Walsh, Alexandra Jane v Mars Australia Pty Ltd
[2009] VCC 1487
•4 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-02280
| ALEXANDRA JANE WALSH | Plaintiff |
| v | |
| MARS AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 24 and 25 August 2009 |
| DATE OF JUDGMENT: | 4 September 2009 |
| CASE MAY BE CITED AS: | Walsh, Alexandra Jane v Mars Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1487 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985 – neck injury – whether consequences achieve the “very considerable” level
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with | Justin Burke |
| Mr M A Nightingale | ||
| For the Defendant | Mr M R Titshall QC with | DLA Phillips Fox |
| Mr I S Gourlay | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff claims to have suffered injury on or about 21 December 2005 when, over a period of several days, she worked on a machine at the defendant’s confectionary factory which she claimed was arduous and repetitive work.
2 She returned to work on lighter duties until she was terminated in January 2008. In addition to neck pain, she had referred pain down both arms.
3 She has been treated with a range of modalities, and in 2008 moved from Ballarat to Coober Pedy where her husband was living. She has applied for a range of employment over the last twelve months[1] but has been unable to obtain any jobs.
[1] Plaintiff’s Court Book (“PCB”) 83-86
4 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment on or about 21 December 2005. Mr Jordan, on behalf of the plaintiff, identified the body function said to be lost or impaired as the cervical spine or neck. The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of impairments or losses of the body function of the cervical spine.
6 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her without injury earnings in the three year period before and after injury, as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
7 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports, affidavits of the plaintiff and her husband, earnings and employment details, and affidavits of employees of the defendant were tendered into evidence. I have read all the tendered material.
8 On behalf of the defendant, Mr Titshall outlined the position of his client in response to the application as follows:
•
The plaintiff had an underlying degenerative disease in her spine and there was little if any objective sign of injury in December 2005.
• The changes in the plaintiff’s cervical spine on radiology were minimal. •
The plaintiff had significant past problems, not only in relation to her neck, but various other physical and psychological problems and had a very considerable time away from work as a result.
•
The plaintiff had the capacity for full-time employment and there was little if any effect upon employment capacity as a result of the alleged injury.
•
When viewed with other cases in the range, the consequences to the plaintiff did not achieve the “very considerable” level.
Relevant Background
9 The plaintiff was born in September 1966 and is currently forty-two years of age. She is married and has no children. She was educated in South Australia to Year 10 but continued her education in Canada to the equivalent of Year 12. She returned to Australia in 1984 and had a range of jobs essentially in manual work. She has no particular formal qualifications nor training.
10 She commenced work with the defendant in July 1989 and worked generally as a machine operator at its confectionary factory at Wendouree.
11 She has an extensive history of physical and psychological problems prior to the subject injury. She suffered various gynaecological problems, particularly endometriosis and was treated and recovered from cervical cancer. In addition, she has suffered from anxiety and depression for most of her life. She has been treated at times by psychologists and psychiatrists. There has been a long history of psychological trauma in her life, including abuse by family members and the suicide of a brother. Treatment has included prescription medication which she was taking in December 2005. In fact the plaintiff was away from employment for all of November 2005 and the first week of December 2005 because of her depressive condition. At that time, there was a change to her medication from Aropax to Effexor. She accepted, in cross-examination, that overall she had had many months away from work by reason of this depression.
12 In addition, by reason of the repetitive work she was undertaking, she had problems from time to time with her neck, shoulder and right arm.[2] According to the clinical notes of the plaintiff’s then treating general practitioner,[3] the plaintiff was treated in October 1998 for right arm and neck pain, prescribed medication and had about a week off work. In August 2000, her neck pain was described as “neck pain +++” which came on while vacuuming the ceiling. She was referred for physiotherapy and was off work, it appears, for one day.
[2] PCB 16
[3] Exhibit 2
13 In January 2001, the notes record a neck strain while at work. She was prescribed Nurofen and advised to wear a soft collar, and referred for physiotherapy. In May 2001, her neck was said, by the general practitioner, to still be stiff and sore, particularly after working two shifts. Further, Nurofen and Panadol was prescribed.
