Watts v Woolworths Limited
[2014] VCC 1341
•2 September 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-05984
| LYNDELL WATTS | Plaintiff |
| v | |
| WOOLWORHTS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 18 and 19 June 2014 | |
DATE OF JUDGMENT: | 2 September 2014 | |
CASE MAY BE CITED AS: | Watts v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1341 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the low back – pain and suffering and loss of earning capacity damages – disentanglement – nature and extent of organic component
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Giankos vSPC Ardmona Operations Limited (No 2) [2009] VCC 1461
Judgment:Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and economic loss as a result of her employment with the defendant, in particular, on 8 April 2006 and 18 June 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr A Macnab | Slater & Gordon Ltd |
| For the Defendant | Mr S Smith | Sparke Helmore |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant, in particular, on 8 April 2006 and 18 June 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the low back.
6 The plaintiff relied upon two affidavits sworn by her on 10 October 2012 and 9 May 2014. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits and evidence; however, I refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of or in the course of, or due to the nature of, her employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of her impairment to the low back in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
(d) Psychological or psychiatric consequences must not be taken into account in relation to a physical impairment or loss of body function injury. This is required to be excluded by s134AB(38)(h) of the Act.
[4]Section 134AB(38)(b) and (c) of the Act
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section 134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[6]
[6]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[7] and
(c) that even with rehabilitation and re-training, she will still sustain a loss of 40 per cent or more.[8]
[7]Section 134AB(38)(e)(ii) of the Act
[8]Section 134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both for pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11](supra) at paragraph [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
14 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[13]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[14]
[13]Section 134AB(38)(j) of the Act
[14] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
16 Counsel for the defendant informed the Court there are three issues:
(i) Disentanglement of the psychiatric and physical aspects of the plaintiff’s presentation;
(ii) The question of permanency; and
(iii) Whether the plaintiff discharges the onus that she has lost at least 40 per cent or more of her earning capacity within the statutory definition.
Investigations
17 On 29 June 2006, a CT scan of the lumbar spine concluded:
“Transitional lumbosacral vertebra which has been labelled S1 for the purposes of this examination.
No disc prolapse or nerve root compression.
Changes consistent with old Scheuermann’s disease at the thoracolumbar junction.”
18 On 7 July 2008, a CT scan of the lumbar spine concluded:
“Transitional vertebra which probably represents an incomplete lumbarised S1.
There was a right-sided disc protrusion at the transitional lumbosacral joint and a left-sided protrusion at L5/S1 on the left possibly compromising the descending left nerve root at this point.
Possible old Scheuermann’s disease at the thoracolumbar junction.”
19 On 12 August 2008, an MRI scan of the lumbar spine concluded:
“Lower lumbar intervertebral disc derangement particularly at the L4/5 and L5/S1 levels, with possible impingement on the L5 and the right S1 nerves as they emerge from the thecal sac at the level of the L4/5 and L5/S1 intervertebral discs respectively.
20 On 27 April 2009, an MRI scan of the lumbar spine concluded:
“Transitional lumbosacral anatomy is seen with two levels (L4-5 and L5‑S1) disc degeneration. Small left para-central protrusion with annular fissure is demonstrated at L4-5 with mild mass effect on the right S1 nerve with larger right para-central protrusion at L5-S1 with posterior displacement of the right S1 nerve.”
21 On 27 June 2012, an MRI scan of the lumbar spine reported:
“Loss of disc signal consistent with desiccation is seen at the L4-5 level with some early changes also at the L5-S1 level. High signal in the annulus of the L4-5 disc posteriorly is consistent with a radial annular tear.
There is an associated minor central disc bulge touching the anterior theca. No progressive disc protrusion. The central spinal canal is capacious. Individual nerve roots exist without impediment. The degree of disc space narrowing is unchanged and remaining lumbar discs have an unrelated appearance.”
The Plaintiff’s medical evidence
Dr Andrew Mitchell
22 On 31 July 2008, Dr Mitchell, general practitioner, confirmed the plaintiff had an exacerbation of an old back injury sustained two years ago at Safeway. She suffered six weeks of low-back pain associated with lancinating left leg pain. She had persistent pain despite multiple analgesics and prednisolone. The pain was exacerbated by working at the check-out. A CT scan confirmed a likely left L5-S1 disc protrusion with probable neurocompression of the exiting nerve root. The plaintiff was referred to orthopaedic surgeon, Mr David de la Harpe, in August 2008. In June 2009, she was referred to the Geelong Hospital Pain Clinic.
23 In May 2014, Dr Mitchell diagnosed injuries of L4-5, L5-S1 disc protrusion which occurred while the plaintiff was working with the defendant. He said her condition was stable and that she suffered daily back and leg pain, which fluctuated in intensity. For pain relief, her treatment included Tramadol, hydrotherapy and physiotherapy. Dr Mitchell said the plaintiff was restricted in her capacity to move her lumbar spine, in particular, bending and lifting. She struggles with activities of daily living, such as cleaning her house. She suffers with prolonged periods of standing.
24 It was Dr Mitchell’s opinion that the plaintiff did not have the capacity to perform her pre-injury duties either on a part-time or full-time basis. He said her prognosis is guarded with regards to future improvement. He said she potentially had the capacity for another role not involving lifting, bending or prolonged standing, potentially administrative or office duties, which would not require heavy lifting, repetitive bending or twisting. He said the maximum hours she could work would be between 12 to 15 hours per week, and that she would require re-training.
