Wright v Latrobe Regional Hospital
[2018] VCC 2327
•19 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-06099
| PHYLLIS WRIGHT | Plaintiff |
| v | |
| LATROBE REGIONAL HOSPITAL | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2018 | |
DATE OF JUDGMENT: | 19 October 2018 | |
CASE MAY BE CITED AS: | Wright v Latrobe Regional Hospital | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2327 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s325 and s335 – injury to low back in specific incident – principal dispute concerning burden of proof in relation to economic loss – plaintiff part-time worker at time of injury – whether earlier full-time work within three years prior to the accident is appropriate measure of pre-injury earning capacity – whether plaintiff ever intended to return to full-time work and relevance of this – whether onus of proof generally in relation to loss of earning capacity satisfied – no challenge concerning pain and suffering – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Tim Connor Law |
| For the Defendant | Mr B McKenzie | Hall & Wilcox |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. In bringing her application, the plaintiff seeks leave to commence proceedings for damages in relation to both pain and suffering and economic loss. She relies solely upon paragraph (a) of the definition of serious injury. The injury in question is one to the lower spine and shall hereinafter be referred to as “the injury”. She alleges that she suffered injury on 16 February 2015, when she slipped and fell upon a wet floor whilst in the course of her employment with the defendant. This shall hereinafter be referred to as “the accident”. At the relevant time the plaintiff was a part-time employee.
2 Whilst leave in relation to pain and suffering was not conceded, counsel for the defendant said at the outset that the foremost issue was that of economic loss – see Transcript (hereinafter referred to as “T”) 8. Indeed, in closing addresses, this was repeated and counsel for the defendant stated that his client made no particular submission in relation to pain and suffering – see T52. Thus, whilst no concession was made in relation to pain and suffering, it was made quite clear that this was not an issue which the defendant was contesting with any vigour and, given the material put before me, I can appreciate why this was so. There was no contest concerning the occurrence of the accident. The plaintiff’s claim was accepted by the defendant in relation to both statutory benefits and the payment of medical and like expenses, including payment for surgery. Thus, the matter was contested virtually entirely on the question of whether the plaintiff had established an entitlement to leave to bring proceedings for economic loss.
3 Mr J Valiotis of counsel appeared on behalf of the plaintiff. Mr B McKenzie of counsel appeared on behalf of the defendant. The plaintiff gave evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(a) The plaintiff’s background, training and employment
4 The plaintiff is aged 55 years, she having been born in 1963. She is a married woman with seven children and a considerable number of grandchildren. She was orphaned at an early age. She originally left school at the age of 16, but returned to further her secondary education when she was aged 34. Prior to that she had been engaged in some farm work and had been raising her family. Her husband is a farmer. In any event, in 1997 she returned to high school and completed Year 12. The following year she commenced a course in order to become a Bachelor of Applied Science in Nursing, a course which she completed in 2001. She then commenced employment with the defendant, whilst also undertaking a three year course resulting in her obtaining a Graduate Diploma of Nursing in 2004. This was a qualification specifically directed to perioperative nursing. Between 2004 and 2010, the plaintiff was employed as a Registered Nurse in Perioperative Nursing at the Bairnsdale Regional Health Hospital. This employment ceased in 2010. She and her husband moved to Queensland for a period. The plaintiff was employed as a registered nurse with the Ayr Base Hospital and also worked at Mount Isa Base Hospital. I gather that she and her husband were engaging in a lengthy tour with some employment from time to time. In 2012 she worked for a few months for Woolworths and suffered a back injury in an incident in December 2012. This would not appear to have been of any great severity or the cause of any ongoing incapacity or impact. She had no time off work and received conservative treatment.
5 In July 2013, the plaintiff commenced employment with the Victorian Eye and Ear Hospital (“the Eye and Ear Hospital”) as a registered nurse. This resulted in her travelling to Africa as part of the Eyes for Africa ophthalmic surgical program and involved the restoring of vision to African children who had been in war-torn countries. This work was done for a couple of months.
