic way
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Combined Enterprises Pty Ltd v Brister [2016] VSC 807
Judgment: Leave to the plaintiff to bring proceedings in respect of pain and suffering and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley with Mr O T Lesage | Shine Lawyers |
| For the Defendant | Ms S De Guio | Minter Ellison |
HIS HONOUR:
Preliminary
1 Ms Velkovski suffered injury to various parts of her body, including her shoulders, elbows and cervical spine, in the course of her employment as a beautician, working for a pharmacy owned by the defendant, Stables Services Pty Ltd (“Stables”) over the period from December 2001 until 2014. The cervical spine is the body function the subject of this application. She claims the work required her to bend forward using an awkward posture in order to treat her clients with hair removal treatment by electrolysis. She had occasional aches and pains in the various areas, and by July 2014, the pain in her neck became acute and required medical treatment.
2 Ms Velkovski left work as a result of her injuries in August 2016, and she has not returned to any work since. She claims she has little, if any, capacity for employment.
3 Ms De Guio, for the defendant, sensibly conceded that the application was concerned only with work capacity, and that the pain and suffering consequences of injury met the statutory test as being “very considerable”. The real issue, thus, is the nature and extent of Ms Velkovski’s capacity for employment, and whether, as a result of injury to her cervical spine, she has suffered a 40 per cent loss of earning capacity.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Ms Velkovski’s employment with the defendant.
5 The application is brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering and loss of earning capacity.
6 Ms Velkovski was the only witness called to be cross-examined. In addition, her affidavits and medical, radiological and vocational assessments, were tendered into evidence. I shall not refer to all of this material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant, and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 Ms Velkovski is now fifty-four years of age and has two children. She finished Year 12 at high school then undertook and completed a Diploma in Beauty Therapy. For a number of years she worked in the Taxation office. From 1983 to 1985, she worked in duty-free retail stores, undertaking sales, administration and promotional work. She then worked in the beauty-products area at the David Jones retail store, which included the supervision of staff. In the course of cross-examination, she said that she was always successful in the areas of employment she undertook; increasing sales, and managing staff. She was knowledgeable and experienced in retail sales, and was relied upon by her employers to handle promotions of products and to assist in the administration of the various businesses. Her résumé was extensive and set out her various skills.[1]
[1]Defendant’s Court Book (“DCB 61”)
8 She then started her own beauty therapy business. She said she was a hard and loyal worker. She had low to moderate computer skills, but was able to use computer programs.
9 Ms Velkovski commenced employment with Stables at its pharmacy premises at Mill Park in December 2001. Her duties varied, and included ordering stock, taking bookings for appointments, cleaning, and administrative duties. Principally, she performed beauty therapy treatments, including hair removal, facials, waxing and body treatments. In the hair-removal treatment, she used an electrolysis machine.
10 She had no injuries of particular significance, although over the years up until July 2014, suffered aches and pains to her neck, shoulders, and elbows as a result of her work tasks. Before July 2014, she was working part time, twenty-six hours per week.
The injury to the cervical spine and its consequences, in particular, as to loss of earning capacity
11 The electrolysis treatment required a client to recline on an adjustable bed, and Ms Velkovski would bend and lean forward from the waist, while seated, to administer the treatment. She would use a probe with her right hand and work, in particular, around the head area. She used her left hand to steady the area under treatment. She said the posture was awkward and she was required to lean forward with her hands unsupported for long periods.
12 From July 2014, the pain in her neck and other areas became worse. She went to see her general practitioner, Dr Wines, in September 2014. He wrote to her employer, suggesting reduced lighter duties. In February 2015, she underwent a CT scan of her neck, which concluded:
“1. Degenerative disease of the cervical spine, worst at C5/6 where there is severe left and moderate right foraminal narrowing. There is also mild canal narrowing and mild flattening of the anterior cord surface at this level. No evidence of compressive myelopathy.
2. The rest of the neural exit foramen are mildly narrowed at several levels with no definite neural impingement.
3. Moderate/advanced facet arthropathy, left worst (sic) than right.”[2]
[2]PCB 19b
13 She commenced treatment with an osteopath in 2015.
14 She came under the care, then, of Dr John Kennedy. An MRI scan was performed in July 2015. The report was identical to the earlier CT scan.[3]
[3]It is likely it is the same investigation
15 In November 2015, she saw another general practitioner, Dr Amaninder Sekhon, of the Dalton Road Medical Centre, and has remained under his care since. She also received physiotherapy treatment.