Mr David de la Harpe
25 In September 2008, Mr de la Harpe, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s general practitioner. It was his opinion that the plaintiff had suffered predominantly left leg pain at work, which was running in the S1 distribution. She had now developed right leg pain and was suffering paresthesia down the left leg. He said there was insufficient MRI scan evidence to warrant surgery. He suggested physiotherapy, stabilising exercises and some hydrotherapy.
26 In February 2009, Mr de la Harpe reviewed the plaintiff when she complained of equal amounts of low-back pain and left leg pain which she reported as being 10 out of 10 on the Visual Analogue Scale. He recommended a left-sided L4-5 epidural injection, which was performed in 2009. She reported increased back and leg pain as a result of the injection. He recommended a repeat MRI scan. Mr de la Harpe said the plaintiff should be managed conservatively. He said her prognosis was not good and she will always have some back pain.
Mr Peter Wilde
27 In June 2013, Mr Wilde, orthopaedic surgeon, confirmed that he treated the plaintiff on referral from her general practitioner in August 2009, and re-examined her in June 2013 for the specific purpose of providing an up-to-date medical report. It was his opinion the plaintiff’s diagnosis was an annular disc tear of the L4-5 disc. He thought the physical injury had healed substantially. He said the plaintiff had developed a secondary Pain Syndrome with an increasing psychological component. He accepted that the plaintiff’s work duties with the defendant were a material contributing factor. He thought the non-organic component was the dominant feature in 2013.
28 Mr Wilde said the current diagnosis is chronic lumbar Pain Syndrome with mixed physical and non-organic aetiology. He said, as a consequence of the plaintiff’s physical injury, she is restricted in bending, lifting and twisting, which will continue into the foreseeable future. He said the consequences of the impairment to the plaintiff’s low back are restrictions in any activity that involves heavy bending, lifting or twisting – whether social, domestic or recreational. He said those restrictions will continue into the foreseeable future, and the plaintiff’s prognosis is guarded. She cannot return to full duties. He thought she had a capacity for part-time employment in light or sedentary duties. He said the plaintiff’s remote place of residence will make it difficult for her to find suitable work.
29 Mr Wilde said the plaintiff’s current treatment for pain management was appropriate and she should continue with treatment under Dr Vagg’s care.
Dr Michael Vagg
30 Dr Vagg, rehabilitation physician and pain medicine specialist, confirmed that he treated the plaintiff on referral from her general practitioner, commencing in December 2009. In February 2013, Dr Vagg confirmed he saw the plaintiff on three occasions. It was his view that surgery was probably best avoided. His most recent examination of the plaintiff was in October 2012. He referred the plaintiff for participation in the Back Pain Program at Geelong Private Hospital for a more comprehensive team-based approach.
31 Dr Vagg believed the plaintiff’s medical condition had stabilised. He thought it unlikely that there would be further spontaneous improvements. He said the level of her symptoms will vary in accordance with the effectiveness of palliative-type management. She will require medical management, as well as self-management skills. He considered her impairment was permanent. He said she will require ongoing management by a specialty pain service.
Mr Justin Hunt
32 In December 2011, Mr Hunt, orthopaedic and spinal surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He diagnosed symptomatic lumbar spondylosis (degenerative disc disease and facet joint arthritis), with chronic lower back and left leg radicular pain symptoms, secondary to a disc prolapse. He confirmed that her clinical presentation matched imaging findings. He accepted that the plaintiff’s injury was work related and represented an aggravation of pre-existing degenerative change in the lumbar spine. He said the plaintiff’s physical injury alone would significantly limit her ability to perform the following activities for the foreseeable future, namely:
(a)bending, lifting, twisting or stooping;
(b)pushing, pulling or lifting;
(c)repetitive and/or prolonged use of the lower back;
(d)prolonged sitting, walking or standing;
(e)walking up inclines or down inclines; and
(f)using steps or ladders.
33 Mr Hunt did not believe the plaintiff could perform her pre-injury duties, and he believed this was permanent. He thought it would be difficult to envisage that the plaintiff, with her physical injuries, could perform suitable employment, taking into account her age, experience and education, and due to the ongoing nature of her pain symptoms. He believed her incapacity is likely to persist into the foreseeable future.
34 Mr Hunt said the plaintiff experienced a moderate to severe degree of incapacity in relation to her normal social, domestic and recreational activities, which is likely to continue into the foreseeable future. He said the plaintiff will require ongoing analgesics for the management of her pain symptoms. He did not believe any further specialist review was required.
Medical Panel Opinion
35 In October 2012, the Medical Panel’s opinion was that the plaintiff had a 5 per cent whole person impairment resulting from the accepted low-back injury when assessed in accordance with s91 of the Act, which is permanent. The Medical Panel said the plaintiff did not have an accepted injury which has resulted in a total loss injury mentioned in the table in s98E(1).
Dr Robyn Horsley
36 In January 2013, Dr Horsley, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. It was Dr Horsley’s view that the plaintiff sustained an annular tear at L4-5. Due to the poor blood supply to discs, it is unlikely to heal and remains an ongoing pain generator. Dr Horsley accepted that work was a significant contributing factor. She said the plaintiff had reached maximum medical stability. She said the plaintiff suffered the following work restrictions:
·avoidance of repetitive overreaching, pushing and pulling;
·avoidance of working in awkward and confined spaces;
·avoidance of repetitive bending and lifting, and truncal rotation;
·good manual handling technique, even when lifting light items.