14 In May 2005, the plaintiff suffered an injury at work as a result of lifting empty pallets and reported a sore neck and sore left elbow. She was given a period away from work. By June 2005 her neck was said to be improving and she was not suffering headaches. Again, on 28 June 2005, the plaintiff complained of neck and right arm pain. She was receiving physiotherapy treatment and by July 2005 the pain was reported to be better.
15 Prior to injury, the plaintiff claimed that she enjoyed a range of recreational and social pursuits, including knitting, board games and reading. Her husband had been unemployed for many years as a result of an earlier work injury, and she was principally responsible for looking after not only him and the household, but also her mother-in-law.
16 With her various illnesses, the plaintiff agreed that over her years at Mars she averaged more than nine weeks a year away on sick leave. In fact in 2005, before her injury, she was counselled by the defendant for the amount of time that she was having off.[4] As a result, the plaintiff wrote a letter claiming to have been harassed.[5]
[4] See Exhibit JPS1 to affidavit of Justin Paul Spalding – Defendant’s Court Book (“DCB”) 106-131
[5] DCB 133
17 From the commencement of her employment, the plaintiff made many claims for injury she alleged was sustained in the course of employment.[6]
[6] See affidavit of Daniel John Thek - DCB 139-144
18 In addition to the recreational pastimes the plaintiff claims she enjoyed, she says, further, that she enjoyed fishing and would socialise regularly around Ballarat.[7]
[7] PCB 27
19 The plaintiff’s gross income from work with the defendant in the three years preceding injury was as follows:
2003 - $62,340 2004 - $62,048 2005 - $69,434.
The Injury and its Consequences
20 In 1999, the plaintiff commenced work on a machine used in the production of confectionary known as “MLP machine number 2” (“the machine”). There is a conflict on the evidence as to the extent to which work on this machine was arduous and strenuous. The plaintiff claims[8] she was required to work repetitively loading heavy boxes, moving products from a pallet and attending to various other duties in relation to the production and maintenance work of the machine. She claimed that her tasks required her to lift piles of boxes weighing up to eight to ten kilograms, loading them onto trolleys and lifting them onto pallets. Some of the work, she claimed, was rapid, particularly in 2005 when there was an urgency about completing production of confectionary because of the Christmas break.
[8] PCB 17-18
21 According to the affidavit of Mr Spalding,[9] he stated there was no increased production prior to Christmas 2005. During the period 18 to 21 December 2005, he claimed the plaintiff was operating the machine in conjunction with another employee. The plaintiff had claimed that she was the only one operating the machine. Mr Spalding said the tasks in which the plaintiff was involved were not heavy manual tasks although there was a moderate amount of manual handling required. The shifts were rotated, and the individual needs of the employee were met in relation to work on the machine.
[9] DCB 101
22 For reasons which I shall subsequently give, while I did not find the plaintiff an untruthful witness, I did not find her reliable in evidence. Although I am not required to make an assessment of whether in the circumstances the work was overly arduous or repetitive, to the extent necessary I prefer the evidence of Mr Spalding.
23 In any event, Mr Titshall did not contest that the plaintiff had suffered some injury in the course of her employment in or about December 2005. She claims she suffered pain in her neck as the work she was undertaking required repetitious neck movements. She went to see her general practitioner, Dr Ryan, on 23 December 2005 with pain in her neck, and radiating into the shoulders. She then had three weeks of accrued annual leave, hoping that the pain in her neck would improve. She returned to see Dr Ryan on 18 January 2006, and he prescribed Panadol and Nurofen. She had some short period away from work. She then returned to lighter, modified duties.
