Watson v Coolabah Tree Outback Pty Ltd

[2011] VCC 1197

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-10-01627

GLENDA WATSON	Plaintiff
v
COOLABAH TREE OUTBACK PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 19 July 2011
DATE OF JUDGMENT:	29 July 2011
CASE MAY BE CITED AS:	Watson v Coolabah Tree Outback Pty Ltd & Anor.
MEDIUM NEUTRAL CITATION:	[2011] VCC 1197

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – injury to lumbar spine – pain and suffering and economic loss – whether consequences of the injury achieve the “serious”, alternatively the “severe” level as required.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie SC	Slater & Gordon
with Mr J Valiotis
For the Defendants	Ms K A Galpin	Hall & Wilcox
HIS HONOUR:

Preliminary

1          In the course of her employment with the first defendant, the plaintiff suffered injury to her lumbar spine, initially in June 2007 when she lifted and manoeuvred a box of chips weighing approximately 15 kilograms. She made a reasonable recovery from the injury sustained in this incident, but on 24 March 2008, again in the process of lifting a box of chips, suffered further injury to her lower spine. As a result, the plaintiff claims that she has been unable to resume any form of employment, has suffered ongoing pain and limitation of movement in the lumbar spine, and a range of recreational, domestic and social activities have been significantly restricted.

2 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment between June 2007 and March 2008, and in particular on 24 March 2008.

3          Mr McGarvie, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine.

4          In addition, he also stated the plaintiff had suffered a permanent severe mental disorder in the nature of a Major Depressive Disorder.

5 The application is thus brought under sub-sections (a) and (c) 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.

6          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 of the spine are at least “very considerable” and more than “significant” or “marked”. In the alternative, the plaintiff must prove, the onus being upon her, that the consequences emanating from the psychological disorder may be fairly described as more than “serious” to the extent of being “severe”. The authorities have defined the word “severe” as being a word of stronger force than “serious”.

7          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 possible impairments or losses of body function; alternatively, mental disorders.

8 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 that part of 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.

9          The plaintiff, her general practitioner, Dr Jain, and the consultant occupational physician, Dr Castle, were called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, various medical and radiological reports, occupational assessments and related material were tendered in evidence. I have read all the tendered material.

10        On behalf of the defendants, Ms Galpin outlined the position of her clients in response to the application as follows:

• She submitted the plaintiff suffered discrete injuries in two separate incidents, one in June 2007 and the other in March 2008, and the consequences of those discrete injuries could not be aggregated.

• The plaintiff had suffered both physical and psychological consequences and the obligation was upon the plaintiff to disentangle one from the other.

• She submitted that the consequences to the plaintiff in respect of the physical injury did not meet the “serious” level and the consequences in respect of any psychological sequelae did not meet the “severe” level as the legislation required.

Relevant Background

11        The plaintiff was born in 1957 and is now fifty-three years of age. She is married with three adult children. She completed secondary school to Form 4 and then attended Stott’s Business College.

12        The plaintiff had a range of employment, including working in accounts, retail sales and service, as a receptionist, was employed at the Wandong Post Office General Store for eight years and then commenced, in 2005, as a cook and counter hand at the Coles Express at Bunker Hill. In 2006, the first- named defendant took over the business and the plaintiff remained working in the same capacity.

13        As part of her duties, the plaintiff was required to enter a cool room at the premises, lift and manoeuvre various boxes of food out of the cool room and take them to a cooking area. Sometimes a trolley was used, but sometimes boxes, including 15-kilogram boxes of chips, had to be lifted and manoeuvred by hand. According to her affidavit,[1] she complained to the first defendant

[1]             Plaintiff’s Court Book (“PCB”) 28

that the lifts were too heavy in the confined spa ce.

14        For a period up until approximately September 2007, the plaintiff had reduced her otherwise full-time hours to three days a week, to enable her to spend the other three days undertaking a hairdressing course. After September 2007, she resumed full-time duties working for the first defendant. In addition to cooking and counter service, she did undertake some supervisory duties in earlier employment.