6 In March 2014 the plaintiff commenced employment with the defendant on the basis of being a casual Registered Nurse, again in perioperative nursing. She worked approximately 24 hours per week. It would seem that, after the accident, the defendant changed working from eight-hour shifts to ten-hour shifts, which would enable the plaintiff to work five shifts per fortnight, this being something that she would have done. She referred to this as meaning that she might not need to continue working casually at the Eye and Ear Hospital – see T43 and T44. It should be said that, prior to the accident, she also did occasional shift work at the Eye and Ear Hospital. This was sporadic, but seems to have averaged approximately one eight-hour shift per month. In addition, she assisted her husband in relation to farm work. It was while she was working with the defendant as a perioperative nurse doing eight hour shifts that the accident occurred on 16 February 2015.
(b) The plaintiff as a witness
7 The plaintiff impressed me as not only being an admirable person, but as being a completely reliable witness. I accept her evidence without hesitation. I note that Dr Joseph Slesenger, specialist occupational physician, who examined the plaintiff at the request of the defendant, described her as giving a clear and consistent account of her injuries. Associate Professor Peter Doherty, consultant psychiatrist, also examining on behalf of the defendant, described the plaintiff as being attentive, pleasant and cooperative. He also described her as being alert and aware. In addition, he referred to her as being “very straightforward”. Dr Gerard Powell, consultant orthopaedic surgeon, also examined the plaintiff on behalf of the defendant. He described her as exhibiting no abnormal illness behaviours and as being a genuine complainant who did not exaggerate her symptoms or signs. In short, she is a person who obviously impressed some of the defendant’s medical examiners and certainly impressed me.
(c) The state of the plaintiff’s health prior to the accident
8 As stated, when working on a temporary basis with Woolworths in December 2012, the plaintiff suffered a back injury in a lifting incident. I accept that she had no time off work and had only conservative treatment. It is not argued by the defendant that this is of any particular relevance. She has a history of hypertension and swelling of the ankles. She has also had a left Achilles’ tendon repair. It was not argued that any of these matters, or indeed any prior medical history, is of any great relevance.
(d) The injury, its diagnosis and prognosis
9 The injury was sustained on 16 February 2015, when the plaintiff slipped and fell whilst in the course of her employment with the defendant. It is alleged by the plaintiff that this occurred on a wet floor. Her initial pain was over the left lower region of the back, along with pain and numbness in the left leg. The plaintiff initially saw a physiotherapist and, from March 2015, attended at Macleod Street Medical Centre in Bairnsdale. Ultimately she was referred to Mr Craig Timms, neurosurgeon, who is based at the Epworth Hospital. She was so referred by Dr Kui Poh Ng of the Macleod Street Medical Centre and that doctor has essentially remained her treating general practitioner thereafter. At the time of consulting Mr Timms, the plaintiff had with her an MRI scan that revealed two large disc protrusions, both on the left, at L4-5 and L5-S1. Surgery was discussed and it was decided that the plaintiff would have a lumbar microdiscectomy at L4-5 and L5-S1 on the left. Apparently approval was obtained from the defendant or its WorkCover agent in relation to such surgery.
10 Accordingly, on 28 September 2015 at the Epworth Hospital, a left lumbar L4‑5 and L5-S1 microdiscectomy was performed by Mr Timms. Large disc protrusions were removed. Mr Timms last saw the plaintiff on 5 November 2015. Whilst she was healing well, he explained to her that she needed to remain on pain medications and to perform prolonged courses of physiotherapy, hydrotherapy and massage. He considered her to be incapacitated whilst she recovered. He thought that her condition would not stabilise until approximately September 2016, but that she was likely to continue to have chronic back pain and sciatica. These details are set out in the report of 3 May 2016 from Mr Timms to the plaintiff’s solicitors. The plaintiff has not seen Mr Timms since 5 November 2015.
11 The plaintiff has continued under the care of Dr Kui Poh Ng. When reporting on 1 April 2016, he described the plaintiff as having made slow improvement since her operation. She was limited in her recovery. He felt that she would have some capacity for modified work, stating that such would involve predominantly clerical duties at a work site ideally less than 30 minutes away from her home. It should be said that the plaintiff lives on a farm near the small town of Bengworden, which is approximately 25 to 30 kilometres from Bairnsdale. The plaintiff agreed that Bairnsdale was within 25 to 30 minutes’ driving time away from where she lives – see T20.