37 Dr Horsley said the plaintiff’s functional tolerances were poor and include:
·a sitting tolerance of 30 minutes;
·a static standing tolerance of 30 minutes;
·a dynamic standing tolerance of up to an hour;
·a walking tolerance of between 10 and 20 minutes;
·only a local driving tolerance.
38 Dr Horsley said the above restrictions apply to the plaintiff’s social, domestic and recreational activities, are permanent, and will continue into the foreseeable future.
39 Dr Horsley said the plaintiff is permanently unfit for her pre-injury role within a supermarket environment. The critical physical demands are beyond her capacity. Supermarkets have been her primary source of work. She has limited transferrable skills. Her educational background is very limited, with the completion of Year 6 and the commencement of Year 7.
40 Dr Horsley said the plaintiff’s transferrable skills are therefore in the manual arena, and the injury from which the plaintiff suffers is significant to such a worker. The plaintiff requires re-training and upgrading of her skills to enable her to move into a less manual role. Without considerable re-training and upgrading of skills, as well as addressing her significant level of deconditioning, she will remain off work into the longer term.
41 Dr Horsley said the goal is for the plaintiff to return to work in the vicinity of 15 to 20 hours per week. Her reliability would be poor, and will continue to be poor unless her medication is reduced and her functional tolerances are improved.
42 Dr Horsley said the plaintiff was diagnosed by psychiatric colleagues with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. According to the Beck Depression Inventory and the Beck Anxiety Inventory, her level of Depression and Anxiety was moderate.
Dr David Middleton
43 Dr Middleton, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor in July 2013 and May 2014. It was Dr Middleton’s opinion that the plaintiff suffered derangement of the L4-5 and L5-S1 discs, initially without protrusion, in the course of her employment on 8 April 2006. Further, as a result of the deranged discs at L4-5 and L5-S1, the plaintiff suffers with ongoing lumbar instability, resulting in continuing nerve root irritation.
44 Dr Middleton said there was an incomplete recovery, forcing the plaintiff to reduce her work hours from 32 hours to 18 hours per week, working lighter duties. When the plaintiff was placed into a position as a check-out person on the main register, her work required constant, repetitive and awkward manual handling, including heavy weights, that substantially aggravated the underlying condition. This resulted in disc protrusions to the left at L4-5, associated with an annular fissure known to be painful, and a disc protrusion to the right at L5-S1, resulting in predominantly left-sided radicular symptoms.
45 A sequelae of the plaintiff’s loss in physical capacity has been the development of a Chronic Adjustment Disorder with significant Depression and ongoing Anxiety.
46 In May 2014, Dr Middleton said the plaintiff remained depressed and anxious. It was his opinion that the plaintiff’s initial injury in June 2006 never fully resolved and was significantly aggravated by work in July 2008.
47 It was his opinion that the physical injury and impairment of the plaintiff’s low back alone precluded her from performing her pre-injury duties for the foreseeable future.
48 Dr Middleton said the plaintiff did not have the capacity to perform suitable employment.
49 Dr Middleton gave the opinion that the plaintiff was highly unlikely to obtain paid employment in the open employment market in her area, noting the plaintiff’s age of forty-two years, her living in Leopold, her driving endurance limiting her to the local area, and noting public transport is limited. He said her physical capacity is clearly unreliable. She may attend employment in non-manual work between two to four consecutive days in any one week, for one or two hours per day, with her maximum work hours being twelve hours in any one week. It was his opinion that in the absence of upskilling and vocational re-education, the plaintiff currently does not have the capacity for suitable employment.
50 Dr Middleton said the plaintiff’s capacity for suitable employment was dependent upon her acquiring adequate skills for roles that do not rely upon a reasonable and reliable physical capacity for work. In his opinion, without vocational re-education, the plaintiff’s safe residual capacity is not sufficient to allow her to utilise her transferrable skills which are entirely related to her work experience. He noted she has no qualifications beyond completing Year 10; however, the evidence was that her education was Year 6. He further said that, from a purely physical point of view, for the work to be safe it must be self-paced, enabling the plaintiff to change posture on an “as needs” basis and take rest breaks as required. There must be recognition by the employer that the plaintiff’s safe residual physical capacity is not always reliable and her attendance at work and time of arrival cannot always be relied upon. He said these restrictions are likely to last for the foreseeable future.
51 In a third report, Dr Middleton considered the Vocational Assessment Report dated 23 September 2013 provided by Carfi, the author being Ms Adam, psychologist. In that report, Ms Adam identified the following employment options in order of priority:
(i) Front desk attendant
(ii) Receptionist/medical receptionist
(iii) Information officer
(iv) Education and training lecturer.
52 Dr Middleton considered the requirements of each of the identified employment recommendations. In respect to the front desk attendant, Dr Middleton said the assessment was inadequate in regards to addressing the physical requirements of the work and the need for, in particular, adequate commercial computer skills. He noted there were only two vacancies in this role and no account had been taken for the fact that the plaintiff has not worked beyond eighteen hours a week, and not for many years. He thought it unrealistic that the plaintiff would be considered in a competitive employment area, over and above a person with adequate physical capacity and skills to perform the role of a front desk attendant.
53 In respect to an information officer role, he said the job would not be suitable for the plaintiff, as the assessor has assessed the role as sedentary, even though there is lifting and bending required. In Dr Middleton’s experience, the work is computer-based and the plaintiff has no formal qualifications in this area. There are no current vacancies, and the plaintiff would be at a considerable disadvantage in obtaining paid employment in this area, where her physical restrictions are substantial and her skill base limited.