15        According to her affidavit,[2] before March 2008 the plaintiff enjoyed social and recreational activities, including going camping with her husband, dancing and an involvement with her grandchildren. She further said[3] that she enjoyed craft work and watching her son, who was an accomplished wood chopper, compete.

[2]             PCB 31

[3]             PCB 32

16        Before June 2007 she was in good health, in particular she had no problems of any significance with her lower back. She was involved in a range of domestic duties, including cooking, cleaning and the like.

The Injury and its Consequences

17        In June 2007, the plaintiff entered the cool room at her work premises to pick up a box of chips. As she was coming out, and in the process of manoeuvring the box which she claims was difficult due to the confined space,[4] she felt pain in her lower spine. She states that she reported the matter to her supervisor and filled in a form. In the course of cross-examination, she said that her supervisor advised her not to submit the form, because of the unnecessary paperwork it would create, but to have physiotherapy treatment which she suggested the plaintiff pay for. She did not attend a doctor, but went for four physiotherapy appointments. She continued to work with some ongoing pain, but resumed full-time duties. As stated, she was working three days per week until September 2007, the other three days being taken with

[4]             PCB 28

the hairdressing course. She made a reasonable recovery fro m this incident.

18        On 24 March 2008, the plaintiff was again lifting a box of chips from the cool room to put it on a trolley outside. This required her to bend over, pick up the box and then walk backwards out of the cool room. As she turned to exit the cool room, she twisted and felt pain in her back. She reported the incident the next day. The pain was in her lower back, to the left side.

19        The next day, 25 March 2008, the plaintiff went to see her general practitioner, Dr Jain, and gave a history of the earlier strain in June 2007, as well as the episode of 24 March 2008. He diagnosed a back strain caused by the repeated lifting and moving of the heavy boxes at work, aggravated in June 2007 and March 2008.[5] He prescribed painkillers and referred the plaintiff again for physiotherapy.

[5]             PCB 55

20        Dr Jain also referred the plaintiff for a CT scan of her lumbosacral spine[6] which showed minor facet arthropathy and minor bulging at L4-5. Facet joint arthropathy was also seen at L5-S1.

[6]             Defendants’ Court Book (“DCB”) 1

21        He then referred the plaintiff to Mr Michael Johnson, orthopaedic surgeon, in July 2008. Two letters from Mr Johnson to Dr Jain of July 2008 were tendered into evidence.[7] When he examined the plaintiff, she complained of frequent left-sided low-back pain and occasional left leg numbness. Her condition had improved over the previous two months. She said she had difficulty with the heavier domestic activities, and was taking six to eight Panadeine a day. He noted that straight leg raising was full and there was no neurological abnormality. He said the CT and MRI scans showed only minor degenerative change at the two lower levels, and no evidence of disc prolapse, nerve root compression or the like. He said there was no indication for any surgical intervention and that she should be managed conservatively.[8]

[7]             Exhibit 4

[8]             PCB 55

22        In September 2008, Mr Johnson referred the plaintiff to Dr Clayton Thomas, pain management specialist. Throughout this time, the plaintiff was complaining of left lower back pain and reported to Dr Clayton Thomas that her legs would go numb when she was in a car. Dr Jain had been prescribing pain-relieving medication, including Panadeine Forte and Tramadol. Dr Thomas said that there was little to be seen upon the radiology, save for very minor degenerative changes in the facet joints.

23        On 22 September 2008, facet joint injections were performed at his behest which provided no pain relief but rather, according to the plaintiff, increased her pain. He recommended a range of treatment, including exercises, weight loss and stretching.[9] Dr Thomas continued to treat the plaintiff and in 2009 the plaintiff underwent a pain management program which included physiotherapy, instructions as to exercise and psychological counselling. She said this program provided some assistance, in particular with finding ways to cope with the pain.

[9]             PCB 62

24        When seen again by Dr Thomas in January 2010, and then July 2010, the plaintiff complained of persistent left-sided lower back pain. Dr Thomas found her spinal movements grossly limited and that she walked with an antalgic gait. He considered that her problems had progressed over the period. He considered that she did not have a capacity for pre-injury duties and suggested that she continue the exercise program. In his report of April 2009,[10] Dr Thomas said that the plaintiff had the ability and experience to work in an office environment but that at her age, some retraining would make her a more attractive employment prospect.