16 She was referred to Dr Patrick Lo, neurosurgeon, who she first saw in February 2016. He could not identify neurological deficits on examination. He described the previous MRI scan as revealing a C5-6 left-sided broad-based disc and osteophyte complex, compressing the left C5 and C6 nerve roots. He recommended she reduce her working hours. He further recommended a steroid injection to the C6 nerve root, but Ms Velkovski was concerned and did not undertake the procedure.[4] Her conservative treatment continued under the care of Dr Sekhon, and she was referred back to Dr Lo in 2017. A further MRI scan revealed a slight worsening of the C5-6 disc/osteophyte complex which was said to cause cord and nerve compression. Dr Lo noted on 6 February 2018, that she was experiencing bilateral cervical C6 radiculopathy. He recommended continuing conservative treatment. Ms Velkovski continued to have reservations about nerve sheath injections despite his advice to have them.[5]
[4]PCB 39-40
[5]PCB 41d
17 In his report of 28 February 2018,[6] Dr Lo said that Ms Velkovski was restricted from full-time manual or pre-injury employment because of her cervical problems, which he said restricted her activities of daily living. He noted she did not want to go down the surgical path. He said she could not participate in activities that required:
“… heavy lifting, repetitive pulling/pushing/reaching of items, prolonged sitting or standing, sudden or excessive flexing and extending of the neck or raising the arms above the shoulder.”[7]
[6]PCB 41e
[7]PCB 41f
18 With these restrictions, Dr Lo said, Ms Velkovski would not be able to work as a vocational education teacher, or a sales representative. He said she could work as a retail manager, providing there was not a significant amount of lifting, carrying, pulling, bending, squatting or crouching. He said she could work as an education adviser and reviewer, providing she was not required to walk, sit or stand for prolonged periods. She could work as an information officer, as long as she was not required to lift, bend or twist her neck, or hold it in a prolonged state.[8]
[8]PCB 41e – 41f
19 She returned to see Dr Lo in February of this year, and according to her affidavit,[9] he raised the prospect of a fusion of the C5-6 discs in her spine. She said she could not bring herself to consider such surgery.
[9]PCB 16b
20 Despite the complaints of pain and restriction, Ms Velkovski remained working for the defendant. In September 2014, she had about a week off work. By May 2015, she was required to take medical leave. In October 2015, she attempted a gradual return-to-work program on modified duties. Her employment was terminated in August 2016, as she was medically incapable of carrying out her pre-injury work. She has not worked since.
21 According to her most recent affidavit, she says she suffers neck pain all the time, with tingling and numbness down to her arms and hands. Occasionally she suffers fierce shooting pain up into her head. Her neck is stiff and occasionally locks up. She takes Nurofen and Panadol for her neck pain. She does not take stronger medication as she is concerned about the risk of addiction. She sees Dr Sekhon every month or so and he continues to issue WorkCover Certificates of Capacity.[10] According to a Certificate of Capacity signed by Dr Sekhon and dated 27 February 2018, he certified her as being fit for restricted duties:
[10]PCB 16b – 16c
“AVOID REPETITIVE LIFTING > 3 KGS/PULLING/PUSHING.