12 On 14 June 2016, Dr Ng certified the plaintiff as having no capacity for any duties at that time. He stated that the 30 minute drive each way to Bairnsdale for a two hour work day was not practical or manageable.
13 Apparently the plaintiff returned to work on modified duties from August 2017, but had a flare-up of lower back pain after three hours. Dr Ng certified that the plaintiff no longer had the capacity to continue her return to work. Subsequently, he expressed the view that her left foot symptoms of Achilles’ tendinosis were related to her back pain.
14 On 28 June 2018, Dr Ng reported to the plaintiff’s solicitors. He noted that, after the earlier difficulties with the return to work program, the plaintiff was referred to an exercise physiologist. She continued to perform her return-to-work duties, until her employment was terminated on 3 July 2017. Dr Ng put inverted commas around the word “terminated”. The plaintiff had apparently informed him that the return-to-work job was “fabricated”.
15 Dr Ng reported for the final time on 15 August 2018. He referred to the plaintiff as having successfully taken up a modified graduated return-to-work program, after some initial problems. His diagnosis was of chronic low back pain and sciatica due to a disc prolapse suffered in the accident. He expressed the view that the plaintiff did not have the capacity for pre-injury employment, but did have the capacity for light/clerical duties. He stated that she would benefit from up-skilling and/or retraining. He thought that her incapacity in relation to her pre-injury employment was likely to continue for the foreseeable future and indefinitely. He was of the view that the plaintiff could perform suitable employment, if graduated, but for six hours per day and three days (non-consecutive) per week. This could vary, depending on other factors which might impact upon her work capacity. In his opinion, her diminished capacity for light or clerical duties was likely to continue indefinitely.
16 The plaintiff has also been examined for medico-legal purposes. Professor Richard Bittar, consultant neurosurgeon, saw the plaintiff at the request of her solicitors on 22 January 2018. He took an appropriate history, although noting that the plaintiff was able to return to work on light duties post-operatively, referring to her as reaching full-time hours before her position was terminated in mid-2017. Presumably when referring to “full-time hours”, Professor Bittar in fact meant “pre-injury hours”. The plaintiff has sworn that ultimately she returned to pre‑injury hours of 24 per week, but was undertaking alternative duties. This would appear to be accurate. It is not suggested that, at any time, the plaintiff worked “full-time hours” for the defendant.
17 In any event, Professor Bittar referred to and summarised the effect of the injury upon the plaintiff’s activities and lifestyle. He concluded that, overall, her quality of life had been severely impacted. In relation to her diagnosis, Professor Bittar stated that the plaintiff presents with ongoing back pain and leg pain secondary to the L4-5 and L5-S1 intervertebral disc prolapses, which were treated surgically. He considered her likely to experience ongoing pain and disability for the foreseeable future. Professor Bittar was of the view that the plaintiff was permanently incapacitated for her pre‑injury duties as a registered nurse, this being a direct result of the condition of her lumbar spine. He thought that in theory she did have the capacity to undertake very sedentary work part-time, but suggested an opinion be obtained from an occupational physician in relation to the likelihood of such employment being able to be procured and maintained.
18 The defendant has also had the plaintiff examined for medico-legal purposes. Dr Graeme Doig, who specialised in general orthopaedics and trauma, has provided a number of reports. The earliest of these is dated 12 April 2016. His diagnosis essentially coincided with that of others and there is little dispute concerning it. He considered that the plaintiff was not fit for the her pre‑injury duties and hours, but that she did have a current work capacity and could return to alternative duties. He considered that she should be confined to lifting less than 10 kilograms, also referring to her restrictions in relation to pushing, pulling, bending, twisting and squatting. He thought that she would need breaks from prolonged sitting, standing and driving.
19 Dr Doig provided an additional report on 15 June 2016, but there is no suggestion that he saw the plaintiff again. He again thought that, in relation to her back condition, the plaintiff was fit to return to restricted duties. He was also aware of her left Achilles’ tendinosis, but seemed to be distinguishing between that and her lower back condition.