[10]           PCB 62

25        The plaintiff was treated with physiotherapy treatment by Mr Christian Barton of Kilmore in 2008 and 2009[11]. The treatment was helpful, but its ongoing funding was not granted by the WorkCover Authority.

[11]           PCB 68-75

26        The plaintiff’s pain has continued through until the present time. She sees Dr Jain on a regular basis, and he prescribes pain-relieving and other medication, including:

ƒ	Zydol – 50 milligrams – 1 to 2 per day (pain relief)
ƒ	Durotram – 100 milligrams – twice per day (pain relief)
ƒ	Alexan – 20 milligrams – 1 to 2 per day (anti-depressant)
ƒ	Seroquel – 25 milligrams – 1 per day (to assist with sleep)
ƒ	An anti-hypertensive.

27        As a result of the pain both in her back and referred pain to both legs, the left being the worse, the plaintiff claims that she cannot sit or stand for long periods of time. She states that bending, twisting and stretching causes severe pain. As a result she suffers insomnia and has developed a psychological reaction. She says that she has become anxious and depressed, has had difficulties with concentration and memory.

28        She says that she can perform most of her household duties, but the heavier tasks, including vacuuming and cleaning, take a much longer period of time. She can now no longer go camping with her husband, and her relationship with him is affected. Her capacity to go dancing is greatly restricted and she no longer is involved with craft work. Driving is difficult, and she is unable to drive for more than about fifteen minutes without having to stop and rest. Her husband assists her in performing the heavier household activities, although he has suffered injuries to his spine and knee.

29        Because of the continued psychological problems, she was referred by her general practitioner to Dr Payne, psychiatrist of Kilmore, in November 2010. He arranged for a change of anti-depressant medication to which she responded positively.[12] Dr Payne diagnosed a Major Depressive Disorder of moderate severity, and his treatment included medication and counselling.[13] It was his view[14] that she should continue to see a counsellor and would, as at the date of his report of April 2011,[15] be unable to resume her pre-injury occupation. He stated:

“Her current capacity for any work would also appear to be severely restricted by her lack of mobility and fluctuating pain levels and depression levels.”[16]

[12]           PCB 39

[13]           PCB 39

[14]           PCB 40

[15]           PCB 40

[16]           PCB 40

30        He said that that incapacity for employment was unlikely to change unless there was a marked improvement in her physical symptoms. She continues to see Dr Payne and Dr Jain for ongoing conservative treatment.

31        Aside from returning to work for a day or two after the injury of March 2008, the plaintiff has not resumed any form of employment since the March incident.

Medical Evidence - Non-Treating Doctors

32        The plaintiff was examined by Mr Kenneth Myers, general surgeon, in October 2009.[17] He received a history of the injury to her back in the incident of 24 March 2008. He said that the plaintiff’s pain was related to strains to the back arising from her work activities, particularly in March 2008. He said that she had no work capacity as a cook or supervisor of a café. He “suspected” that her educational and vocational background and inability to cope with any physical work activities would make her permanently unemployable. He said he did not anticipate any future improvement.[18]

[17]           PCB 48

[18]           PCB 51-52

33        The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, in March 2011.[19] He obtained a history of injury in the first incident of June 2007, and 24 March 2008. When he examined her, she complained of low- back pain and discomfort radiating to the buttock and into the legs, mainly the left leg. She said there was numbness and tingling in the legs in vague distribution. She complained of being anxious and depressed. Mr Miller noted degenerative changes on the CT and MRI scans. He diagnosed her as suffering a musculo-ligamentous strain to the lumbar spine, aggravating the degenerative disease most likely at L4-5 and L5-S1 levels involving particularly the facet joints. He believed her prognosis was fair to poor. He said that her work had contributed to the aggravation of the spinal disease, in particular both of the incidents, especially that of March 2008. He thought that appropriate future treatment would require conservative management, rehabilitation and exercise. He said that she was not fit for her pre-injury work and could not perform work which involved repetitive bending, lifting, or lifting of weights of more than 5 kilograms. She would require the ability to be able to shift her posture on a regular basis. He said that given her age, education and work experience, a return to work would be “problematic ..”. He noted that she had difficulty with the heavier aspects of domestic work, including gardening.