AVOID REPETITIVE TWISTING OF NECK
NO FORCEFUL GRIPPING AND HOLDING
TAKE BREAKS EVERY 30 MINUTES FOR -3 MINS
3 HRS SHIFTS FOR NOW
AVOID SHELF LOADING
CAN DO CUSTOMER SERVICE/TILL OPERATOR/ANSWER
PHONES/GREET CUSTOMERS/ASSISTING WITH CUSTOMERS.”[11]
[11]PCB 38a – 38b
22 She says she misses working as a beautician and the social connection it brought. She says she has unsuccessfully applied for “many jobs”. These have been for various retail positions, including Prouds Jewellers, who offered her a job and then withdrew the offer, and Rockman’s Clothing Store. She has attended ten or so interviews, but when she tells the prospective employer that she is recovering from work injuries, they are not interested. She said she could not remember providing a history to the vocational group, CoWork Pty Ltd, where she is alleged to have said that she was waiting for the case to be completed before considering what else to do with her life, including the possibility of starting a business.[12]
[12]DCB 43
23 Towards the end of 2017, Ms Velkovski obtained a Certificate IV in Training and Assessment from Livingstone Institute of Vocational Training. She said this was a six-month online course, but took her a year to complete, as she found it difficult to sit at the computer for long periods of time. The certification may help train her in becoming a teacher in beauty therapy. In the course of cross-examination, she was taken to various jobs which had been suggested in vocational reports, including that of a “mystery shopper”.[13] She said she was uncertain what the job would entail. As to a position as a sales assistant, she said she had tried to obtain a job in the lingerie section of a store, but was not successful. She said it was hard to sit and stand for long periods. She was uncertain whether she could work as a sales assistant. She did not think she could work as a receptionist, as it would require her to sit or stand constantly with her arms outstretched. In relation to a sales demonstrator, she said if the work was light and she could have breaks, she might possibly undertake such work. She said it was hard to look down and chop vegetables. As to a position as a sales assistant in a pharmacy, an area with which she is familiar, she could do it if she was required only to work for a short period of time, and without lifting objects or stacking shelves. If it involved only working at a cash register, she would try it.
[13]DCB 47
24 As to a salon manager in a beauty or hairdressing salon, she said she would not be able to do that work. If it was just directing staff, she would try it. She accepted that she may be able to work as a vocational teacher, as she was qualified, but she thought there was a lot of typing and data entry involved, which she would not be able to do. If the job involved simply talking, and it was part time, she thought she would be able to undertake it. In relation to work as a retail manager, she did not think she could work on a full-time basis. She could not work as a sales representative if it required her to walk or drive longer distances. Such positions involved lifting displays. She may be able to work as an information officer if the work was light and part time.
25 In re-examination, she said that it was hard to sit at a computer and concentrate for long periods of time. Driving was difficult as her neck locks up and her movements are restricted. She said it was hard to sit for periods of longer than half an hour. In any teaching role, if she was required to make a physical demonstration with beauty apparatus, then she would not be able to do it. She would not be able to return to hair removal work. She could set up instruments provided they were not heavy, nor the work repetitive. She said it was difficult to get a full night’s sleep and so she was tired in the morning. She said she would not be able to turn up to her employment at 9.00am in the morning. She would not be able to write notes or prepare a report on her computer. She could not check stock on shelves.
26 She said she could not be reliable or punctual. She had medical advice that she was restricted in lifting from 3 to 5 kilograms, and not above shoulder height. Anything involving lifting of items would be too difficult, including replacing stock. Any job involving management of staff would mean working full time and helping from time to time. She accepted that she was good with people and an excellent communicator. Answering phones was not a problem, but having to sit for long periods was. She disagreed that she was now not motivated to obtain employment and, financially, she needed to earn an income.
27 According to her affidavit, she said there was not a job she was aware of which she could do on a regular basis. She was concerned that if she had a flare-up, she would have to leave work and not be reliable. She said sleep was a problem and she had a lot of difficulty finding a comfortable position. That led to her being tired and unable to concentrate during the day.