54 In respect to a receptionist/medical receptionist, Dr Middleton said the plaintiff would be unsuitable for this work. He said the author of the report shows a lack of knowledge of the work entailed. He said the plaintiff had neither the safe physical capacity nor the skill base to obtain employment, and it would be unrealistic that she would be chosen in an open employment market.
55 In respect to a vocational education and training lecturer role, Dr Middleton said the plaintiff did not have an adequate safe physical capacity or skills in training or assessment to apply for such a job. Dr Middleton said the assessment by Alycia Adam was inadequate. He said she ignored the advice provided by Mr Dooley and Mr Buzzard and developed a series of physical restrictions which she applied to the suitable employment options, in the absence of an adequate assessment of the physical requirements of the inherent work to be undertaken.
Mr David Brownbill
56 In September 2013, Mr Brownbill, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He obtained a history of the plaintiff injuring her back in April 2006 as she was unloading pallets of stock, and noted the onset of low-back pain, which gradually increased, and that she consulted her local doctor the following day. She was off work for eight months. Her pain improved gradually, but never went away completely. She returned to light duties, working eighteen hours a week.
57 On 18 June 2008, the plaintiff was working on a register and was required to lift the heavier items from the counter, twist and place them into bags. She noted a gradual increase in low-back pain, without any specific incident, which became progressively more severe. She consulted her local doctor.
58 It was Mr Brownbill’s opinion that the plaintiff sustained lower lumbar invertebral disc derangement with further aggravation as a result of the described heavy physical work and activities. He said her condition had stabilised and that work was a material contributing factor. He said that, from a physical perspective alone, she was likely to have difficulty performing any employment for which she is suited in an ongoing and reliable fashion. He said if she were able to attempt a specific return to work program that avoided heavy lifting, forced spinal movement, repeated bending or prolonged standing or sitting, the program should be performed in a gradual fashion under close medical supervision. He said the number of hours she could return to work would be dictated by her response. He considered the activity restrictions he imposed in relation to work would apply to her social, domestic and recreational activities for the foreseeable future.
59 Mr Brownbill reiterated his comments in a report dated April 2014. He said there was no abnormal illness behaviour during her examinations and he considered, from a neurosurgical point of view, that there is ongoing organically-based pain.
The Defendant’s medical evidence
Mr Brendan Dooley
60 In August 2011, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. He diagnosed aggravation of L4-5 disc degenerative changes on the left side, with a small probable disc prolapse at the L4-5 level as the cause of her back pain, and left sciatica. He believed there was a direct relationship between the plaintiff’s employment and the injuries sustained. He said her current injury is an exacerbation of the pre-existing injury to her lower back in 2006. Her employment on 18 June 2008 was a significant contributing factor to this exacerbation. Her employment continues to be a significant contributing factor in the exacerbation of the previous low-back injury. He said the plaintiff has no capacity for pre-injury employment. He said she might be able to return to suitable lighter work, particularly on the express lane or in check-out work, not involving lifting of weights over 2 to 5 kilograms. He said it was over three years since the accident and he feared that the total incapacity is likely to continue for at least one to two years, possibly indefinitely. He found there was no evidence of functional overlay or exaggeration of symptoms or disability. He was aware of her depression,
Associate Professor Anthony J Buzzard
61 In July 2012, Associate Professor Buzzard, general surgeon specialising in spine and upper and lower limbs, examined the plaintiff at the request of the defendant’s solicitor. He diagnosed a low-back pathology suggestive of a disc prolapse with left-sided and, to a lesser degree, right-sided sciatica. He accepted that the plaintiff’s work with the defendant was a significant contributing factor to her problems. He thought the most significant of the two specified incidents was the second. He was aware that the plaintiff suffered from depression for two years. She reported to him that since she had seen a psychologist, and taken anti-depressant medication, she was okay. Associate Professor Buzzard only addressed the plaintiff’s organic injury.
62 In August 2013, Associate Professor Buzzard said that nothing had changed since he last saw the plaintiff in relation to her employment capacity. He said she continued to be unable to work in a job involving heavy lifting, bending and stooping. She is not capable of pre-injury employment, and this is not likely to change in the future. He thought it would be prudent for her to be re-trained for suitable employment. He said the plaintiff’s back condition had arisen out of the course of her employment as a bottle shop assistant/cashier in April 2006. Her further employment as a check-out operator on 18 June 2008 has been a significant contributing factor to her back condition. He said, on the information available, he thought it appeared more likely than not that the first injury is twice as significant as the second injury,[15] and that her employment was a significant contributing factor to her back condition. He imposed restrictions of no bending, lifting or stooping.
[15]This is inconsistent with his first report of 12 July 2012.
63 Associate Professor Buzzard said he did not think the plaintiff’s back condition would have occurred regardless of the injury in April 2006. He did not think the back condition would have arisen regardless of the injury of 18 June 2008. He thought the effects of the work-related aggravation of the injury of 18 June 2008 have not ceased.
64 Associate Professor Buzzard could find no evidence of any voluntary or involuntary exaggeration of symptoms or restrictions.
65 Associate Professor Buzzard was provided with the Vocational Assessment Report of Carfi. He thought the employment options identified in the report could reasonably be performed by the plaintiff.
