Visic v Polyfoam Australia Pty Ltd
[2010] VCC 1730
•30 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00555
| LJILJA VISIC | Plaintiff |
| v | |
| POLYFOAM AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10, 11 and 12 November 2010 |
| DATE OF JUDGMENT: | 30 November 2010 |
| CASE MAY BE CITED AS: | Visic v Polyfoam Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1730 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – impairment of the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC and | Zaparas Lawyers |
| Mr B Chessell | ||
| For the Defendant | Mr A Ramsey | Wisewould Mahony |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment on 23 January 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
4 The body function relied upon in this case is the lumbar spine.
Outline of Section 134AB
(i) 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;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vi) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(vii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(viii) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(ix) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. Further, Mr Barrett and Mr Malham were required for cross- examination.
6 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
7 The plaintiff is presently aged forty one, having been born on 13 February 1969 in Yugoslavia.
8 She completed secondary school and then had two years’ training in hospitality. She worked for two years as a waitress. She emigrated to Serbia as a refugee, where she spent eight months and then spent two years in Montenegro, also as a refugee.
9 In March 1998, the plaintiff relocated to Melbourne at the age of twenty nine. She is presently married with one son, who is now aged six.
10 On arrival in Australia, the plaintiff did various English courses to provide her with basic English, before she started work with the defendant on 15 April 1999.
11 The plaintiff worked for the defendant as a process worker until 2003, when she took a year’s maternity leave. On her return to work the following year, she was employed by the defendant as a product controller and process worker.
12 At that time, the plaintiff usually worked daily shifts from 6.00 am and 2.00 pm and, on average, she worked two hours’ overtime a week, earning approximately $750 gross per week.
Summary of the Plaintiff’s Earnings in Form A
Financial Year Gross Earnings 2003-04 $19,923 2004-05 $17,745 2005-06 $33,674 2006-07 $28,120 2007-08 $33,653
13 On the said date, when trying to loosen a bolt to adjust the height of the table upon which she was working, the plaintiff felt a sharp pain in her lower back (“the incident”).
14 The plaintiff continued to work for a few hours after the incident, hoping her discomfort would go away, but she had to stop work as she was in too much pain.
15 The plaintiff told the defendant’s manager of her difficulties and she went home. Later that afternoon, the plaintiff attended the Casey Super Clinic, where she was given pain medication and time off work by Dr Hussain.
16 Dr Hussain referred the plaintiff for a CT scan of her back, which took place on 24 January 2008.
17 The plaintiff returned to work on 7 February 2008 on light duties, working four hours a day, five days a week in quality control. The work was light, there was no bending and the plaintiff coped reasonably well.
18 On 1 March 2008, the plaintiff’s hours were increased to five a day, five days a week. After about six weeks her job was changed. She was given work operating machines making polystyrene boxes and lids, which she had to pick up, after they were expelled from a machine, and then stack them on a pallet.
19 As a result of that work, which involved bending and twisting, the plaintiff developed left leg pain, as well as increased back pain.
20 On 17 March 2008, the plaintiff’s hours were increased to six a day. At that time she was having increasing back and left leg pain.
21 On 14 April 2008, Dr Hussain reduced the plaintiff’s hours to five hours a day, which she continued, but she required painkillers and her back pain worsened.
22 Dr Hussain referred the plaintiff to a physiotherapist, Mr Alby, whom she saw twice a week, but that treatment increased the plaintiff’s back pain. Mr Alby suggested to Dr Hussain that the plaintiff have an MRI scan of her back, which was carried out on 15 May 2008.
23 The plaintiff’s pain worsened. She decided to obtain a further medical opinion and on 6 June 2008, she went to see her husband’s doctor, Dr Pjesivac, who spoke her language.
24 In cross-examination, the plaintiff explained that she changed general practitioners because she had not been referred to a specialist and she wanted a second opinion.
25 At that time, Dr Pjesivac reduced the plaintiff’s working hours to four hours a day, three days a week. He also referred her to Mr Barrett, an orthopaedic surgeon, whom the plaintiff first saw on 17 June 2008.
26 Mr Barrett explained to the plaintiff that she had damaged a disc in her back. He told her any physiotherapy should be gentle and that she should stop work and see how her back progressed. He put the plaintiff off work at that time and she has not worked since.
27 In cross-examination, the plaintiff said that before she was injured, “it was her opinion to give work her best”. She thought she would work until she got a pension.
28 In July 2008, the plaintiff saw another neurosurgeon, Mr Nye, on behalf of the defendant. He told her she should stop physiotherapy.
29 As the plaintiff’s back pain worsened, Dr Pjesivac suggested she try chiropractic treatment. The plaintiff attended Mr Turdia for such treatment three times a week for a few months, then twice a week for a few months, then once a week until February 2009. However, that treatment only provided the plaintiff with temporary relief.
30 The plaintiff was referred back to Mr Barrett on 4 February 2009, at which time he told her to stop all chiropractic treatment. He also referred her to Mr Malham, another neurosurgeon, whom she saw on 27 February 2009.
31 Mr Malham organised a further MRI scan of the plaintiff’s back, taken on 28 March 2009.
32 When the plaintiff saw Mr Nye again for medico-legal purposes on 6 April 2009, he suggested back surgery might be a good idea.
33 The plaintiff then saw Mr Malham again on 22 May 2009 and he also suggested back surgery which involved placing an artificial disc in her back. He was optimistic but could not guarantee the result of that procedure. The plaintiff was unsure what to do as she was scared of undergoing surgery.
34 At that time, the plaintiff was becoming anxious about her condition and she was referred by Dr Pjesivac to Ms Stefanovic, psychologist, whom the plaintiff commenced to see monthly in May 2009.
35 The plaintiff continues to see Dr Pjesivac about two or three times each month, and she sees Ms Stefanovic for counselling approximately once or twice a month.
36 The plaintiff currently takes between one to two tablets of Panadeine Forte most days for her back pain prescribed by Dr Pjesivac. She tries to avoid taking this medication because it upsets her stomach and she does not want to become dependent on it.
37 The plaintiff takes either Panadol or Nurofen on days that she does not take Panadeine Forte. She also takes 40 milligrams of Somac per day for heartburn relief and Alprox, 50 milligrams per day, as an anti-depressant medication.