[19]           PCB 42

34        In addition to his various medical reports,[20] the general practitioner, Dr Jain, was called to give evidence and be cross-examined. He agreed that the plaintiff had suffered an emotional response to the physical injury which had enhanced her pain level. When taken to his clinical notes in cross- examination, he had made few, if any, entries setting out his physical examination. Despite this, he said that he had undertaken a range of examinations and that the plaintiff’s spine was considerably restricted in movement. He agreed that his assessment was based largely upon the plaintiff’s complaints. He agreed with the assessment of Dr Thomas that the plaintiff did have the ability to work in an office environment, providing that she was not required to drive for more than fifteen minutes and had the ability to sit and stand as required. He agreed that there was nothing to prevent her from getting the train from her home in Wandong to the northern suburbs of Melbourne. In order to undertake some employment, she would require re- training.

[20]           PCB 55-60

35        The plaintiff was examined by Dr Castle, occupational physician, in February 2011.[21] Dr Castle also attended for cross-examination. According to his report, he obtained a history that the plaintiff suffered ongoing significant lumbar pain, and was restricted in a range of personal, domestic and community activities of daily living. He said the low-back pain was due to facet joint changes at L4-5. Even although the facet joint injections were not of assistance, he said that this did occur in some cases. The prognosis was guarded and her employment activities of March 2008 had aggravated the underlying degenerative condition in those facet joints. He said that she had no capacity for employment when he examined her and that that would continue indefinitely. This, he said, was because of the severity of her back pain, restricted back movement and her reduced capacity to sit, stand and walk. He said that she would require regular monitoring by her general practitioner, analgesics as necessary and physiotherapy from time to time.

[21]           PCB 76

36        The plaintiff was assessed by a range of physical and psychological doctors on behalf of the defendants. She was examined by Associate Professor John Balla, neurologist, in December 2008.[22] She complained of low-back ache towards the left buttock, made worse by certain heavier activities. Upon examination, there was general limitation of 30 per cent of normal range and some limitation upon straight leg raising. There was no back spasm. Professor Balla stated that there had been some improvement in her pain but it persisted and required heavy analgesia. He noted that radiology showed no significant abnormality. He commented that pain of this type could persist indefinitely, although he hoped the improvement would continue. There was no indication of nerve root damage nor neurological involvement. He said the pain related to the injury of March 2008 and that she would not be able to return to heavy physical work such as a cook. She would, however, be able to perform duties providing that she did not have to sit in the one position for too long and which did not involve a significant amount of lifting. He suggested the physiotherapy and hydrotherapy be stopped over a period of several months.

[22]           DCB 3

37        The plaintiff was then examined by Dr Cole, consultant psychiatrist, in July 2009. He obtained a history the plaintiff had lost confidence and self-esteem, that her appetite was only fair and that she had gained weight since the accident of March 2008. He diagnosed her as suffering a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said this would affect her activities of daily living, social functioning and concentration.

38        Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of the defendants on 3 August 2009.[23] She complained of ongoing low-back pain extending into the buttocks, with occasional leg numbness. He noted straight leg raising to 10 degrees, improving to 70 degrees in the sitting position, without muscle wasting. Like most of the other doctors, he regarded the MRI scan as showing minor degenerative change. He said that the plaintiff had suffered a soft-tissue injury in the incident of March 2008, superimposed upon pre-existing mild degenerative change. He thought that the plaintiff had a Chronic Pain Syndrome and as such had a poor prognosis. He said she was unfit to work as a cook or any other work involving bending and lifting.