Dr Dush Shan
66 In July 2011, Dr Dush Shan, psychiatrist, examined the plaintiff at the request of the defendant. He said the plaintiff presented as mildly depressed and predominantly quite anxious about her condition. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood that had developed as a consequence of, or secondary to, the injury of 2008. He said her employment was a significant factor. He said her condition is described as mild and controlled, and does not contribute to any incapacity for work.
Vocational assessments
Carfi Vocational Assessment Report
67 In September 2013, Alycia Adam, psychologist/workplace rehabilitation consultant, interviewed the plaintiff and was provided with medical reports from Mr Keith Elsner, Mr Brendan Dooley, Associate Professor Anthony J Buzzard and Mr Dush Shan. She was also provided with the plaintiff’s affidavit sworn 10 October 2012. She was unable to make contact with Dr Mitchell, the plaintiff’s treating general practitioner. She identified the following vocational options as suitable:
(i) Front desk attendant
(ii) Receptionist/medical receptionist
(iii) Information officer
(iv) Vocational education and training lecturer.
Video surveillance
68 Counsel for the defendant admitted that the plaintiff had been the subject of surveillance. I was shown no surveillance. While I cannot speculate as to what the surveillance would have shown, I can be satisfied that it did not assist the defendant’s case.
Credit of the Plaintiff
69 The plaintiff answered questions directly. The plaintiff was consistent with what she told doctors as they recorded her history. Overall, I was of the view her credit was intact. I noted that a number of the medical witnesses stated that she did not exaggerate her condition.[16] The plaintiff made appropriate concessions. She said she did not state to doctors matters they had recorded, but said she stated a variation. The evidence was that the plaintiff had been keen to return to work and increase her hours of work after the first injury.
[16]Mr Brownbill, Dr Horsley, Mr Dooley and Associate Professor Buzzard
Analysis of the evidence
70 It was accepted by the defendant that the injury was work related.
Course of employment injury
71 Counsel for the defendant submitted there were two separate injuries, despite not identifying it as an issue when asked to identify the issues in the proceeding.
72 Counsel for the plaintiff opened on the basis that the plaintiff suffered an injury to her low back over the course of her employment and, in particular, on 8 April 2006 and 18 June 2008.
73 The plaintiff’s evidence to all the medical witnesses was consistent with the medical records of the treating general practitioners. In this case, the plaintiff consulted a general practitioner in Ocean Grove, as well as a general practitioner in Tullamarine.
74 The evidence was that in April 2006, the plaintiff was working in the bottle shop and was required to unload pallets and place stock on the shelves and fridges as quickly as possible. The work was very heavy and involved her lifting, carrying, bending and stooping to get bottles into position. She noted the onset of low-back pain without specific incident, which gradually increased throughout the shift. She reported her injury. She tried to keep working for approximately three weeks but as time went on, she increasingly struggled to cope with back pain.
75 On 28 April 2006, the plaintiff consulted her general practitioner, Dr Mitchell, and was off work for an extended period of time. She attempted to return to work on a number of occasions. The medical record of the plaintiff’s general practitioner confirmed her desire to return to work, and when she returned to work, she was seeking to increase her hours. When she returned to work, she was moved out of the bottle shop and into the bakery section, which was lighter work. She struggled to cope with the workload and reduced her hours of work.
76 On 19 June 2008, the plaintiff was instructed to work on the cash registers. She told her supervisor she could not cope with the duties. She was instructed to proceed and suffered a flare-up of back pain whilst working on the cash register. She consulted her general practitioner on 28 June 2008.
77 Between April 2006 and May 2007, the plaintiff was seeking treatment from her general practitioners for lumbar back pain which was work related. I accept there is a history consistent with what the plaintiff said on oath, namely that she injured herself performing heavy work, specifically in April 2006, that she had some time off but returned to work with fluctuating pain on restricted hours and lighter duties until the second aggravation. This history is consistent with what she told Associate Professor Buzzard. In his first report in August 2011, he said her current injury was an exacerbation of the pre-existing injury to her lower back in 2006. Her employment on 18 June 2008 was a significant contributing factor to the exacerbation of the previous injury. Employment continues to be a significant contributing factor in the exacerbation of the previous low-back injury.
78 Mr Dooley diagnosed low-back pathology suggestive of a disc prolapse with left-sided and, to a lesser degree, right-sided sciatica which was due to her employment with the defendant. He said her employment was a significant contributing factor to her problems and the most significant of the two specific incidents appears to have been the second. I accept that he was treating the plaintiff’s condition as a progression.
79 In August 2013, Associate Professor Buzzard said the plaintiff’s back condition has arisen out of the course of her employment as a bottle shop assistant/cashier in April 2006. Her further employment as a check-out operator on 18 June 2008 has been a significant contributing factor to her back injury. He said it appeared more likely than not that the first injury is twice as significant as the second injury. Further, her employment has been a significant contributing factor to her back condition.
80 In June 2013, Mr Wilde, orthopaedic surgeon, said the plaintiff sustained a physical injury whilst lifting in 2006. Despite treatment, the lumbar pain never completely resolved. He said the physical injury has healed; however, the pain persists, and he thought she had developed a Pain Syndrome mixed with a non-organic physical aetiology.
81 In December 2011, Mr Hunt diagnosed symptomatic lumbar spondylosis with chronic low-back and left leg radicular pain symptoms secondary to a disc prolapse. He thought the plaintiff’s injuries represented an aggravation of pre-existing degenerative change in the lumbar spine, and work had been a significant contributing factor to the development of the ongoing back and leg pain which has resulted in long-term impairment of her lower back function.