38 The plaintiff’s back pain is made worse by any repetitive or significant bending or twisting.
39 On Mr Nye’s suggestion, the plaintiff walks as much as she can, walking most days around the local streets and in a small park near where she lives. She usually walks for about twenty minutes, but on a day or two a week her back pain is much worse and any movement is painful so she tries to avoid walking on those days.
40 After walking for about half an hour, the plaintiff usually has increased back discomfort. The plaintiff now walks more slowly than she used to and avoids steps and slopes. Going down is particularly difficult. The twisting and balancing going down steps seems to increase her back pain, particularly when she puts her heel on a lower step.
41 In cross-examination, the plaintiff confirmed she sometimes can walk for longer than twenty minutes and sometimes less, depending on her pain.
42 The plaintiff explained she cannot do heavy lifting with shopping or pushing a trolley around. Sometimes she can carry the bread and the milk in a light bag. Sometimes even those movements, lifting light things, produced pain.
43 Standing in one spot is also uncomfortable and it is better if the plaintiff is moving around when she can alter the stress on her back. Sitting for more than about fifteen minutes is increasingly painful and the plaintiff needs to move around in her seat and eventually stand up. She can drive for about twenty minutes at a time before she needs to take a break as prolonged sitting is too uncomfortable.
44 The plaintiff cannot lift her son into the car and she has to be careful getting in and out of the car herself. She sits down in the car first then brings in her legs, and gets out in a reverse manner.
45 It is hard for the plaintiff to get comfortable to go to sleep. She wakes most nights because of back pain as she believes she has twisted her back in her sleep. She usually puts a pillow between her legs, as her doctor suggested, but it usually moves in the night. The plaintiff also uses heat packs most nights and also during the day, most often in the afternoons and evenings, which seem to relax her back muscles.
46 The plaintiff’s back pain seems to be worse in colder weather. She gets up during the night once or twice a week because she is uncomfortable and she then usually reheats the heat pack and watches television.
47 The plaintiff’s back is always stiff in the morning, but usually worse in the afternoon and evening. She has a hot shower in the morning, which seems to loosen her back up. The plaintiff has difficulty towelling herself dry after a shower.
48 The plaintiff can wash her hair in the shower, but relies on her hairdresser to do any colouring or setting which she used to do herself.
49 The plaintiff also has assistance from her cousin to help her shave her legs because of the bending involved in that task. The plaintiff dresses slowly. She rarely wears pantyhose because they are too hard to get on and off because of her back pain. She puts on pants whilst sitting down.
50 Sneezing increases her back pain.
51 The plaintiff does most of the cooking at home, but after ten minutes she needs to stop cooking and rest. She has organised her kitchen so that she does not usually have to bend. She only cooks simple things.
52 The plaintiff can squat down but tries to avoid doing so as it is particularly painful getting up and causes increased pain in her back and left side.
53 The plaintiff does some light housework and her husband helps as much as he can. She can put washing in the machine but puts most of the washed clothes on an inside clothes horse to dry. Her cousin helps her with the housework and does the vacuuming and other heavier chores. The plaintiff can do lesser tasks.
54 The plaintiff used to maintain the garden and dig flower beds, tend the vegetable patch and prune the roses, and even mowed the lawn. Now, a friend mows the lawn and looks after the garden.
55 Since the incident, the plaintiff finds socialising difficult because of constant pain and she finds it difficult to relax because of discomfort. When the pain is worse, it is even a strain to follow conversation. The plaintiff only goes out if she feels she has to. She worries about her future, particularly whether she should have surgery.
56 The plaintiff deposed in October 2009 that she had low back pain spreading into her left buttock and left upper leg all the time and intermittently she got a stabbing feeling in the left lower front of her leg and the top of her left foot. She also got occasional cramping discomfort in her left calf.
57 The plaintiff deposed on 10 November 2010 that her pain had worsened since her earlier affidavit. It remains the case that her lower back is stiff in the morning and the pain is usually worse in the afternoon and evening. Her left upper leg has not worsened to the same extent as her low back pain, but it has not improved.
58 The plaintiff is worried about whether she should have back surgery and is very concerned about the associated risks. Part of that concern stems from her husband’s operation in or about May 2002, following his 2000 work injury. Despite surgery, his condition remains very poor and he experiences low back pain and is unable to work.
59 Whilst the plaintiff understands the surgery that she would have is different to her husband’s surgery, she is concerned her condition may worsen if she has surgery and that there will not be anyone able to care for her son.
60 The plaintiff’s weekly payments were terminated in July 2010 and her claim is the subject of conciliation. WorkCover is still paying for her medical expenses.
61 Before being shown video surveillance, the plaintiff agreed she had taken her young son to birthday parties at ten pin bowling centres on two occasions. She gave her him help to push the ball as he had not been bowling before.
62 The plaintiff agreed that she had to stand for twenty or thirty minutes during the bowling party. She said sometimes she could stand for fifteen minutes and sit sometimes for twenty to thirty minutes, depending on her pain.
63 The plaintiff was then shown video footage taken of her attending the Waverley Gardens Bowl on 1 November 2009. There was also very short video footage taken on 20 April, 22 April and 27 April 2010.
64 When it was suggested to the plaintiff she was shown moving freely at the Bowl without any apparent difficulty or pain, she said that was not true. She took Panadeine Forte before she got to the Bowl, and it worked for a couple of hours.
65 The plaintiff agreed she had travelled twenty minutes in the car to the Bowl, but she did not drive there. When asked about sitting for this time she explained:
“Sometimes feel better, sometimes worse, depends how the pain is, or
how long the tablets work.”
66 When it was suggested to the plaintiff she was shown bending without difficulty, she said:
“Yes, sometimes, but not all the time.”
67 When it was suggested to her that her movements were full and free without apparent pain, she said to the defendant’s counsel:
“You think that - I don’t think like that. I got the pain. It’s there. Just
sometimes took the tablets feel better.”
[sic]
68 The plaintiff denied that she exaggerated her limitations when she saw doctors. She explained that sometimes she feels better and sometimes worse:
“It depends on the pain and how much tablets. It is not the same every
day.”
The Plaintiff’s Medical Evidence
69 The plaintiff first presented to Dr Pjesivac’s clinic on 6 June 2008 with a six month history of severe low back pain. She advised him of the incident on the said date.