24 There is no report of any substance from Dr Ryan save that his clinical notes from 2005 to 2007[10] indicate regular attendances by the plaintiff for pain in the neck, and referred pain into the right arm. He prescribed a range of medication, including Panadol, Nurofen and Mobic, referred the plaintiff for physiotherapy and provided WorkCover certificates from time to time. In addition, the plaintiff completed further incident reports for injuries to her neck, shoulder and arms on a number of occasions from January 2006 until 2007.[11]
[10] PCB 33-38
[11] See affidavit of Daniel John Thek – DCB 143-144
25 An x-ray of the cervical spine of June 2006 showed mild degenerative narrowing at C5-6 and C6-7.[12] The CT scan of the same area of August 2006[13] showed facet degeneration at C3-4 and C4-5. An MRI of the cervical spine of December 2006[14] showed broad based disc bulging at C4-5, C5-6 and C6-7 with slight flattening of the thecal sac. There was no foraminal stenosis, nor significant central canal narrowing. A more recent MRI scan undertaken by Mr Schofield, orthopaedic specialist, of January 2009[15] showed no changes from the earlier MRI scan.
[12] PCB 56
[13] PCB 57
[14] PCB 58
[15] PCB 60
26 The general practitioner referred the plaintiff to Mr David Mitchell, orthopaedic specialist, in late 2006. He noted the CT scan showed some degenerative changes in the neck at two levels. After examining the MRI scan, he said there was no neural compression and there was no place for surgery. The plaintiff had some unusual symptoms in her throat related to swallowing. In a report to the defendant of February 2007,[16] he noted the plaintiff had been treated with acupuncture, physiotherapy and medication and was on light duties when he saw her. He was unable to say as to what proportion of her symptoms and disability were caused by her neck injury.
[16] PCB 42
27 In March 2007, the plaintiff was referred by her general practitioner to Mr de la Harpe, orthopaedic specialist.[17] He obtained a history of regular neck and right arm pain, and an exacerbation in December, although it is not clear whether he is referring to 2005 or 2006. He found no neurological abnormality on examination and noted the CT and MRI scans showed some degenerative change, but without nerve compression. He considered the plaintiff as suffering mechanical and degenerative neck pain. He recommended physiotherapy and that the plaintiff be retrained in work which was not repetitious and manual in nature. He diagnosed[18] mechanical neck pain in a setting of pre-existing degenerative change in the cervical spine. He thought her work capacity was limited because of the repetitive work she had done at the defendant’s factory. She should not return to such repetitive work and should seek work of a more sedentary nature. He felt that seventeen years of manual labour contributed to her degenerative neck condition.
[17] PCB 43
[18] PCB 45
28 The plaintiff remained at work undertaking light work, and at times did some office work. Her physiotherapy treatment continued and she claimed that activities, such as cooking or cleaning, were difficult. Activities which required her to hold her neck in the one position, such as reading, caused pain and her sleep was affected. By May 2007, the defendant wrote to the plaintiff,[19] noting that the plaintiff was being certified as fit only for office duties. The defendant stated that it was unable to provide these duties, and by January 2008, the plaintiff’s employment was terminated.[20]
[19] PCB 80
[20] PCB 81
29 In 2007, the plaintiff’s husband moved to Coober Pedy. He had grown up in that area, and despite being unemployed for a considerable period, wished to pursue opal mining. The plaintiff remained in Ballarat assisting in the care of her mother-in-law.
30 In October 2008, she moved to Coober Pedy with her mother-in-law, having flown to visit her husband there on a number of previous occasions. There she came under the care of Dr Kamitakahara. Although he did not provide a report, his clinical notes[21] refer to attendances by the plaintiff from time to time and the prescription of Aropax, Serapax, Panadeine Forte and Nurofen. More recently he has prescribed Panadol Osteo tablets for neck and arm pain. In June 2009, Dr Kamitakahara noted the plaintiff had attempted three to four hours “noodling”[22] on two occasions, and as a result, had increased neck pain.
[21] PCB 48-54
[22] Work involving the separation of opals from ore
31 At the present time, the plaintiff takes Panadol Osteo for pain relief, up to five tablets a day, Aropax each day for depression, and Serapax to “settle my nerves” from time to time. She has been unable to resume physiotherapy treatment as it is not available in Coober Pedy.
32 Her move to Coober Pedy, she claims, was because, with her decreased income, she was unable to remain living in Ballarat and was forced to sell her premises. While the environment was harsher in Coober Pedy, she was able to live with her husband and mother-in-law at less expense. She stated in evidence that absent her injury, she would not have moved from Ballarat. She finds living in Coober Pedy in the harsh environment difficult and there is less social communication with other residents, fewer facilities, and reduced work prospects.