82 In July 2013, Dr Middleton said the plaintiff suffered derangement of the L4-5 and L5-S1 discs, initially without protrusion, in the course of her employment with the defendant in the liquor department on 8 April 2006. As a result, she suffered ongoing lumbar instability, resulting in continuing nerve root irritation. There was an incomplete recovery, with the result that the plaintiff reduced her work hours and required lighter duties. When placed on the main register at the check-out, the constant, repetitive and awkward manual handling, including heavy weights, substantially aggravated the underling condition, resulting in disc protrusions to the left at L4-5, associated with an annular fissure known to be painful, and a disc protrusion to the right L5-S1, resulting in predominantly left-sided radicular symptoms.
83 In September 2013, Mr Brownbill noted the plaintiff was injured when unloading pallets of stock on 8 April 2006, when she noted the onset of low-back pain without any specific incident, which then increased. The pain improved gradually, but never went away completely and, as a result, she reduced her work hours to eighteen hours a week. When working on the register on 18 June 2008, she was required to lift heavy items from the counter, twist with them and place them into bags. She noted a gradual increase in low-back pain, without any specific incident, which became progressively more severe, and consulted her local doctor. She has not worked since.
84 The medical evidence does not support treating the plaintiff’s injuries as separate. It is clear from the medical evidence the 2006 injury did not resolve. Further, there was no contrary proposition put to the plaintiff in cross-examination. There was no evidentiary material that would justify putting such a proposition to the plaintiff. Accordingly, I accept that the plaintiff clearly suffered a course of employment injury.
Permanency
85 Counsel for the defendant submitted there was an issue as to permanency in respect to the plaintiff’s injury. Namely, that I must be satisfied that her condition as she presents at the date of hearing is permanent; that is, it is likely to persist for the foreseeable future. Counsel relied upon the medical evidence of Mr Wilde.
86 In September 2010, Mr Wilde said the plaintiff had an annular tear which could take up to five years to heal. At that time, he said the plaintiff had an incapacity which was likely to continue for the foreseeable future. In June 2013, he said her physical injury had healed substantially. Counsel for the defendant submitted that I should give Mr Wilde’s evidence particular weight in view of him being the treating orthopaedic surgeon who examined the plaintiff on two occasions between 2009 and 2013. As to that submission, I consider his reports with all the other medical evidence.
87 Mr Wilde was the only medical witness to adopt the view that the plaintiff’s physical injury had healed substantially. In May 2014, her general practitioner said her prognosis in regard to future improvement was guarded. The maximum hours she could work was twelve to fifteen hours. Dr Horsley and Dr Middleton said restrictions applied in respect to her work, social and domestic activities which are permanent. In April 2014, Mr Brownbill said that from a neurosurgical point of view, there was ongoing organically-based pain. He said the views expressed in his previous report were still appropriate.
88 A further submission by Counsel for the defendant was that Dr Horsley supports the opinion of Mr Wilde. Dr Horsley expressed the view that with a structured physical program, re-training and an improvement in her functional tolerances, the goal for the plaintiff to return to work would be in the vicinity of fifteen to twenty hours per week. Dr Horsley said the plaintiff’s reliability now would be poor, and will continue to be poor, unless her medication is reduced and her functional tolerances are increased. Dr Horsley then said the plaintiff had reached maximum medical stability. Her restrictions are permanent and will continue for the foreseeable future.
89 I accept that Dr Horsley, in expressing the view that the plaintiff’s goal would be a return to work in the vicinity of fifteen to twenty hours per week, was expressing an aspirational target. Dr Horsley qualified this by imposing restrictions that she said are permanent and apply to work, social, domestic and recreational activities. Dr Horsley said that without considerable re-training and skills upgrades, as well as addressing her significant level of deconditioning, she will remain off work into the longer term. I accept Dr Horsley expressed the view that she could not return to manual work, and imposed restrictions which are permanent.
90 In addition, it is relevant to note that despite requests by the plaintiff, the defendant has not offered the plaintiff a return to work program. The plaintiff wrote to the employer in November 2013 seeking assistance to return to work. The plaintiff followed her request at the conciliation conference and telephoned the employer the following week. She received no response. In the circumstances, I find that the plaintiff has discharged the onus with respect to s134AB(38)(g). She has sought a return to work program and re-training.
Disentanglement
91 Counsel for the defendant submitted in opening submissions that some of the medical evidence suggested a significant psychological component. Counsel did not address this in final submissions; however, I propose to deal with this aspect.
92 In essence, the issue is whether, and to what extent, I can be satisfied that the plaintiff’s current pain and disability in the low back has an organic basis, or whether the symptoms are due to the non-organic overlay. The real issue is the nature and extent of the organic component.
93 In Meadows v Lichmore Pty Ltd,[17] Maxwell P said:
“… serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[17][2013] VSCA 201
94 Accordingly, it is necessary for me to determine whether, based on the medical evidence, there is a substantial organic basis for the pain and suffering consequences relied on by the plaintiff.
95 All doctors accepted the plaintiff suffered an aggravation of a degenerative disc disease, annular tear at L4-5, disc prolapse and nerve root compromise.
96 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Mr Brownbill, Mr Wilde, Mr Dooley and Associate Professor Buzzard. The expertise of these doctors was in relation to the organic injury. Dr Horsley and Dr Middleton, occupational physicians, were aware of the plaintiff’s depression, but only addressed the physical injury. The only psychiatrist to comment was Mr Dush Shan, who examined the plaintiff in July 2011. He said the plaintiff’s condition was an Adjustment Disorder, which was mild and controlled, and did not contribute to an incapacity for work. There is no current psychiatric evidence.