[23]           DCB 17

39        The plaintiff was examined on two occasions by Mr Peter Battlay, general surgeon.[24] He also found a discrepancy in straight leg raising upon formal examination, and then when observed informally. He considered that the pain the plaintiff suffered was in excess of what one would anticipate given the nature of the injury and the radiological status. He said the plaintiff had originally suffered a strain which was transient but that she had developed clear cut functional overlay. He said the plaintiff did have a capacity for employment. By the time of his second examination in June 2011, he referred to a range of inconsistent examination findings.[25] He said there was some transient aggravation of the condition of her spine and that she would have the capacity to perform pre-injury duties. He was unable to say whether the functional overlay was conscious or unconscious. He said the plaintiff would be able to work in administration and reception, or in clerical work. Further, he said the plaintiff could work in bistro duties, customer service roles, as a general clerk, in postal retail work, as a TAB operator and console operator.

[24]           DCB 21, DCB 26

[25]           DCB 29

40        The plaintiff was examined by Mr Peter Kudelka, orthopaedic surgeon, in April 2010.[26] He said the plaintiff had back pain, stiffness, weakness and irritative sciatica associated with degenerative changes in the lower lumbar discs, aggravated by lifting at work. Like many other specialists, he suggested an exercise regime with weight reduction. He said that until her symptoms improved, she was restricted in her mobility and could not bend, stoop and lift weights in excess of 5 kilograms. Her ability to drive a car was limited to short distances. He said therefore, that the employment options as suggested of receptionist, general clerk, postal service worker, TAB operator and console operator were not appropriate at the time he examined her. He said the suggestion of further re-training was “worth pursuing”. He did not think the plaintiff could consider returning to work at the time of examination and as such had no current work capacity. He said that this would not continue indefinitely and that with a management program to be conducted over a period of six months, the situation could be reviewed. He suggested treatment would involve analgesics, weight reduction and a self-managed exercise program monitored by a physiotherapist.

[26]           PCB 31

41        Finally, the plaintiff was assessed and examined by Dr Rod Farnbach, psychiatrist, in May 2010.[27] He received a history that the injury had occurred in March 2008. He said the plaintiff had felt depressed since being injured and that depressive state was, by 2010, a Major Depressive Disorder of moderate severity. He received a history the plaintiff had suicidal thoughts but that her depression was not severe enough to stop her from working. He said, however, the plaintiff had impaired concentration, motivation and energy, and had become irritable. It would thus be harder for her to work a full day and to work effectively and to get along with her workmates. He said that her psychiatric condition affected her capacity to enjoy life. He said that she was significantly depressed and that she would require intensive treatment from a psychiatrist or psychologist. With such treatment, he believed her condition was likely to improve.

[27]           DCB 36

42        When provided with the various employment options, he said the plaintiff would “possibly” be able to cope with the various jobs listed but not on a full- time basis, and would have a limited capacity to cope with pressure. Her symptoms of low mood, depressed concentration, memory, motivation, energy and irritability would mean she would not be able to cope with full-time work. He said her condition would need to significantly improve before she could undertake full-time employment. Any such return would be structured on a gradual basis, starting with three days per week. As a result of the assessment by Dr Farnbach, the plaintiff was referred by her general practitioner to Dr Payne.

43        A discharge summary from the Dorset Rehabilitation Centre, to which the plaintiff was referred by Dr Thomas, was tendered.[28] The report indicated that the plaintiff had travelled long distances to get to the program, but had “managed this well”. The authors of the report further indicated that the plaintiff could have extended herself further in physical activities. It was said that the psychometric measures did not accurately reflect her capacity and that that perceived disability did not assist the plaintiff to return to work. The report referred to the plaintiff struggling, but lacking in motivation at times. There was evidence of “catastrophising and avoidance behaviour”.

[28]           DCB 96

Vocational Reports

44        The defendants relied upon various suitable employment options contained in the report of Work Options dated 14 June 2010.[29] In particular, the defendants submitted that the plaintiff had the capacity to undertake the following work as set forth in the report:

[29]           DCB 109

• Administration assistant – gross wage $850 per week – ten jobs were said to be advertised through the Mitchell Shire Council (within 25 kilometres);[30]

• Data entry operator – gross wage $826 per week – one job was said to be available within 30 kilometres;

• Education Aide – gross wage $600 per week – two jobs were said to be available within 30 kilometres;

• Receptionist – gross wage $712 per week – six jobs were said to be available within 30 kilometres.