33 Since her employment with Mars was terminated, she has made application for a range of jobs.[23] She has not been successful in any of those applications. Since going to Coober Pedy she has applied for employment at the local supermarket, petrol station and hairdressing salon. Her evidence in relation to these job applications was somewhat uncertain, in that she conceded to Mr Titshall in cross-examination that she applied for these jobs in the belief that she would be able to carry out the duties, but in re-examination stated that she was encouraged by a rehabilitation provider to apply for jobs and did so, not being certain whether she would be able to do the job, but was prepared to “have a go”.
[23] PCB 83-86
34 Aside from attending her general practitioner, the plaintiff does not receive any other treatment, particularly specialist treatment. There is no prospect of surgery. The plaintiff is still affected by her depressive illness, and takes medication for that purpose.
35 In June 2009, the plaintiff commenced a business management course at the Port Augusta TAFE conducted by correspondence. The plaintiff claimed that she was struggling to keep up with the course[24] but, in cross-examination conceded that she had submitted eight or nine assignments in the various modules of the course, completing them on a computer, and received the commendation of “good work” for them.[25]
[24] T 21
[25] T 22
36 Over the period from 2007 to the present time, she and her husband had purchased a number of properties in and around Coober Pedy with the expectation of building and selling the houses.
Medical Evidence
37 There is little from a number of the plaintiff’s treating practitioners as to her current state, work capacity and prognosis. Aside from clinical notes, there is no opinion from her treating general practitioner, Dr Ryan, or other general practitioners in his practice, nothing of significance from Mr Mitchell, treating orthopaedic surgeon, and even the report of Mr de la Harpe provides only a cursory assessment as to the plaintiff’s work capacity, and no opinion as to the various jobs proffered by the defendant which it is said the plaintiff has the capacity to undertake. Likewise, there is no report from the current treating general practitioner, Dr Kamitakahara, although it is clear[26] that he has limited resources to prepare a report.
[26] PCB 55
38 The plaintiff was examined by Mr Kevin King, orthopaedic specialist, in October 2007 and February 2009.[27] He provided a further letter of August 2009 in relation to the plaintiff’s work capacity.[28] In his first report he described the plaintiff as “previously fit and well”.[29] It would appear Mr King did not obtain an accurate history of all of the plaintiff’s various physical and psychological difficulties. He accepted that in the course of a busy bout of work in December 2005 the plaintiff suffered an aggravation of mild degenerative changes in her cervical spine which caused persistent aching in the neck, referred headaches and right brachial neuralgia. He noted mild degenerative changes on the x-rays, common in persons of the plaintiff’s age. He considered the plaintiff permanently unfit to return to her repetitive production line work. He considered that if the plaintiff had previous clerical experience she could go back to clerical duties on a part-time trial basis and could return to suitable light duties providing that involved no stress or strain on her neck and shoulders, starting on a part-time basis.
[27] PCB 62-72
[28] PCB 72a-b
[29] PCB 66
39 The plaintiff was examined by Mr Schofield, orthopaedic specialist, in November 2008. He provided a further report following the obtaining of an MRI scan in January 2009.[30] He obtained a history of persistent posterior neck pain with radiation of pain to the right arm and below the elbow to three fingers. He thought most probably the plaintiff had suffered an aggravation of pre-existing cervical spondylosis. The injury, he opined, was consistent with the repetitive stressful and rapid movements of her neck over many years, made more stressful prior to Christmas 2005. At that time, he considered the plaintiff to have suffered a disc prolapse although that was not evident on the earlier MRI scan. He suggested a further MRI scan with functional views. Having received that scan, which noted no change in the appearance since December 2006, there appeared no support for his theory of disc prolapse. He confirmed her injury as aggravation of an underlying disc degenerative change at lower cervical discs. He considered that surgery was a possibility being a two-level decompression and fusion.