97 A number of the medical opinions addressed this issue of disentanglement. Dr Horsley said the events as described and the clinical presentation are consistent. She said the plaintiff sustained an annular tear at L4-5. Due to the poor blood supply to discs, it is unlikely to heal, and remains an ongoing pain generator.
98 Dr Middleton identified that the plaintiff suffered derangement of the L4-5 and L5-S1 discs in April 2006, and that the work she performed as a check-out person resulted in disc protrusions to the left at L4-5 associated with an annular fissure known to be painful, and a disc protrusion to the right at L5-S1, resulting in predominantly left-sided radicular symptoms. He considered, from a physical injury alone, that the plaintiff had no capacity to perform her pre-injury duties, and that she had no capacity to perform suitable employment.
99 Mr Brownbill said, from a physical injury perspective, that the plaintiff was precluded from pre-injury duties, and that she would have difficulty performing any employment for which she is suited in an ongoing or reliable fashion.
100 Mr Dooley said there was no evidence of functional overlay or exaggeration of the symptoms or disability.
101 Associate Professor Buzzard agreed with Mr Dooley and only addressed the organic injury.
102 Mr Wilde, orthopaedic surgeon, said there was a Pain Syndrome of mixed non-organic physical aetiology, and currently the non-organic component was the dominant feature. Yet he went on to say the plaintiff’s capacity for part-time light or sedentary duties was associated with restrictions that he identified as a consequence of the physical injury, and the restrictions would continue for the foreseeable future. Further, I place less weight on Mr Wilde’s evidence, as his expertise is that of an orthopaedic surgeon.
103 On the basis of the up-to-date medical reports, I accept that there is a substantial organic basis for the pain and suffering consequences relied on by the plaintiff.
104 It is now necessary for me to consider the loss of earning capacity.
Loss of earning capacity
105 If the plaintiff satisfies the test laid down by the Act, then she is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[18]
[18]Advanced Wire & Cable Pty Ltd v Abdulle (supra) at paragraph [63]
106 As I have already stated, it is necessary for me to consider the plaintiff as at the present time. Accordingly, I am more influenced by the up-to-date reports of Dr Mitchell, Mr Wilde, Dr Horsley, Dr Middleton, Mr Brownbill and Associate Professor Buzzard.
107 All of the above-named medical experts accepted that the plaintiff’s pre-injury employment was manual and heavy. All accepted that the plaintiff could not return to pre-injury employment. The majority of the plaintiff’s working life had been in supermarkets performing manual work. In the words of Dr Horsley:
“Mrs Watts is significantly disadvantaged. She only has Year 6 education. She started Year 7, but did not complete the year. She states that she has no literacy issues. She has very basic computer skills. Her transferrable skills are primarily therefore in the manual arena. The injury is significant in such a worker.”
108 All doctors agreed that the plaintiff required re-training. Most medical witnesses thought she had a capacity for suitable employment, but differed on the number of hours she could work in suitable employment.
109 All imposed physical restrictions. Mr Wilde was the most optimistic of the medical opinions. He said the plaintiff could perform light or sedentary duties, commencing on a part-time basis of twenty hours per week. Restrictions would apply, which would be avoidance of lifting, bending and twisting. Such restrictions will continue for the foreseeable future.
110 Mr Brownbill imposed restrictions of avoiding heavy lifting, forced spinal movement, repeated bending or prolonged standing or sitting. Mr Brownbill said any return to work should be gradual, under medical supervision, and that the hours should be dictated by her response.
111 Dr Mitchell said the maximum hours she would be able to work would be between twelve and fifteen per week. Dr Mitchell saw the plaintiff on a regular basis, being her general practitioner.
112 The occupational physicians, Dr Horsley and Dr Middleton, were cautious as to suitable employment. Dr Horsley imposed restrictions and was aware that the plaintiff’s functional tolerance was poor. She thought the plaintiff’s was likely to remain off work into the longer term. She said the plaintiff needed considerable re-training and upgrading of skills to enable her to move into a less manual role. Dr Horsley said the goal is for her to return to work in the vicinity of fifteen to twenty hours per week. Dr Horsley said the plaintiff’s reliability would be poor and will continue to be poor, unless her medication is reduced and her functional tolerance improved. Dr Horsley was not asked to consider the Carfi report.
113 Dr Middleton said the plaintiff did not have the capacity for suitable employment. He said her physical capacity is unreliable. Her maximum attendance in non-manual work is twelve hours in a week. She would require upskilling and vocational re-education. Further, for the work to be safe, it needs to be self-paced, enabling the plaintiff to change positions and take “rest breaks” as required. An employer would be required to account for the fact that the plaintiff’s “safe physical capacity” means the plaintiff would not be reliable.
114 The defendant relied upon a Vocational Assessment Report by Carfi, vocational assessor, conducted by Ms Adam, a psychologist. Ms Adam was provided with medical reports from Mr K Elsner, Mr M Dooley, Associate Professor A Buzzard and Mr D Shan. She said she was unable to contact the plaintiff’s general practitioner, Dr Mitchell. She identified the following positions:
(i) Front desk attendant
(ii) Receptionist/medical receptionist
(iii) Information officer
(iv) Vocational Education and training lecturer.