Consultant medical opinions
28 Ms Velkovski was examined by Mr Ishfaq Hussaini, orthopaedic surgeon, in February 2016. She informed him he was then on modified duties at work, and not coping. His report was concerned largely with Ms Velkovski’s shoulder injuries.[14]
[14]PCB 43-45
29 She was examined by Dr Clayton Thomas, rehabilitation and pain management specialist, in June 2017,[15] and again in February 2018.[16] He thought her various injuries were work related and her condition stable. In his first report, he said that she “certainly” had a work capacity. The predominant problem, Dr Thomas observed, was to avoid using her outstretched arms under load. She was capable of working in a sedentary position.[17] He thought she could work in training and assessment, but not retail management, as it involved selection and moving of stock. He was not certain whether she could work as an education adviser as she did not have the skills. Likewise, an education reviewer. A position as a sales representative would depend upon the products involved. He said that if there was no prolonged driving beyond twenty minutes, she would be able to work in a sales role, providing the work was light and was no more than eighteen hours per week.[18]
[15]PCB 46-51
[16]PCB 42-57
[17]PCB 48
[18]PCB 48
30 When she saw Dr Thomas in February of this year, she again complained of pain in the neck and both upper arms. She had poor sleep and the avoided heavier domestic chores. He considered that her neck symptoms were consistent with the spondylosis in her cervical spine shown on the MRI scans. He considered that she was highly motivated in her attempts at rehabilitation and he continued in the view that she had a capacity for suitable employment. He noted that she was articulate and able to present herself well. He said:
“She could not work in a position where she had to have the arms outstretched, let alone outstretched for static periods of time. This would clearly lead to an aggravation of her condition. Once developed, these aggravations do not always settle. This has been the case for her.”[19]
[19]PCB 54
31 His opinion as to her capacity for employment in the various areas suggested remained unchanged. He said:
“An ideal position would be one in which she is doing light retail work, for instance, in cosmetics or beauty products in which there is no requirement to stock or unstock the shelves. The requirement is primarily to deal with customers, show various light products. In such a capacity, she could work 18 hours per week in a stable, reliable manner.
The reality of retail, however, is that stock selection is often required and depending on the extent of this, this is likely to lead to an aggravation of the condition. The hours would be a maximum of 18 hours per week and more limited pending the exact position and the physical requirements of that position, The length of time driving to and from a position of work would also be a factor here.”[20]
[20]PCB 55
32 Ms Velkovski was examined in June 2017[21] and February 2018[22] by Dr Joseph Slesenger, occupational physician. She complained to that practitioner of ongoing pain in her cervical spine, which was constant, and which restricted all movements of her neck. The pain was aggravated by lifting light weights or repetitive neck work. He diagnosed a soft-tissue injury to the cervical spine, being an aggravation of underlying degenerative disease. He noted she was taking Panadol, Mobic and Nurofen, together with homeopathic treatments. He noted she was attending for osteopathy treatments each month or so. He was asked to consider the suitability of the various areas of employment identified in the report of Accelerait of February 2017.[23] He was of the view Ms Velkovski had a capacity for work, with restrictions including:
[21]PCB 58-72
[22]PCB 73-87
[23]DCB 117-129
·no over-shoulder reaching
·no push, pull, carry or lift over 5 kilograms
·no repetitive neck work
·no sustained static neck postures
·no fast-repetitive wrist tasks
·no sustained forceful wrist flexion
·no exposure to vibratory tools.[24]
[24]PCB 86
33 He considered a cautious approach be taken to work as a vocational education teacher as it may require demonstrations and manual handling. He thought work as a retail manager was inappropriate, likewise as an education adviser and reviewer, as she did not have the relevant experience. He suggested a cautious approach be taken in respect of a sales representative, as it would depend upon the job demands. In relation to information officer, he said:
“I am generally optimistic with regard to her capacity to return to work in this role and I note that she describes herself as having basic to moderate computer skills and I am of the opinion that whilst she does not have experience within this role, her past occupational experience is likely to assist to transferring into this role.”[25]
[25]PCB 86
34 Dr Slesenger considered that Ms Velkovski had not reached “maximum medical improvement” and suggested a multidisciplinary rehabilitation program may be appropriate. Nevertheless, he thought she was “approaching a position of maximum medical improvement”.[26]
[26]PCB 85
35 Ms Velkovski was examined by Mr Peter Scott, surgeon, in March 2006. As to her work capacity, he said:
“The worker is fit for part-time work which does not require free range of movement of either shoulder and which does not require her to perform any pulling or pushing movements, or lifting more than a few kilograms in weight with either shoulder. She is certainly not fit for any work which requires her to reach above shoulder level for any length of time. She does find difficulty in shelf-stacking because of this problem.
She is fit for very light work only with the restrictions described above, working part-time.”[27]
[27]DCB 5
36 His assessment would appear principally related to the problems with her shoulders, rather than with the cervical spine.