[30] PCB 73-78
40 I have reservations about the opinion of Mr Schofield. He is the only doctor to have considered the plaintiff had suffered a disc prolapse and the only one to consider surgery as a possibility.
41 On behalf of the defendant, the plaintiff was examined by Mr John O’Brien, orthopaedic specialist, in February 2006, May 2006, April 2008 and February 2009.[31] Mr O’Brien obtained a history of injury to the plaintiff in December 2005 and noted that she had returned to her normal duties doing unrestricted work on several machines in April 2006. In June 2006, Mr O’Brien noted that the symptoms of which the plaintiff complaining, namely, constant pain in the base of her neck, had significantly improved and that she had returned to normal duties. There had been a further aggravation in May 2006 and at that point he thought her disability as mild. A further aggravation occurred in November 2006 and that her duties were terminated in January 2008. He received a history at that time of referred pain into her right shoulder, and headaches. He noted the MRI scan disclosed broad based bulging at C4-5, C5-6 and C6-7 but without nerve root compromise. He accepted that the plaintiff’s employment was a significant contributing factor to injury.
[31] DCB 5-19
42 By 2009,[32] he noted continuing constant neck pain radiating to the right shoulder and the lateral aspect of the forearm. There was also altered sensation in the right hand. The plaintiff complained of right sides occipital headache. She was capable of undertaking all of her activities of daily living, able to drive a car and undertake all but the heavier domestic tasks.[33] He noted nerve conduction studies were normal. He thought that the plaintiff’s physical signs were entirely subjective and extremely mild and that her ongoing organic pathology also extremely mild. He thought there may be non-organic factors involved. He noted that the plaintiff’s treatment was only two Panadol per day. He considered that the plaintiff was not totally incapacitated and that she was capable of undertaking modified duties which did not place heavy physical strain upon her upper limbs. He considered that her general, domestic and social activities were only mildly restricted and that she could pursue a reasonably active lifestyle.
[32] DCB 18
[33] DCB 18
43 The plaintiff was examined on behalf of the defendant by Mr Keith Elsner, orthopaedic specialist[34]. In September 2007, he was asked to report upon the various injuries which the plaintiff had claimed to suffer in October 1998, July 1999, April 2001, March 2003, May 2005 and finally December 2005. His various reports of that date state all of the injuries, save for that of December 2005, resolved.[35] He examined the plaintiff in respect of injuries said to have arisen as at 21 December 2005, in September 2007, May 2008 and February 2009.[36] He provided a further letter of March 2009.[37] He considered that the injury of December 2005 had resulted in an aggravation of the underlying cervical degenerative changes, but without radiculopathy. He noted a range of exacerbations during 2006 but by 2008, her range of movements had improved significantly and that she had a full and pain-free ability to move her neck in examination.[38] He considered the aggravation to the underlying disease as mild. He noted the findings on MRI scan were quite common in persons of the plaintiff’s age. He did not think that there was an organic basis for the unremitting neck pain and that there was no focal disc protrusion, nerve root compromise nor any deterioration on appearance in the MRI scans taken respectively in 2006 and 2009.[39]
[34] DCB 25-61
[35] DCB 25-43
[36] DCB 45-59
[37] PCB 60
[38] DCB 51
[39] DCB 57
44 At best, the restriction in her neck movements were mild and the prognosis was for some ongoing intermittent aching in the neck and upper arm with heavier physical activities. He considered that the plaintiff had the capacity to work full-time, avoiding heavy lifting activities, and activities involving rapid, repetitive movements of the head and neck and looking downwards for prolonged periods.
Vocational Reports
45 Two reports were provided by Konekt, a rehabilitation provider, of August 2007[40] and April 2009.[41] In the first report, it was suggested the plaintiff had the capacity to undertake the following full-time jobs with a gross weekly salary as indicated:
[40] DCB 62-72
[41] DCB 73-98
(i) data processing operator - $633.60 (ii) clerical officer – local government - $750 (iii) accounts clerk - $684.40 (iv) occupational health and safety officer - $782 (v) call centre operator - $685. 46 In the subsequent report of April 2009, the following jobs were suggested as being appropriate:
(i) call centre operator - $767 (ii) car rental officer - $770 (iii) hotel and motel attendant - $690 (iv) receptionist - $690 (v) accounts clerk - $770 (vi) bank worker - $800 (vii) dispensary technician - $575 (viii) sales assistant - $640. 47 Each report examined in brief compass, the various duties and activities involved in the jobs.