[30]           DCB 118

45        In addition, the following job descriptions obtained from a “Job Search” website were tendered into evidence.[31]

[31]           Exhibit 3

• “All rounder” to work part time – 4 hours per day, 5 days per week - in a mixed business in Tooborac involving customer service and a range of other activities;

• “Food Promoter” to work 4 to 16 hours per week in merchandising and sampling in Seymour and surrounding areas.

46        According to the submissions on behalf of the defendants, the plaintiff had the capacity to undertake all of these areas of employment, commencing on a graduated basis and increasing in hours to full-time.

Credibility of the Plaintiff

47        Ms Galpin submitted that I ought to have distinct reservations about the credibility of the plaintiff. Her credibility was important as there was little to support the plaintiff’s claimed injury on the radiological reports, and aside from one finding by Mr Miller of mild lumbar muscle spasm,[32] there were no other objective findings upon examination sufficient to support the plaintiff’s claims of pain and restriction.

[32]           PCB 45

48        Ms Galpin submitted that the answers by the plaintiff in cross-examination indicated a preparedness by her to grasp any opportunity to show to the Court that she was suffering a significant disability. Ms Galpin submitted the plaintiff was disingenuous, particularly in relation to her claim that she had been advised by her general practitioner, Dr Jain, and Dr Thomas, that she was incapable of working.[33]

[33]           Transcript (T) 68-70

49        Further, Ms Galpin pointed to a range of discrepancies upon examination, particularly as to straight leg raising between the various doctors[34].

[34]           Report of Mr Johnson of July 2008 – full SLR; Mr Miller PCB 45; Mr Myers PCB 50; Dr Castle PCB80; Prof Balla DCB4; Mr Shannon DCB8; Mr Battlay DCB23, 29; Mr Kudelka DCB31.

50        Video surveillance film of the plaintiff was shown of her activities on 18 and 19 February 2010. In the course of that surveillance, the plaintiff was shown at a service station refuelling her vehicle and at one point leaning into the car. Further, she was shown walking through a car park and into a building, returning to her vehicle carrying a large plastic tub which appeared to contain a few items, and placing the tub in a car without difficulty. On a number of occasions the plaintiff got in and out of the car. The plaintiff was shown in a supermarket and at one point bent without difficulty to a lower shelf to extract an item. On another occasion, the plaintiff was seen at the Wandong Store, able to get in and out of her car and carry a plastic bag.

51        All of the movements performed by the plaintiff over these days were, to my observation, performed without apparent difficulty. The plaintiff walked in a relatively slow manner, but this did not appear to me to result from pain or restriction of movement in her spine.

52        Video surveillance ought be viewed with care. It represents a snapshot in time, and I accept that persons with back injuries are more able to move freely on some days than others. Even taking this into account, in my view the plaintiff was able to move in a free and unrestricted manner, in contradistinction to her claim that she was in constant pain, significantly restricted in domestic activities and in contrast to the histories provided to the various practitioners. In particular, the plaintiff’s explanation that she bent down to a lower shelf using her knees is not supported by the video evidence. Further her claim that she had difficulty getting into and out of her car was not apparent in the film. In the course of evidence, she said that she was accompanied by her daughter to shop ninety per cent of the time.

53        Overall, in my view there was a marked difference between her presentation on the video surveillance and her evidence and histories to the medical practitioners.

54        I accept the submission of Ms Galpin that the plaintiff used every opportunity to attempt to show to the Court the seriousness of her injury. I was unimpressed with her evidence that she was advised by her practitioners she had no work capacity when their reports told a different story. She claimed Dr Thomas completed an insurance form stating that she had no work capacity. I reject this evidence.

55        Further, I am less than impressed with the efforts made by the plaintiff to obtain employment. She admitted she had applied for a number of jobs but that was largely because she was encouraged to do so by the vocational counsellor. Given the views of particularly the treating practitioners that the plaintiff has some work capacity, she has made very little effort to attempt to obtain even part-time employment. All these matters reflect upon her credibility.