37 Finally, Ms Velkovski was examined by Dr Daniel Lewis, rheumatologist, in October 2017.[28] He received a history of pain and restricted movement in the neck, as well as the left and right shoulder. She said that, functionally, she was independent of all tasks of personal grooming and able to shower and dress without difficulty. He said she could drive a car for a maximum of an hour, but does have difficulty holding a steering wheel. She was able to sit for thirty minutes before her neck and back locked up, and was able to walk for twenty minutes. He described her as suffering multilevel cervical disc degeneration and osteoarthritis which, together with the pain and restriction in her shoulders, had led to a Mixed Pain Disorder. He noted she was then currently studying for her Certificate IV in Training and Assessment.
[28]DCB 21-29
38 According to Dr Lewis, Ms Velkovski said that she considered she had the capacity to do customer service or office-based work on a part-time basis. He thought work as a retail assistant would be beyond her physical capacity. He said she would be unlikely to be able to work on a full-time basis, but with appropriate treatment her functional capacity would increase significantly. He thought she had a demonstrated capacity to undertake suitable sedentary activities such as customer service or office assistant on a part-time basis.[29]
[29]PCB 28
39 The defendant tendered into evidence various vocational assessment reports, including the Accelerait Vocational Assessment Report of 24 February 2017,[30] and CoWork Pty Ltd report of 17 January 2018.[31] It is not necessary to review these reports in detail. Their purpose is to identify areas of employment, and tasks involved, for comment by the various medical practitioners.
[30]DCB 117-132
[31]DCB 30-81
Submissions of the parties
40 On behalf of the plaintiff, Mr Stanley submitted that, realistically, Ms Velkovski had no work capacity. Even if it could be said she had some part-time capacity for restricted duties, that capacity, when reflected in earnings, was significantly less than $417 gross per week. He said it was necessary to consider the definition of “suitable employment” as contained in the Act, in particular, the nature and extent of the restrictions imposed by her cervical spine injury, and her experience in the workplace. It was significant, he submitted, that the defendant had conceded that the consequences of injury had met the test as to pain and suffering.
41 He said, on all of the medical evidence, Ms Velkovski had suffered a significant neck injury, as evidenced by the radiology, and with nerve compression. There was consideration given by Dr Lo to surgical decompression. He submitted the plaintiff presented as an honest witness, although colourful in her description of the injury and its effect upon her. He said she was not challenged to any significant extent as to the nature of her incapacity as set out in her affidavits, nor, generally, as to her credibility. He noted she had a strong work history with the defendant going back fifteen years, and was motivated to rehabilitate and return to employment.
42 He said that all of the medical evidence pointed to significant restrictions and her capacity for part-time work. The recent certificate of work capacity from the general practitioner noted her work hours were restricted to three hours per day, or fifteen hours per week. The treating neurosurgeon, Dr Lo, imposed a range of restrictions on any area of employment. Dr Slesenger initially referred to part-time work limited to four hours a day, three non-consecutive days per week, although his subsequent report did not refer to a reduction in hours. Likewise, Dr Thomas imposed considerable restrictions. He submitted that there was an evidentiary onus on the defendant to show that there were jobs which existed in the marketplace for which Ms Velkovski had work capacity. He referred to Combined Enterprises Pty Ltd v Brister,[32] in particular, Keogh J’s criticism of the vocational report where his Honour said that the report writer did not identify any actual job which was said to be suitable, but relied upon computer searches to make generic comments.[33]
[32][2016] VSC 807
[33]Combined Enterprises Pty Ltd v Brister (supra) at paragraph [47(b)]
43 On behalf of the defendant, Ms De Guio said that every doctor who had examined the plaintiff, both treating and consultant, said she had a capacity for employment within certain hours and restrictions. She said the reference in the work capacity certificate of the general practitioner to “three hour shifts for now” was unclear and it ought not be accepted as meaning three hours per day, five days per week. She noted Dr Lo did not suggest any restriction in hours, and he said Ms Velkovski had the capacity for work in certain areas. She referred to the opinions of Dr Thomas, that Ms Velkovski could work in suitable employment for eighteen hours per week, and said that in Dr Slesenger’s second report there was no reference to any restriction in hours, but rather in the areas of employment.