Conclusions from the Medical Evidence
48 There seems little issue that in the incident of December 2005 the plaintiff suffered an aggravation of her pre-existing cervical degenerative condition. There is reference in the clinical notes to neck problems over the period from 1998 to May 2005. However, while there was some treatment from time to time for these, they do not appear to have kept the plaintiff away from work for any significant period. Further, while there is reference in some reports to injury throughout the plaintiff’s work with the defendant, there is no report which places great store in these earlier incidents as being of significance. The course of the aggravation after December 2005 fluctuated from time to time thereafter, but there seems universal medical opinion that the plaintiff would be unable to return to employment which required heavy lifting, or repetitive and extreme movements of the neck and upper limbs.
49 A key issue in this case is the nature and extent of the plaintiff’s present work capacity. There are different opinions between, on the one hand, Messrs King and Schofield, from the plaintiff’s camp, and on the other hand, from Messrs O’Brien and Elsner, from the defendant’s camp. On balance, marrying the medical opinions with my assessment of the plaintiff in the course of evidence, I prefer the opinions of Messrs O’Brien and Elsner. They have seen the plaintiff regularly, conducted thorough examinations and take into account the fact that the plaintiff is able to carry out a range of domestic, recreational and like tasks without significant impediment. I reject, particularly, the opinion of Mr Schofield for the reasons given.
50 On balance, I am of the view that the plaintiff does have the capacity for full- time employment in occupations which do not involve heavy lifting, nor repetitive or rapid and strenuous movement of the neck and upper limbs.
Conclusions
51 It was submitted by Mr Titshall that the plaintiff was an intelligent and capable person and not, as she had portrayed, with minimum education and training, having spent her working career in manual process-type jobs. Generally I found the plaintiff to be an honest witness, but somewhat unreliable. There was a range of issues put to her in cross-examination where the evidence appeared to change. She at one point admitted that she thought herself capable of doing all of the jobs she applied for, and at another said that she was uncertain whether she would be able to do the tasks. At one point she stated she had not undertaken office work, but it was clear from the defendant’s material that she had. She had a very extensive history of health problems before December 2005 including, particularly, problems with depression and anxiety, yet in her affidavit she described her general health as good. It is clear that she had a very considerable time away from work, on average over nine weeks a year for various physical and psychological ailments. The defendant appears to have been extremely accommodating, despite her claim that she was harassed. For all of these reasons, I have reservations about the extent to which I am able to rely upon the plaintiff’s evidence, particularly as to the nature and extent of pain and restriction in her neck and upper limbs, and particularly in relation to her capacity for employment.
52 I am satisfied that the plaintiff is able to undertake a range of domestic and recreational duties, including looking after her mother-in-law, driving regularly, including on at least one occasion driving to Coober Pedy and I note that in cross-examination she accepted she had not been fishing since 2003.
53 In accepting the medical opinions of Messrs Elsner and O’Brien as to the plaintiff’s work capacity, I note that there is no report from any of the treating practitioners about her current work capacity. Had their views been that she did have restrictions, I would have expected an opinion from them to that effect.
54 I note that the plaintiff’s present treatment is not extensive. She takes some Panadol Osteo each day and aside from prescriptions and certificates obtained from her current general practitioner, does not receive any other therapy, although I note that she received physiotherapy until she left Ballarat, and has been unable to obtain that treatment in Coober Pedy.
55 Her reasons for going to Coober Pedy are somewhat quizzical. On the one hand, she states she is unable to afford maintaining two households. Further, it is natural that she follow her husband to Coober Pedy where he sees his prospects as brighter than Ballarat. On the other hand, however, she appears motivated to obtain alternative employment and has in fact applied for many jobs in a range of areas. Her prospects of obtaining employment are far greater, I would have thought, in Ballarat than Coober Pedy. Further, the prospects of obtaining effective treatment for her injuries are better in Ballarat.