70 On examination, initially the plaintiff appeared in mild distress, complaining of lower back pain radiating to her left leg. Straight leg raising tests were positive bilaterally. There was no neurological deficit identified and her reflexes were symmetrical and normal.
71 The plaintiff was referred to Mr Barrett, who then referred her to Mr Malham, who organised an MRI investigation to be performed in March 2009 which confirmed significant pathology at L4-5 with disc degeneration and a central disc protrusion associated with bilateral foraminal stenosis.
72 On 30 April 2009, the plaintiff attended Dr Pjesivac complaining of ongoing severe low back pain with bilateral sciatica. She had also developed insomnia, anhedonia and poor concentration as a result of her ongoing low back pain, sciatica and frequent nocturnal exacerbations. She was referred to a psychologist.
73 In his initial report of 5 May 2009, Dr Pjesivac said no non work factors had been identified, nor was there any functional overlay and exaggeration in the plaintiff’s presentation. He thought the plaintiff was unable to perform work at that time and was most likely to remain so in the foreseeable future. He thought she was in need of ongoing physiotherapy and psychotherapy to maintain her current level of function.
74 Dr Pjesivac completed a questionnaire on 23 December 2009 in which he recommended continuing treatment of that nature.
75 Dr Pjesivac most recently reported on 26 October 2010. He advised that, since May 2009, the plaintiff had attended on multiple occasions complaining of low back pain, bilateral sciatica and depression caused by an L4-5 discogenic injury with left L5 radicular pain as a consequence of the incident at work.
76 Dr Pjesivac noted that the plaintiff had, since that time, been reviewed by Mr Barrett and assessed by Dr Raghav, clinical neurologist, for a medical condition not related to her current WorkCover injury. She had seen Dr Das, consultant psychiatrist, with regard to her depression and also neurosurgeons Mr Nye and Mr Malham with regard to her ongoing low back pain.
77 Dr Pjesivac reported that despite all efforts, the plaintiff had not demonstrated any significant improvement in her current condition. She continued complaining of her lower back pain radiating out to both buttocks, particularly on the left, and pain into the left posterior thigh to the lateral calf as far as the left foot, corresponding with the distribution of the left L5 nerve root.
78 The plaintiff reported aggravation of pain by prolonged movement. Her symptoms were somewhat eased by taking analgesics and anti- inflammatories. Dr Pjesivac noted, unfortunately, the plaintiff could not manage any significant or heavy housework or heavy shopping because of her ongoing symptoms and that she had ceased physiotherapy treatment as it aggravated her symptoms.
79 On the most recent examination on 25 October 2010, the plaintiff appeared in moderate distress with limited lumbar range of movement and positive straight leg raising tests bilaterally. Her reflexes and power were normal and symmetrical, with some loss of sensation in the left L5 dermatome.
80 Dr Pjesivac considered that the plaintiff had a serious lumbar disc injury with no capacity to heal or repair and it was likely her current symptoms would continue into the future. He thought that she was in need of continuing physiotherapy and advised her to accept operative treatment from Mr Malham, from which he considered she may benefit.
81 Dr Pjesivac concluded that the plaintiff injured her lower lumbar disc while working. Therefore, her employment represented the sole contributing factor to her injury. In addition, she developed symptoms of depression as a consequence of chronic pain and disability. He noted the plaintiff did not have any significant past medical history of lower back pain or depression.
82 Dr Pjesivac considered that the plaintiff was totally disabled for all work at the present time and into the foreseeable future.
83 Mr Brian Barrett, orthopaedic surgeon, saw the plaintiff on referral from Dr Pjesivac in June 2008. The plaintiff was then complaining of low back pain radiating out into both buttocks and pain in her left lateral thigh, left calf and onto the dorsum of the left foot. Those symptoms were not improving and were aggravated by prolonged standing and lifting and were only helped by taking analgesics and anti-inflammatories. Lying down on her side helped temporarily only.
84 Examination showed a co-operative woman who was moving fairly slowly and stiffly. She stood in mild forward flexion and her lumbar movements were very limited, particularly extension, and all produced low back pain radiating into the left buttock and thigh at various limits.
85 Some moderate lower lumbar tenderness was noted, straight leg raising was difficult to assess, but on the left it appeared to be about 30 degrees and on the right, 45 degrees.
86 Power in the lower limbs was normal and symmetrical and the plaintiff could walk on her tiptoes and heels. All lower limb reflexes were normal and equal, while sensory testing showed some mild depression of sensation involving the left L5 dermatome region.
87 Mr Barrett noted the 2008 CT scan showed a modest L4-5 disc bulge, slightly more on the left than the right and close to the left L5 nerve root.
88 The May 2008 MRI scan showed that the L5-S1 disc was vestigial, but that the L4-5 disc was disrupted with a modest posterior disc bulge and a split in the posterior annulus. The disc bulge was modest and slightly more to the left than the right, close to the left L5 nerve root.
89 Mr Barrett, at that stage, carefully explained to the plaintiff the nature of the disc rupture and also that she had a serious injury. He considered she should be off work as soon as possible, and probably needed to remain off work for some months, and would certainly not return to heavy bending and lifting work again in the future.
90 Mr Barrett re examined the plaintiff in February 2009, at which time she told him she had not made a significant improvement with her symptoms. She continued to complain of low back pain which at times was very sharp, and also of pain radiating into the left thigh calf, to the left foot dorsum and hallux, significantly aggravated by any physical activity.
91 Examination showed a co-operative woman who was moving about very slowly and stiffly. Her lumbar contours were normal but her movements were very limited, particularly extension, and all produced low back pain radiating into the left buttock and thigh at the limit. Straight leg raising was about 30 to 40 degrees on the left and 60 degrees on the right. Neurological examination of the left lower limbs revealed normal power and reflexes, but sensory testing showed some depressed sensation in the left lower limb, maximal in the left L5 dermatome region.
92 At that stage, Mr Barrett thought the plaintiff was clearly not improving with prolonged conservative treatment, and he really thought she may require operative treatment, and he referred her to Mr Malham, neurosurgeon, in relation thereto.
93 Mr Barrett diagnosed a painful rupture at the L4-5 lumbar intervertebral disc, producing a left sided disc bulge and left L5 root sciatica.