44 Ms De Guio said the plaintiff was well qualified and with a range of impressive attributes, including her capacity to work with people in the beauty and retail area. She emphasised there are a range of jobs available to the plaintiff which, even accepting she had a capacity for eighteen hours per day, meant that she did not meet the 40 per cent loss of work capacity.
Analysis
45 There is no issue the injury to the plaintiff’s cervical spine was significant and resulted in consequences to her sufficient to satisfy the pain and suffering threshold. I am satisfied there is clear evidence on the radiology of a significant condition in Ms Velkovski’s cervical spine, including aggravation of underlying degenerative disease and compression on the exiting nerve roots at C5-6. I am satisfied that this has resulted in a range of restrictions in her domestic and recreational activities.
46 The real questions to be answered are the nature and extent of Ms Velkovski’s work capacity for suitable employment and, on the evidence as a whole, both lay and medical, whether she has suffered a reduction in her work capacity of 40 per cent or more. The onus is upon the plaintiff in that regard.
47 Mr Stanley submitted I ought to accept, without reservation, the evidence of the plaintiff, both on affidavit and in the course of examination and cross-examination. He emphasised there were no major credit issues put to her, which I accept, and the reference in the Defendant’s Court Book index to surveillance video, and that none was shown in Court.
48 Notwithstanding these submissions, I did not find Ms Velkovski a particularly satisfactory witness. She was colourful and voluble throughout her evidence. I assessed her as a witness concerned to describe her injury and consequences in the best possible light to assist her cause. While I do not suggest she was openly dishonest, I formed the view that she was prepared to exaggerate, in particular, the effect of her neck injury upon her work capacity. I found her description in the early part of her cross-examination as a person who, through skill, endeavour and hard work, had improved every business with which she had been associated, that she was regularly promoted, and that she had always been in charge of other employees in every job she had managed, to be an exaggeration. She said that she was one of the highest money makers in the businesses for which she worked.
49 Against this should be balanced the fact that she has a strong history of employment, fifteen years with the defendant, and has at least attempted to apply for a number of jobs in an effort to return to the workforce. Dr Thomas’ assessment that she has made real efforts to rehabilitate herself is important.
50 In my view, given the reservations I have as to her credibility and reliability, the determination of the plaintiff’s work capacity should be largely based upon the opinions of the various treating and consulting practitioners who have examined Ms Velkovski. While I bear in mind her evidence, I do not rely on it to any significant extent in this assessment.
51 I did not find the opinions of Mr Scott of significant assistance. His enquiry related mostly to the injury to her shoulders. Likewise, the report of Dr Hussaini did not provide much assistance. Dr Lewis considered Ms Velkovski could not work full time, nor as a retail assistant, but could undertake administrative duties. None of the proposed areas of employment in the several vocational assessment reports were submitted to Mr Scott or Dr Lewis.
52 Dr Sekhon, the general practitioner, thought her current capacity was limited to part-time administrative roles, with regular breaks, and without repetitive movements. He said she should not work above shoulder height. It is difficult to know what to make of his most recent medical certificate, which refers to “three-hour shifts for now”.[34] I accept Ms De Guio’s submission that that certificate is sufficiently uncertain as to be unreliable. I am not sure whether that means a three-hour shift per day, or several times a day, or something else.
[34]PCB 38(a)-(b)
53 Dr Lo’s opinion should be respected, given he is the treating neurosurgeon. I accept his opinion as to the restriction in the work activities he says Ms Velkovski can perform. I accept his view she could not work as a vocational education teacher or sales representative, but may have the capacity to work as a retail manager, an education adviser or reviewer, or information officer, depending on what was involved in any particular job. Dr Lo did not appear to place any restriction on the hours of work Ms Velkovski could undertake. However, I do not accept, in the context of the report, that he has endorsed her as fit to work full time.
54 The reports of Dr Thomas and Dr Slesenger are impressive. They are both well-qualified and experienced in the matter of assessment of work capacity. It is significant to note that Dr Thomas said that Ms Velkovski “certainly” had a work capacity, providing she was not required to work with her hands outstretched and under load. Dr Thomas did not think Ms Velkovski could work as a retail manager. He said she could work in training and assessment. Work as an education adviser or reviewer was possible, although he did not think she had the skills. Work as a sales representative would depend upon the product to be sold and the travelling involved. In his second report, he said that light retail work, such as selling beauty products, and where she was required to deal primarily with customers for eighteen hours, would be suitable, although driving to and from work would have to be factored in. Unfortunately, he was not provided with the full report of Accelerait of 24 February 2017 and the tasks of the various areas of employment suggested, and although, in his second report, he was provided with the CoWork Pty Ltd report of 17 January 2018, he did not specifically comment on the jobs identified in it.