56 The first matter to determine for the purposes of assessing economic loss pursuant to s.134AB(38)(f) is:
“The gross income … the worker was earning or capable of earning from personal exertion … during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
57 For the years ended June 2004 and June 2005, the plaintiff earned, respectively, $62,048 and $69,434 gross. Reference was made to the earnings of comparable employees over the years from 2003 to 2009.[42] Mr Titshall submits that I ought to accept that for the purpose of the formula, a gross wage of $58,000 per annum, being an approximate medium between the wages of a comparable employee for the years 2005 and 2006. This figure, he says, takes into account the fact that the plaintiff had a range of health problems which would have restricted her in her work in the years after 2006 had she not suffered injury.
[42] DCB 242
58 I have come to the conclusion that the appropriate figure which best reflects the plaintiff’s earning capacity is the gross sum she earned to the financial year ended 2005 of $69,434. In evidence, she stated that she had supervised at times and trained other employees in the use of the machinery at the defendant’s workplace. It would appear to me that she was a valued employee given the steps taken by the defendant to maintain her employment, notwithstanding the extensive time she spent away on sick leave. The phrase “earning capacity” means the plaintiff’s capacity to work, expressed as gross income. There is no medical evidence to suggest that the plaintiff would have been unable to continue in employment, and no evidence to suggest that absent the injury, her capacity would be reduced. In those circumstances it appears to me that the appropriate weekly figure to consider as the plaintiff’s earning capacity is therefore $1,335 gross per week.
59 The next part of the formula to consider is:
“The worker’s gross income from personal exertion which the worker is …
capable of earning in suitable employment.”
60 “Suitable employment” is defined in s.5 of the Act to be work for which the worker is suited taking into account, inter alia, the worker’s age, education, skills and work experience and, the worker’s place of residence. There is little doubt that there would be a far more limited prospect for employment in Coober Pedy than Ballarat. Further, it is clear, that the plaintiff has little in the way of skills, experience and education to see her as suited to many of the positions suggested by the defendant’s vocational advisers. I accept that the plaintiff has the capacity and is likely to complete the current course she is undertaking by correspondence in business management. It is unlikely that qualification from such a course will automatically mean the plaintiff will have the capacity for employment generally in business, clerical and administrative type positions. Further, it is likely that the plaintiff will be able to spend lengthy periods of time working on a computer screen. I accept a position requiring regular computer use would cause her difficulties given her claimed pain, even accepting that that pain is mild.
61 I further have some reservations about whether the plaintiff would be able to undertake all of the employment referred to in the vocational material. I would consider the job of occupational health and safety officer as beyond her.[43] Some of the tasks in some of the other jobs she may well find difficult. However, in respect of each and every job set forth in the two vocational reports of 2007 and 2009, the gross wages do not exceed 60 per cent of the plaintiff’s wage for the 2005 year, that is, $800[44]. Therefore, in respect of each and every occupation submitted by the defendant to be appropriate, the plaintiff suffers a loss of 40 per cent or more in earning capacity.
[43] DCB 70
[44] 60 per cent of $1,335
62 I do not deem it appropriate in a case such as this to look outside the areas of proposed employment as suggested by the defendant to consider any other areas in which the plaintiff may be employed. I accept the defendant is a very substantial employer in the Ballarat region and given that it terminated the plaintiff, I accept that it was unable to find her employment within its organisation. Further, as stated, I accept that of all the jobs suggested by the defendant as being appropriate, all at full-time hours, the gross salaries all lead to a 40 per cent loss of income. The legislation reflects such a loss as being a 40 per cent loss of earning capacity.
63 In those circumstances, the plaintiff succeeds in proving loss of earnings within the formula prescribed by s.134AB(38)(e) and (f). As a result, having achieved the economic loss aspect, it must follow that the plaintiff, in addition, has suffered a serious injury in respect of pain and suffering.[45]
[45] See Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at para 63
64 I propose therefore to grant leave to the plaintiff to issue proceedings at common law, and shall make appropriate orders.
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