94 The plaintiff saw Mr Barrett on 20 May 2010 at the request of her solicitors. At that stage, she advised him that she continued to experience severe and ongoing problems of low back pain radiating out to both buttocks, particularly on the left side, and pain radiating to the left posterior thigh to the lateral calf, as far as the left foot dorsum and hallux.
95 On examination, Mr Barrett noted the plaintiff was co-operative and moving about very stiffly and slowly.
96 Examination of the lumbar spine revealed the plaintiff stood in slight forward flexion and her lumbar movements were very limited: namely, flexion 25 per cent; extension to neutral only; lateral flexions and rotations 25 per cent of full, with all movements producing low back pain into the left buttock area.
97 Some moderate and midline lower lumbar tenderness was present and straight leg raising was to 60 degrees on the right, but only 40 degrees on the left.
98 Neurological examination of the lower limbs revealed normal power and symmetrical distribution and the plaintiff could walk on her tiptoes and heels.
99 All lower lumbar limb reflexes remained brisk and equal. The plaintiff’s plantars were downgoing, while sensory testing revealed depressed sensation involving the left L5 dermatome region. Other lower limb dermatomes were normal.
100 Mr Barrett noted the March 2009 MRI scan confirmed that the L4-5 lumbar disc was desiccated, disrupted and with a posterior annular split seen. He noted there had been no significant change between that film and the 2008 film.
101 Following re-examination, Mr Barrett’s view remained as before. He considered the plaintiff quite unfit to return to any form of work, however light and part time that may be, and that she could not even manage her normal daily activities or drive for any distance without increasing these symptoms.
102 Mr Barrett considered the plaintiff was unlikely to improve into the foreseeable future in the absence of appropriate operative treatment and accordingly, her prognosis remained poor, as there had been no improvement over the previous two year period.
103 Having seen the CGU Workers’ Compensation Notice dated 9 April 2010, where it was suggested the plaintiff had a capacity for certain jobs, Mr Barrett commented that he was surprised any competent medical assessor would be prepared to state that the plaintiff’s current position was compatible with any form of regular work, however light and part time it might be. He thought the plaintiff certainly had no capacity whatsoever to return to any form of gainful employment now or into the foreseeable future, in the absence of appropriate operative treatment.
104 Mr Barrett was required for cross-examination. It was unclear from Mr Barrett’s evidence whether the plaintiff’s solicitors referred the plaintiff directly, but Mr Barrett said the referral came from a general practitioner.
105 Mr Barrett confirmed he no longer operates and that is why he referred the plaintiff to Mr Malham.
106 Mr Barrett agreed that the plaintiff’s condition certainly had not improved to any extent over the period of time he had seen her. On the second examination, she had difficulty moving freely with pain and she was probably more restricted on that occasion than on the initial examination.
107 His understanding was the plaintiff’s pain was “fairly constant, aggravated by activities, usually the leg pain – sciatica – was sudden and like electric shock and intermittent and this is typical of the injury”.
108 From her description to him, he thought the plaintiff would be limited in her physical activities. The heavier the physical activity, the more she would be limited.
109 When asked about Mr Brazenor’s opinion, Mr Barrett said he tended to know Mr Brazenor’s opinion and that “his opinion of back injuries was much the same for all patients that seemed to go through his hands”.
110 After the first examination in June 2008, Mr Barrett put the plaintiff off work, as he thought she was so disabled that he felt she should not even attempt to work.
111 Mr Barrett disagreed with the “terribly disabled” comment in Mr Brazenor’s report which he described as a “fairly emotive” statement. The plaintiff was not as “touchy” on examination as Mr Brazenor described.
112 Mr Barrett confirmed when he examined the plaintiff there was a considerable spasm of the lumbar muscles. He confirmed flexion was 25 per cent, being a quarter of what was normal, and he agreed that 5 degrees found by Mr Brazenor was minimal flexion.
113 When asked about Mr Brazenor’s flexion finding, Mr Barrett explained that the degree of flexion altered from time to time within a single day, depending on the level of pain and muscle spasm.
114 Mr Barrett confirmed he found considerable spasm of the lumbar muscles which he described as a visible tightening of the plaintiff’s muscles on certain movements.
115 About 5 per cent of patients Mr Barrett tends to see could be described as “malingerers”.
116 Mr Barrett did not find sensation to pinprick diminished in the whole of the left leg, but agreed if that had been his finding, it was unanatomical. When Mr Brazenor’s examination findings were generally put to him, Mr Barrett said he did not agree, “knowing that this was the same patient”.
117 Having been shown the Bowl video, Mr Barrett would not say there was no restriction in movement. He thought that the plaintiff was obviously not bending and moving as freely as one would expect and, of course, he did not know how “full she was of analgesia” at the time.
118 When it was put to him that the plaintiff had been sitting for twenty minutes in the car before arriving at the Bowl, Mr Barrett said the plaintiff was moving around and getting her back movement back at the Bowl. He agreed she was moving fairly well but “she was not leaping and jumping and carrying things and pushing things”.
119 Mr Barrett agreed the plaintiff’s presentation on video was grossly more restricted than shown in his surgery. All he could say was that patients do different things at different times of the day and it could not be extrapolated from a ten minute period that they could do that all day.
120 On re-examination, Mr Barrett agreed the plaintiff had bent her back more than 25 degrees on the video, bending her knees.
121 Mr Barrett confirmed there had been some change in the presentation of the protrusion between the earlier MRI scan and the more recent MRI scan.
122 Mr Barrett did not accept that there was any significant injury before the incident because the plaintiff had been working consistently without loss of working time prior thereto. Mr Barrett did not form any view at all that the plaintiff was malingering.
123 Mr Malham, neurosurgeon, first saw the plaintiff on 27 February 2009.
124 He noted on initial examination, the plaintiff was a fit young woman in good health. She was able to stand on her toes and heels symmetrically. There was marked limitation of forward flexion in the standing position, with hands only to the upper third of the thighs and no extension possible secondary to pain and erector spinae muscle spasms.
125 In supine examination, straight leg raising was restricted to 40 degrees on the right and 20 degrees on the left, with worsening low back pain. There was no muscle wasting with normal power in the lower limbs. There was decreased sensation in the dorsum of the left foot.
126 Mr Malham noted the May 2008 MRI scan demonstrated L4-5 disc dessication and a small left paracentral protrusion with annular fissure.