55 Dr Slesenger was optimistic about the prospect of Ms Velkovski working as an information officer, although was cautious about the various other areas of employment. There is no reference in his second report to there being a restriction on the hours of work; however, a reading of that report with his previous assessment, does not suggest he had intended to convey the plaintiff as having the capacity for full-time employment. Almost every other doctor has suggested restricted hours of employment.
56 Bearing in mind the various opinions, and my consideration that those of most significance are those of Doctors Lo, Thomas and Slesenger, I am satisfied that Ms Velkovski does have the capacity for approximately eighteen hours’ employment per week, in accordance with Dr Thomas’ opinion. But that is not the end of the matter. Eighteen hours employment as what?
57 What is significant in the reports of all of the practitioners is the very extensive restrictions they place upon any work duties. These include restrictions in sitting and standing for longer periods of time, for lifting anything other than light weights, and not on a repetitive basis. Most practitioners think she could not be involved in stacking shelves. In particular, said Mr Thomas, she could not use her hands in any outstretched manner. This would make it difficult for her to undertake any demonstrations as a beauty teacher, or work in a sales area which required handling of products. Dr Lo referred to restrictions in pulling, pushing and reaching, prolonged sitting and standing, and anything that involved extension or flexion of her neck, or raising her arms above her shoulders. I accept Dr Sekhon’s opinion that she would require breaks every thirty minutes. When an overview is taken of the restrictions recommended by the various practitioners, they are, indeed, extensive.
58 Ms De Guio’s submission is, that if I was to accept Ms Velkovski had the capacity for eighteen hours of work per week, there are jobs identified in the vocational assessments which various medical practitioners have said Ms Velkovski has the capacity to undertake, and so that is the end of the matter. That is, Ms Velkovski has the capacity to undertake work which would be productive of earnings of more than 60 per cent of the agreed “without injury” earnings. However, I am not satisfied that it is as simple as that.
59 There are differing opinions amongst the various medical practitioners as to whether Ms Velkovski is able to undertake the tasks in the various jobs to which they have been referred. Even in respect of those areas of employment where they say there is capacity, most suggest a cautious approach. Most say that much will depend upon the particular jobs involved. Dr Thomas spoke of a light retail job in the area of cosmetics or beauty therapy. However, he qualifies this by saying it must be a job where she would not be required to lift and stack shelves but, rather, primarily deal with customers and light products. To this should be factored driving time. In almost every job which has been suggested, there are any array of qualifications.
60 To these various restrictions should be added Ms Velkovski’s ability to be a reliable and consistent employee. I am satisfied, from the various medical opinions, that Ms Velkovski suffers flare-ups from time to time, depending upon the activities in which she is involved. Any flare-ups would need to be accommodated, and would likely cause her to be somewhat unreliable. I further accept the medical opinions that her sleep is disturbed and that would lead to her having difficulties with attending work on time, and to be able to concentrate on the tasks in hand.
61 In my view, this case is an example of the difficulty in making a precise mathematical calculation in accordance with the formula referred to in s134AB(38)(e) and s134AB(38)(f). One must have regard to the realities of the workplace and the restrictions imposed upon a person in Ms Velkovski’s position with a significant neck injury – the pain, the flare-ups, her reliability, and the long list of restrictions imposed upon her capacity by the medical practitioners – all reflect as indicating a person having a very limited realistic capacity for employment. All in all, I am satisfied that as a result of her cervical spine injury, her employment capacity has been reduced by more than 40 per cent. While she may have the capacity for eighteen hours per week, to work in some of the areas of employment as suggested, that is not a reliable long-term capacity and somewhat unrealistic in the true employment world.
62 For these reasons, Ms Velkovski’s application as to economic loss succeeds. Pain and suffering consequences are conceded.
63 I shall make appropriate orders.
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