Pain and Suffering – Physical Injury

56        I accept the plaintiff suffered a relatively minor strain in the incident of June 2007. Aside from some modest physiotherapy treatment, she undertook no other form of medical treatment and returned to employment on a full-time basis. I do not regard this episode as a matter of any significance.

57        I accept that on 24 March 2008, in the course of lifting and manoeuvring a 15- kilogram box of chips, the plaintiff did suffer a strain to her lower lumbar spine. While there is some divergence of views amongst the medical practitioners as to the precise nature of the injury, I accept that the likely source is the facet joints at L4-5. I accept that the injury caused pain in her lower back from that time, and that that pain has continued through to the present. I further accept the opinion of the various practitioners that the injury has aggravated the plaintiff’s underlying degenerative disease. I reject the opinion of Mr Battlay, on behalf of the defendants, that the plaintiff suffers no ongoing problem of a physical nature, but rather her current condition is a product of functional overlay.

58        The real question is the extent of the plaintiff’s pain, and the extent to which it restricts her recreational, domestic and social activities.

59        I have distinct reservations about the plaintiff’s claim to suffer constant debilitating pain which restricts her in undertaking a range of activities, particularly around the home. This is because of the various credit issues referred to above. On the other hand however, the plaintiff has the support of a number of practitioners, in particular Mr Russell Miller, Mr Kenneth Myers and, on behalf of the defendants, Mr Peter Kudelka. Of particular significance are the views of the treating practitioners, Dr Jain, Dr Thomas and Mr Johnson. Mr Johnson was unable to find any anatomical basis for her pain and said there was no serious nor sinister pathology. I was not particularly impressed with the evidence of the general practitioner, Dr Jain, who was unable to provide any detail from his clinical notes of any examinations undertaken over the years. Nonetheless, he supported the plaintiff’s complaints of pain.

60        Dr Thomas, in his various reports, did appear to be supportive of the plaintiff’s ongoing complaints of pain. He said that the plaintiff “will have enduring and ongoing pain from her lumbar spine going forward”.[35]

[35]           PCB 65

61        While I have reservations, particularly given the video surveillance, that the plaintiff’s restriction is as significant as she makes out, I do accept that she does suffer ongoing pain and that there is restriction in her various activities to some extent. This has required the prescription of pain relieving medication and regular physiotherapy. I accept to some extent she is unable to undertake all of her domestic and recreational activities and interests in the same manner as before injury.

62        I am therefore of the view that the plaintiff does achieve the level in respect of pain and suffering as prescribed by the legislation. I am satisfied that the consequences do achieve the “very considerable” test.

Mental Disorder – Pain and Suffering

63        Given my finding in respect of the physical injury, it is not necessary for me to assess whether the plaintiff achieves the “severe” level in respect of psychological injury. I would say, however, were I to decide the matter, I am not satisfied that level is achieved. I accept that the plaintiff suffers a Major Depressive Disorder of moderate severity and that that condition does give rise to symptoms including difficulties with concentration, depression, anxiety and the like. It has required treatment by her general practitioners in the form of anti-depressant medication, and more recently a referral to Dr Payne, psychiatrist. However, given the higher bar in respect of psychological injury, the symptoms do not, in my view, reach the severe level. There has been no hospitalisation, lengthy treatment or the consequences one sees in significant psychiatric injuries. Further, although the prognosis expressed by Dr Payne was guarded,[36] the defendants’ psychiatrist, Dr Farnbach, considered that with intensive treatment it was likely her condition would improve. Dr Payne’s treatment commenced only in November 2010 and as a result, there has been some improvement. I am not thus satisfied that her current psychological state is permanent.

[36]           PCB 40

Economic Loss

64        There are various views amongst the medical practitioners at to the plaintiff’s capacity for work. Dr Castle is a specialist occupational physician, but has seen the plaintiff only on one occasion. While in his report he said the plaintiff had no work capacity, in cross-examination, he conceded she may be able to work in appropriate employment for fifteen to twenty hours per week.