127 Mr Malham discussed with the plaintiff that, given the duration and severity of her L4-5 discogenic pain with left L5 radiculopathy preventing her from returning to work, an updated MRI scan should be carried to revisualise the L4-5 disc level.
128 On review on 22 May 2009, the plaintiff told Mr Malham her ongoing low back pain with left lower limb pain was unchanged. She still had a marked sitting intolerance to twenty to twenty five minutes and could only stand for a similar period.
129 Examination again showed no neurological deficit in the lower limbs apart from the altered sensation in the dorsum of the left foot.
130 Mr Malham discussed the March 2009 MRI scan with the plaintiff, which demonstrated again single level pathology at L4-5 with moderate disc dessication and a posterior central and left paracentral disc bulge with associated posterior annular disruption. There was no nerve root compression or foraminal compromise and the facet joints only demonstrated very mild arthropathy.
131 Mr Malham suggested three options, namely conservative treatment, an L4-5 epidural or an anterior artificial disc replacement at L4-5.
132 Mr Malham thought that the incident was a significant contributing factor to the plaintiff’s L4-5 disc injury. He thought she was unable to return to any pre- injury employment as a quality controller, nor was she able to undertake suitable alternative duties, nor consider retraining at that time, given the severity and duration of her pain and functional impairment.
133 Without surgery, Mr Malham thought the plaintiff’s pain and functional impairment would continue.
134 In examination-in-chief, Mr Malham confirmed that between the first and second examinations, the plaintiff’s condition was essentially unaltered, with a finding of altered sensation in the dorsum of the left foot on both occasions. Ongoing low back pain with left lower limb pain was unchanged.
135 Mr Malham confirmed his findings on the first examination in terms of flexion. On straight leg raising he noted that the plaintiff’s restriction of leg movement was secondary to low back pain and not nerve compression or nerve damage. The reason the plaintiff could not move her legs to a greater extent was because of her back pain and not sciatic pain.
136 Mr Malham disagreed that that low back pain would make walking round the consultation room difficult. He explained the cardinal sign of disc pain was with loading of the disc - so aggravation of pain with full flexion in a standing position. Therefore, it was his suspicion that the origin of the plaintiff’s pain was discal because of a limitation of movement in forward flexion.
137 Mr Malham agreed that if someone in that situation bent forward from the waist classically, they would feel pain when they moved. He explained the disc was “a shock absorber between the vertebras so if you load it, squash it, bend or twist you increase your pain, compared to someone with joint pain, who felt better on bending forward”.
138 Mr Malham agreed it would not be an ‘on and off’ type experience that was discal but then said generally pain fluctuates so patients will say they are better some days and they are going to be worse on others. It is not a constant pain or disability; it will vary.
139 Mr Malham agreed that if there was pain after prolonged sitting or standing for twenty or thirty minutes, that would take a period of time to resolve.
140 Mr Malham agreed that he has frequently come across cases where he was concerned the plaintiff was not as bad as they claimed because there was a potential for a damages claim. In such circumstances, there was a risk that operative treatment was not going to help the patient because they were demonstrating symptoms for reasons other than totally physiological causes.
141 When Mr Brazenor’s view that the plaintiff was malingering was put to Mr Malham, Mr Malham said he found the plaintiff to be a genuine and compliant patient and he had no concerns there were other factors influencing her presentation or examination.
142 Mr Malham was shown the video of the plaintiff at the Bowl.
143 When cross-examined, Mr Malham said that he did not see a back movement where the plaintiff did not bend her knees when she flexed her back. He noticed when she did bend forward she also supported her back with her hands on the back of her lumbar region. He disagreed that her presentation on examination in February 2009 was different to her movement on the video.
144 In re-examination, Mr Malham explained the advantage of bending one’s knees when flexing or trying to flex with a disc injury, as that would reduce the pain coming from L4-5, taking the pressure or load off that disc, which was the “main bending disc” in the back.
145 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 10 May 2010. She told him that her low back pain was the most severe pain, present all the time, fluctuating in severity, and worse with prolonged standing or sitting, and that she avoided bending. Her left leg pain came and went and was present on most days, fluctuating in severity. It extended from the buttock to the back of the thigh and then the top of the foot and great toe “like electricity”.
146 On examination, the plaintiff was co-operative, appearing a little anxious, and she was teary at times. She walked and turned very slowly and carefully and was able to walk on her heels and on her toes.
147 Active thoracolumbar spinal movements were 20 degrees in flexion, although the plaintiff was able to sit, leaning well forward on the couch with her knees extended for her back to be examined, with flexion to greater than 60 degrees. There was nil movement in extension, half of full in lateral flexion and a third of full movement in lateral rotation.
148 There was generalised tenderness about the lower lumbar spine, but without palpable guarding.
149 Thigh and lower leg measurements were equal. Examination of the lower limbs showed power with encouragement to be full and equal in all muscle groups and reflexes were present and symmetrical. Testing for sensation did not show any abnormality.
150 Mr Brownbill noted the plaintiff’s demeanour indicated anxiety during the examination on the couch, and later pseudo vertex pressure and pseudo pelvic rotation tests were positive.
151 Mr Brownbill concluded the examination showed restriction of thoracolumbar spinal movement with no objective neurological abnormality. He thought the plaintiff’s demeanour indicated some anxiety which was consistent with occurring in response to ongoing pain and activity restriction.
152 On the material with which had been provided, Mr Brownbill thought on probability, in the absence of any pain before the incident and the onset of pain thereafter, then with radiological demonstration of single level intervertebral disc derangement at L4-5, the described work incident was a significant contributing factor to that disc derangement.
153 Mr Brownbill considered it doubtful surgery would assist the plaintiff, noting her anxiety and positive Waddell’s sign and varying thoracolumbar spinal movement flexion on examination.
154 Mr Brownbill considered the plaintiff should in future avoid activities involving heavy lifting, full spinal mobility, repeated bending, prolonged sitting or standing. Mr Brownbill diagnosed L4-5 lumbar intervertebral disc derangement resulting in back pain and nerve root irritation and left leg pain.
155 Mr Brownbill thought the plaintiff was not capable of returning to her previous job. He considered she should avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged sitting or standing. He considered from a physical neurosurgical point of view, noting the examination findings, that the plaintiff would be capable of attempting alternative employment, avoiding these activities.