115 Dr Middleton is an occupational physician and, by his expertise, is qualified to comment on whether or not an individual has a capacity to do particular work.[19] In respect to the report prepared by Ms Adam, Dr Middleton said that, having assessed the plaintiff on two occasions and considered the extensive documentation, it was his opinion that the assessment dated 23 September 2003 by Ms Adam is inadequate. He said Ms Adam stated she relied upon the reports of Mr Dooley and Associate Professor Buzzard, but in Mr Middleton’s opinion, she ignored the advice provided by these reports and developed a series of vague physical restrictions which have been applied to the identified suitable employment options, in the absence of an adequate assessment of the physical requirement of the inherent work to be undertaken. Ms Adam did not fully accept the skills base required for the four positions, noting that for years WorkSafe had the opportunity to instigate re-training or vocational re-education. Further, the report failed to address the fact that the plaintiff was, in her last job, working only eighteen hours per week until she was unable to continue.
[19] Giankos vSPC Ardmona Operations Limited (No 2) [2009] VCC 1461 at paragraph [96]
116 Dr Middleton analysed each of the positions suggested by Ms Adam and concluded that, based on the medical opinions, an analysis of those positions and the physical demands of the core duties, the plaintiff was unable to perform the inherent duties of those positions.
117 In respect to the position of information officer, Dr Middleton said the plaintiff would not be suitable, because her physical restrictions are substantial and her skills base limited.
118 In respect to a receptionist/medical receptionist, Dr Middleton said the plaintiff has neither the safe physical capacity nor the skills base to obtain employment in an open employment market.
119 In respect to a vocational education and training lecturer, the plaintiff would not be suitable, as she does not have the adequate safe physical capacity or skills in training and assessment to apply for such a position. Furthermore, there are actually no job vacancies.
120 In respect to front desk attendant, Dr Middleton said the assessment made by Ms Adam was inadequate in regards to addressing the physical requirements of the work and the need for, in particular, adequate commercial computer skills.
121 Given that the plaintiff has not worked for a number of years, and when she last worked it was for eighteen hours a week, it is unrealistic in a competitive employment area to expect the plaintiff to be successful, particularly given her level of basic skills and the skills required for each of the options identified.
122 Dr Horsley, occupational physician, said that, given the plaintiff’s injury, it causes significant disability in a primarily manual worker, given her Year 6 education and low-grade computer skills with no specific transferrable skills. In addition, Dr Horsley imposed work restrictions and noted her functional tolerances. She said the plaintiff required significant upgrading of skills to enable her to return to the workforce in a role that is not manual and complies with the restrictions imposed. She said, given the plaintiff’s level of deconditioning and poor functional tolerances, she was likely to remain off work into the longer term. However, with a structured physical program and an improvement in the functional tolerances with some re-training and upgrading of skills, the goal for return to work would be in the vicinity of fifteen to twenty hours per week. Dr Horsley said the plaintiff’s reliability would be poor and will continue to be poor unless medication is reduced and her functional tolerances improved. I accept the estimate of fifteen to twenty hours per week is “a goal for return to work” and is an aspirational target.
123 Mr Dooley said the plaintiff “may possibly be able to return to suitable lighter work, particularly on the express lane or in check-out work not involving lifting of weights over 2 to 5 kilograms”.
124 Associate Professor Buzzard said the plaintiff could not work in a job involving heavy lifting, bending and stooping. He believed it prudent for her to be re-trained for suitable employment. He considered the job options identified and said they were suitable. Associate Professor Buzzard is not an occupational physician, and I place little weight on his evidence in this regard.
125 The plaintiff’s evidence was that she attained a Year 6 level at school. Her work has been physical. The majority of the medical witnesses imposed restrictions of avoidance of lifting, bending, twisting and carrying. Given the vocational report of Ms Adam, I accept that she has not addressed the physical capacity of each position she has identified.
126 Taking the evidence of Dr Horsley and Dr Middleton, the occupational physicians, I am satisfied that as a result of her back injury, the plaintiff cannot perform the inherent duties of her previous occupation, nor can she perform the inherent duties of other suitable employment. I accept that this represents a significant loss to the plaintiff.
127 The evidence was that the plaintiff had been in employment for many years. The plaintiff can no longer work in pre-injury employment. She has few transferrable skills. Given her very basic level of education, this represents a significant loss to the plaintiff, both with respect to her enjoyment of life and self-esteem.
128 I am satisfied that the plaintiff’s impairment is permanent, given the medical evidence, and that it has continued since 2008.
129 I am satisfied that it is fair to describe the consequence of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
130 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
131 Given the medical evidence and that the plaintiff’s injury has continued since 2008, I find that the plaintiff is effectively excluded from any suitable employment as a result of the back injury and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates, as I do not accept she has any residual capacity when the medical restrictions placed on her by the medical witnesses are looked at, together with the vocational reports of Dr Horsley and Mr Middleton, in the context of the real commercial world.
132 I accept that given the plaintiff’s level of education, having completed Year 6, it is unrealistic to expect that the plaintiff could complete the re-training necessary for her to obtain administrative-type work. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
133 In view of the matters I have described, the plaintiff has discharged the onus with respect to her impairment of the low back regarding her loss of earning capacity. I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
134 In accordance with Advanced Wire & Cable Pty Ltd v Abdulle,[20] it follows I grant leave to bring proceedings for pain and suffering damages.
[20]Supra
135 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for economic loss consequences as a result of her employment with the defendant.
136 Accordingly, I will make an order that the plaintiff be granted leave to issue proceedings at common law for pain and suffering damages and economic loss.
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