65        Mr Miller thought the plaintiff was unfit for pre-injury work, and was restricted in any work that she could undertake. Given her age and education, a return to work would be “problematic”.

66        Mr Myers considered that given the plaintiff’s educational and vocational background and restrictions in physical work activities, she was permanently unemployable.

67        On behalf of the defendants, Professor Balla accepted the plaintiff could not return to work as a cook but could perform duties where she did not have to sit or stand for long periods.

68        Mr Shannon restricted the plaintiff’s work to occupations where she did not have to do much bending or lifting.

69        Mr Kudelka thought the plaintiff would be able to cope with the various job options as suggested, although not on a full-time basis.

70        Again of significance in my view are the opinions of the treating practitioners. Mr Johnson does not give any opinion as to the plaintiff’s work capacity. In cross-examination, Dr Jain conceded that the plaintiff would have the ability to work in an office environment providing she was able to change position freely, and not drive for more than fifteen to twenty minutes. Of most significance in my view is the opinion of Dr Thomas, who treated the plaintiff regularly in 2009 and 2010. In his first report,[37] he considered the plaintiff had the ability and experience to work in an office environment, albeit with some re-training. In his second report of October 2009,[38] he stated that the plaintiff had a work capacity, but not for unrestricted physical work. Finally, in his report of April 2011, he said that the plaintiff did not present with a work capacity to perform pre-injury duties. Taken together, in my view, Dr Thomas’ opinion is that the plaintiff does have a work capacity for work in an office environment, albeit with the requirement that she undertake some re-training. I note that the plaintiff has had extensive experience in a range of clerical or administrative jobs, including as a receptionist, in accounts, as a supervisor and in a general store, and in the past has been able to adapt to new areas of employment. The plaintiff said in evidence that she would be prepared to upgrade her skills.[39]

[37]           PCB 62

[38]           PCB 65

[39]           Transcript 72

71        In considering the plaintiff’s work capacity, I should bear in mind the definition of “suitable employment” as set forth in the Act. This requires me to take into account the nature of the injury, the plaintiff’s age, education, skills and work experience and her place of residence. She lives at Wandong, a distance of an hour or so from Melbourne. However, in my view, she has the capacity to undertake train travel. There is a train station nearby. While at fifty-three, employment at her age would not be straightforward, she does have extensive experience in a range of clerical and administrative positions.

72        I should also bear in mind my reservations as to the plaintiff’s credibility. For the reasons earlier stated, I am of the view the plaintiff is making the most of her injuries. None of the doctors who gave an opinion as to work capacity had the opportunity to assess the plaintiff as I did, particularly in relation to the surveillance. I am further unimpressed with the attempts by the plaintiff in rehabilitation and re-training. She has made a cursory effort to apply for jobs. She has made no effort to re-train. I am of the view she has a work capacity beyond that which she has stated in her affidavits and to the doctors. The onus is upon the plaintiff to prove that she has suffered a loss of earning capacity equivalent to 40 per cent of her without injury earnings. In my view, from the perspective of her physical injury, the plaintiff has the capacity to work in full-time employment in one or some of the various occupations suggested in the “Work Options” report. Such employment would probably require some form of re-training, and probably require the plaintiff to commence on a structured basis, initially part-time.

73        The plaintiff also maintains that she has a significantly reduced work capacity in respect of psychiatric injuries. Dr Farnbach considered the plaintiff did have a work capacity, but that any entrance into the workforce ought be delayed until her condition had improved. Dr Payne considered the plaintiff would not be capable of returning to her pre-injury work and that her current capacity for work would be restricted by her lack of mobility and pain levels, together with depression. His assessment thus takes into account physical as well as psychological symptoms.

74        Again, from a psychological perspective, I have reservations about the plaintiff’s claim that the psychological symptoms would significantly impair her capacity for employment. In my view, the plaintiff does not achieve the statutory test on the grounds of psychological injury.

Conclusion

75        I propose to grant leave to the plaintiff to bring proceedings in respect of pain and suffering damages. The plaintiff’s application in relation to economic loss fails.

76        I shall make consequent orders as to costs.

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