156 On probability he thought the position of sales assistant would not conform to the activity restrictions he referred to. He considered that with the provision of an ability to sit or stand at work, and the avoidance of bending or lifting, the job of ticket seller or office cashier would be appropriate.
157 Mr Brownbill reviewed the plaintiff on 23 September 2010.
158 At that time, pointing to her lumbosacral spine, the plaintiff said she had low back pain intermittently and this improved after medication. It was present most of the time, being worse after prolonged movement. There was buttock pain involving the outer upper aspect, present all the time, being worse with prolonged standing or sitting for if more than twenty minutes and sleeping on her right side also increased pain. The plaintiff had “pins and needles” on the outside of her left thigh, which come and go when the back pain is severe.
159 On examination, the plaintiff was co-operative, appearing anxious with breath holding and hyperventilation and she held her hand to her chest frequently. She walked and turned slowly and carefully and was able to walk on her heels and her toes.
160 Active thoracolumbar spinal movements were 20 degrees in flexion but much greater when sitting on the couch. Extension was nil and other movements were a quarter of full.
161 There was tenderness to the lower lumbar spine in the mid line and coccyx but without muscle guarding. Pseudo vertex pressure testing was negative and pseudo pelvic rotation test was mildly positive.
162 Measurements of the thighs and calves were equal. Examination of the lower limbs showed power to be full in all muscle groups, reflexes were present and symmetrical and testing for sensation did not show any abnormality.
163 Mr Brownbill confirmed his conclusions following his earlier examination.
Investigations
164 A CT scan the lumbosacral spine was requested by Dr Hussain and carried out on 24 January 2008.
165 At L4-5 there was a mild midline posterior disc bulge only causing minimal thecal impression. There was no disc pathology seen at the remaining levels with only a rudimentary disc present at L5-S1. There was no bony encroachment of the spinal canal or neural exit foramina at any level and small Schmorl’s were noted at a few levels.
166 An MRI of the lumbar spine was carried out at Dr Hussain’s request on 15 May 2008. It was concluded that at L4-5 there was a left paracentral posterolateral disc protrusion with an annular fissure. No canal neuro foraminal compromise was noted at any level.
167 A further MRI scan was organised by Mr Malham on 28 March 2009. It was noted that there had been no significant change in appearance since the May 2008 MRI. There was an ongoing mild to posterior/left to paracentral broad based disc bulge with associated annular disruption without central canal or neuroforaminal compromise. There was no significant disc disease at other levels.
The Defendant’s Medical Evidence
168 Dr Das, psychiatrist, examined the plaintiff on 8 July 2009.
169 The plaintiff described to Dr Das how she felt sad, empty and scared when in pain and that she could not do the usual tasks. She told him that she is not the same person any more and everything is minimised.
170 On mental status examination, the plaintiff was quite co-operative. She appeared anxious in mood and her affect was teary. There was no lability or inappropriateness.
171 Dr Das noted pain pre occupation and themes of loss were clearly evident in the plaintiff’s thought content. There were no psychotic symptoms evident. Ideas of helplessness were expressed and the plaintiff conveyed a sense of apprehension and almost phobic anxiety regarding the issue of surgery. She was not suicidal and she had insight and judgment.
172 Dr Das thought the plaintiff was currently suffering from the secondary condition of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that she had developed that condition in the context of enduring stress associated with the effects of the compensable injury. He thought she had a current capacity for work from a psychiatric perspective.
173 Dr Das considered the recent referral to a psychologist was appropriate and that the plaintiff may need to have four to six sessions of counselling to help her resolve her current predicament around the recommended surgery, about which she felt under pressure to make a decision. He felt the plaintiff’s prognosis was uncertain, depending on factors associated with the surgery or otherwise.
174 Dr Elder, consultant in occupational and environmental medicine, examined the plaintiff on 1 September 2009 for the purposes of an AMA assessment.
175 The plaintiff’s complaints at that time were low back pain radiating to the left leg around the knee and she had numbness affecting the great toe. She had cramping of the calf.
176 The plaintiff described a sitting tolerance of fifteen minutes, standing of two minutes and walking, twenty minutes.
177 On physical examination, the plaintiff demonstrated a normal gait and could walk on her heels and toes and carry out a squat.
178 Dr Elder noted the plaintiff exhibited pain behaviour, including use of her antagonistic muscles. So, for example, when he asked her to bend her knee, she would actually straighten it – doing exactly the opposite of what she had been asked to. However, on repeated testing, he noted power in the lower extremities was normal.
179 Dr Elder thought sensation was consistently diminished, however, in an L5 distribution on the left thigh, and that was entirely consistent with the plaintiff’s radiological features, noting other examiners had found consistent signs of sensory radiculopathy.
180 Dr Elder thought there was not much difference between the two MRI scans. They both showed L4-5 disc pathology on the left, which was more to the left, but there was no significant obvious neural involvement seen on the MRI scans. However, this level was consistent with the plaintiff having an L5 sensory radiculopathy.
181 In summary, Dr Elder believed the plaintiff had L4-5 disc pathology with consistent clinical evidence of an L5 sensory radiculopathy and therefore met the requirements of the Guide in that regard. He thought the plaintiff’s condition was stabilised.
182 Dr Adlard, consultant psychiatrist, examined the plaintiff on 9 September 2009.
183 The plaintiff told him her mood was not good and she often felt sad and depressed. She used to be active and now it had all gone. She had sleep broken by pain, especially in her leg, and she had problems with reduced concentration.
184 On mental state examination, the plaintiff moved somewhat slowly and had to stand for part of the interview, complaining of lower back pain, and she appeared in physical distress. The plaintiff was reasonably calm throughout the interview though she started crying on a couple of occasions, describing the impact of her chronic pain.
185 The plaintiff’s mood was mildly depressed and well communicated and she was not anxious. Her thought stream and form were normal and the content was of distress caused by chronic pain and the concern about the impact of the injury on her life. There were no psychotic symptoms and her cognition was grossly normal.
186 In Dr Adlard’s opinion, the plaintiff’s current psychiatric diagnosis was an Adjustment Disorder with Depressed Mood which had arisen secondary to her lower back injury. Those symptoms caused impairment in social and occupational functioning, and the stressors were ongoing.
187 Dr Adlard thought it was reasonable the plaintiff see a psychologist for the foreseeable future, but thought she would also benefit from some anti- depressant medication.
188 Mr Brazenor, neurosurgeon, examined the plaintiff on 18 December 2009.
189 The plaintiff denied any significant improvement in her back condition. She told Mr Brazenor she still could not walk or sit for more than twenty or thirty minutes before pain forced her to desist. She complained of chronic pain in her low back, left buttock and left leg.
190 Mr Brazenor noted the plaintiff, curiously, took only one to two Panadeine Forte tablets per day as her entire analgesic uptake.
191 On examination, the plaintiff exhibited her gait in a slow, terribly disabled fashion. She limped on her left leg, and when standing quietly flinched when her low back was gently palpated, or even when the skin on her low back was touched.
192 There was no lumbar spinal deformity (in fact the plaintiff retained an excellent lumbar lordosis) and there was no spasm of lumbar erector spinae muscles.
193 Mr Brazenor asked the plaintiff to slide her hands down the front of her thighs as far as she could before it became painful and she managed barely 5 degrees of lumbosacral flexion. She would not extend past the neutral and both excursions allegedly caused severe low back pain.
194 In supine examination, there was no wasting in any muscle groups in the lower limbs. The plaintiff could only manage 5 degrees of straight leg raising on the left and 10 degrees on the right, allegedly limited by low back pain.
195 The plaintiff resisted simultaneous flexion of the hip and knee in both legs, even though this leg posture did not stress the lumbosacral plexus in any way. Muscle motor power was reduced in every muscle group in the left leg without focal predilection and indeed if the plaintiff were in truth as weak as she made out during bench testing, Mr Brazenor thought she could not stand, let alone walk.
196 Tendon reflexes were present and correct throughout except for the right tendon Achilles reflex (i.e. in the asymptomatic leg) which was absent. The left was brisk. Sensation to pinprick was diminished in the whole of the left leg on all aspects, which Mr Brazenor noted was unanatomical.
197 At the end of the supine examination, Mr Brazenor attempted to sit the plaintiff up on the couch, but instead she elected to roll on her side and sit up sideways.
198 Having examined the 2008 CT scan and the MRI scans of May 2008 and 2009, Mr Brazenor commented all scans were identical, showing transitional anatomy with a residual disc between S1 and S2; and at L5-S1, he thought that the only thing which could possibly be construed as an injury was a tiny central disc protrusion which was the same on all the scans. That is to say, it had neither healed nor worsened in the fourteen months between the CT scan and the last MRI scan.
199 Mr Brazenor commented it was not even clear whether this tiny central disc protrusion at L5-S1 was an actual injury occurring in the incident. Insofar as it had not changed at all between the CT scan of the day following injury and the MRI scan fourteen months later, he thought that there was a very real possibility that the disc looked like that before the incident.
200 Mr Brazenor concluded the plaintiff had a largely functional presentation and that there was a huge credibility gap between the degree of pain and disability alleged by her, and what was found on radiological investigation and clinical examination.
201 Judging from those findings, Mr Brazenor thought the plaintiff probably had very little pain. He considered she should be fit for fulltime employment with the single embargo of prohibiting repeated bending at the waist and accessing levels below her waist.
202 Mr Brazenor firmly recommended against surgery. In his experience, he found offering an operation for an almost non existent pathology in a person with functional presentation led to nil success rate.
203 Accordingly, Mr Brazenor thought no further treatment was required. He believed the plaintiff was malingering in an attempt to feign an injury that she did not have, or at least a much more severe injury than she might have.
204 Mr Brazenor suspected that the social and occupational aspects of the tiny irregularity seen at L5-S1 were minimal. To give the plaintiff the benefit of the doubt however, he would certify her back to non bending, non lifting work on a full time basis.
205 Having been provided with a vocational assessment, Mr Brazenor thought the sales assistant job was unsatisfactory, insofar as it involved pricing, standing, and displaying items for sale, as well as counting goods and stocktake and other activities, which required bending.
206 He thought the jobs of ticket seller and office cashier were eminently suitable and the plaintiff could start immediately upon training. In both these options he thought it would be important to provide her with an optimal sitting chair which could be cheaply purchased at Officeworks.
The Defendant’s Vocational Evidence
207 A 130 week vocational assessment report was carried out by the Ors Group on 23 December 2009.
208 Following consideration of the plaintiff’s transferrable skills, education, employment history and injury restrictions, the following options were identified in the course of the vocational assessment: namely sales assistant, ticket seller, packer and cashier.
Video Surveillance
209 Five minutes of video footage was shown of the plaintiff and her young son attending the Waverley Gardens Bowl on 1 November 2009.
210 The quality of that film was poor and at times it was hard to see because of darkness inside that venue.
211 The film commenced at 12.27 pm, showing the plaintiff’s vehicle on the freeway. At 12.37 pm, the plaintiff, her husband and son were shown briefly walking on the footpath. At that stage the plaintiff was walking slowly.
212 At 1.08 pm, the plaintiff and her son were first seen at the Bowl. The plaintiff was shown bending to help her son bowl the ball. At 1.14 pm, she appeared to be shown quickly picking up the ball before handing it to him.
213 At around 1.21 to 1.22 pm, the plaintiff was standing, at times slightly bent over, playing with another child. At 1.25 pm, the plaintiff sat down.
214 Very short video footage of one minute’s duration taken on 20 April, 22 April and 27 April 2010 was not of any particular significance save that it showed the plaintiff walking at times rather slowly.
Overview
215 Prior to the incident, the plaintiff did not suffer from any spinal problems.
216 I accept that the plaintiff suffered a compensable injury to her lower back on the said date in the incident.
217 The injury has been diagnosed as single level L4-5 discogenic pain with left L5 sensory radiculopathy. This diagnosis was confirmed on MRI scans taken in May 2008 and March 2009.
218 Mr Brazenor ignored these findings in his opinion, noting only a tiny central disc protrusion at L5-S1 and querying whether an actual injury occurred on the said date.
219 Mr Brazenor, unlike Mr Barrett, Mr Malham, Mr Brownbill and Dr Elder, did not find objective evidence of nerve root involvement on examination.
220 Whilst the plaintiff showed some non-organic signs on her examination with Mr Brownbill, he accepted she had demonstrated single level lumbar intervertebral disc derangement.
221 Dr Elder found pain behaviour on examination but concluded the plaintiff had L4-5 disc pathology with consistent clinical evidence of an L5 sensory radiculopathy.
222 I accept that the plaintiff has an ongoing organic condition, with pain corresponding to the distribution of the L5 nerve root, which requires surgery as recommended by her treating neurosurgeon, Mr Malham, and supported by Mr Barrett.
223 Liability was accepted by the defendant for the plaintiff’s injury and weekly payments were made until July 2010 with the matter now subject to conciliation.
224 The relevant issue for consideration is impairment and whether the consequences thereof are serious and permanent.
225 A lot was made of the plaintiff’s credibility by counsel for the defendant. It was submitted that she exaggerated her symptoms to entitle her to compensation. A suggestion was made, although there was no evidence to this effect, that the plaintiff and her husband were in some way abusing the compensation system. It was also suggested that there was something sinister about the plaintiff attending her husband’s doctor six months after the incident and her symptoms then worsening after she commenced that treatment.
226 Reliance was also placed by the defendant on video surveillance taken of the plaintiff at the Bowl. It was submitted that the plaintiff was shown acting like a normal parent and that she did not show any pain and there was no evidence of restriction of movement .
227 Although the plaintiff had a greater range of movement on film than demonstrated on examinations, I do not consider that she moved totally freely or that she was shown “bending and bobbing” as suggested by counsel for the defendant. She did not actively engage in bowling but simply bent over at times to assist her six year old son and on one occasion appeared to pick up a bowling ball and hand it to him.
228 In this very short film, on occasion when the plaintiff flexed she did so bending her knees, thus relieving the pressure on her lower back as described by Mr Barrett and explained by Mr Malham in cross-examination.
229 I accept that the plaintiff managed her pain on this occasion by changing posture and that she had taken medication before that outing.
230 In addition to the film, an attack was made on the plaintiff’s credit in terms of Mr Brazenor’s examination and findings. It was submitted by counsel for the defendant that the plaintiff’s performance on that examination was “the true picture” and that at that time she deliberately exaggerated the level of her disability, “putting it on” for Mr Brazenor’s benefit.
231 Mr Brazenor, however, is the only doctor who records the plaintiff behaving in that what could be described as a bizarre fashion. Whilst anxious when she saw Mr Brownbill and showing some pain behaviour when saw Dr Elder, both these doctors noted a normal gait and she could walk on her heels and toes and carry out a squat.
232 As Mr Brazenor’s finding really stands alone in a number of respects, I prefer the views of the other medical examiners who have found evidence of an organic injury with nerve root involvement.
233 I accept that since the incident, the plaintiff has experienced severe ongoing pain and restriction in lower back, and also left leg pain. The plaintiff confirmed, when cross-examined at length, the complaints of pain and restriction of movement at the various examinations. She has required prescription medication on an ongoing basis to try to cope with her pain.
234 The plaintiff’s condition is of such magnitude that surgery has been suggested by her treating surgeon, Mr Malham, a course also supported by Mr Barrett.
235 I do not accept the submission that the reason the plaintiff is not prepared to undergo this surgery is because she is not as bad as she claims and she is exaggerating her level of symptoms. I consider her decision in this regard is understandable given the failure of her husband’s surgery, the nature of the surgery suggested to the plaintiff and the lack of guarantee of success.
236 The plaintiff wakes most night because of back pain. As Maxwell P said in Haden Engineering v McKinnon (2010) VSCA 69 at paragraph 45, it is a matter of great significance for a person to be denied seemingly for the rest of their lives the ability to enjoy uninterrupted sleep.
237 The plaintiff requires assistance with heavier housework and she can no longer maintain her garden. Leisure and social activities are also affected because of her back pain.
238 The plaintiff is a woman with limited English whose only work history in Australia has been as a process worker. The preponderance of medical evidence is that she is unfit for unrestricted manual work by reason of her back condition.
239 Dr Pjesivac considered the plaintiff to be totally incapacitated for the foreseeable future when he last reported in May 2009. In that month Mr Malham thought the plaintiff was unable to undertake suitable alternative duties or consider retraining given the severity of her pain and functional impairment. Mr Barrett shared that view a year later .
240 Whilst Mr Brownbill thought the plaintiff was not capable of returning to her previous employment, he thought she would be capable of attempting alternative employment in a graduated fashion, avoiding activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing.
241 Mr Brazenor again is alone in his view that the plaintiff should be fit for full time employment with the single embargo of prohibiting repeated bending at the waist and accessing levels below her waist.
242 I am satisfied that the loss of earning capacity consequence of the plaintiff’s injury is, when judged by a comparison with other cases in the range of possible losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
243 Given the duration of the plaintiff’s pain and the lack of improvement in her condition, I am satisfied that the impairment to her lumbar spine is permanent.
244 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 forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 245 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. 246 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
247 “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.
248 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.
249 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. See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
250 I am therefore required to determine a “without injury” earnings figure.
251 No figures were put by either counsel.
252 In the year of injury the plaintiff was earning approximately $700 gross per week. The Form A set out the plaintiff’s gross earnings for the 2007/8 financial year were $33,653. The plaintiff earned a similar sum in 2005/6 and earned $28,120 in 2006/7.
253 In the absence of any further evidence as to the likely earnings of the plaintiff in the three years after injury, in my view, the figure which most fairly reflects the plaintiff “without injury” earnings is $35,000. Sixty per cent of that figure is $21,000.
254 The plaintiff’s present earnings from personal exertion are nil.
255 To succeed in the application for loss of earning capacity the plaintiff must establish that on a permanent basis she does not have the capacity to earn in excess of $21,000.
256 Counsel for the plaintiff submitted that this was a total incapacity case and no wage figures were put.
257 Counsel for the defendant submitted that there were some vocational options as set out in the Ors Group report and also as described by Mr Brownbill and it was not an “all or nothing” case.
258 Taking into account the plaintiff’s injury restrictions and her previous work experience and limited English, I do not accept that she has the capacity to work as a sales assistant, ticket seller, packer and cashier as suggested by the Ors Group. Further, I do not accept that she has any capacity to perform the restricted duties suggested by Mr Brownbill.
259 Taking into account the medical opinion in this regard and accepting the plaintiff’s evidence of her level of back pain and disability, I am satisfied the plaintiff has established that she has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
260 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
261 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 s.134AB(38)(g).
262 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, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
263 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity and pain and suffering.
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