20 Dr Doig saw the plaintiff again on 15 August 2016. At that stage, she had returned to work two hours per week doing filing and answering phone calls. The left Achilles’ tendon problem had improved with treatment. She had ongoing back discomfort, with some improvement in the radiculopathy symptoms in the left leg. She was continuing on medication. Essentially Dr Doig thought that the plaintiff was not fit for her pre‑injury duties because of her back condition. However, he believed her to be fit for alternative duties, with much the same restrictions as he had previously outlined. He thought that there should be another review in approximately six months. He noted that, as she was travelling two to three times per week for treatment, she had the capacity to travel to the return-to-work location.
21 Dr Doig reported again on 14 September 2016. He had perused a return-to-work plan and thought it appropriate, with the restrictions that he had outlined being involved. In a subsequent letter of 5 October 2016, he expressed the view that the Achilles’ tendon problem was not related to the lower back condition.
22 Dr Joseph Slesenger, specialist occupational physician, saw the plaintiff on 13 May 2017, reporting to the defendant on the 26th of that month. He took a history of the accident and treatment, noting that the surgery had resulted in improvement of her left leg symptoms, but that she had been left with 80 per cent of her lumbar spinal symptoms. He noted that the plaintiff could sit or stand constantly for 30 minutes and drive for up to 30 minutes. He further noted that she had returned to work on a graduated basis in August 2016 and had returned to her pre‑injury hours by March 2017. She was currently working three days per week, 10 hours a day, performing administrative duties during most of those hours. Twice a month she was managing a Clozapine clinic for six hours. She was able to sit or stand and was driving between home and work each day, a trip that took approximately 20 minutes. He recorded that there had been psychological impairment, although this was outside his area of expertise.
23 Dr Slesenger expressed the opinion that the plaintiff could return to work for pre‑injury hours, but had some reservations in relation to her returning to pre‑injury duties. He thought such duties would have to be modified. He had been forwarded a Vocational Assessment Report and thought that she could perform the various roles described, although noting restrictions in relation to such duties as ward clerk, clinical nurse educator and the like. He believed that she could perform the duties of a customer service officer, a clinical care manager and a medical receptionist. The restrictions which he recommended were no pushing, pulling, carrying or lifting over 5 kilograms; no repetitive bending or twisting; sitting or standing as required; a sit/stand desk to be provided; and working for her pre‑injury hours. His view was that, based on her compensable physical impairment alone, she had the capacity for work within the outlined restrictions. He put a limit of 30 minutes on sitting and driving, with lifting, pulling and pushing restricted to weights of up to 5 kilograms.
24 On 26 June 2017, Dr Slesenger forwarded a supplementary report. There is no suggestion that he had seen the plaintiff again. He expressed the opinion that the plaintiff suffers an aggravation of pre‑existing degenerative disease of the lumbar spine and that the aggravation had not ceased. His attention had been directed to the incident at Woolworths in 2012, but he stated he was unable to directly attribute the current impairment to that. He expressed the opinion that the accident in question resulted in a significant injury that required the surgery that was performed.
25 Dr Slesenger reported to the defendant again on 25 July 2018, having seen the plaintiff on 4 July. The plaintiff told Dr Slesenger that she had remained in work until July 2017 and at that time had been working 24 hours per week, performing administrative tasks in a sedentary position. It would seem that she ceased work when alternative duties were withdrawn. An attempt to undergo retraining had not been successful. He also noted that the plaintiff was seeing a psychologist on an alternate monthly basis.
26 Dr Slesenger continued to diagnose a mechanical injury to the lumbar spine and the aggravation of degenerative disease of that spine, for which conditions she had undergone the surgery discussed. She had chronic lower back pain with radiating features. He considered the plaintiff’s ongoing impairment to be related to the accident. He remained of the view that, while she could not return to her pre‑injury duties and hours, the reason being her back impairment alone, she retained the capacity for alternative duties. He placed restrictions upon any return to work. These were that there was to be no pushing, pulling, carrying or lifting of weights over 5 kilograms. There was to be no repetitive bending or twisting. The plaintiff should be able to sit and stand as required and a sit/stand desk should be provided. She should be confined to her pre‑injury hours. He remained of the opinion that, bearing in mind the restrictions he had listed, the plaintiff could work as a medical receptionist, clinical care manager, a customer service officer or training and development professional (presumably with retraining as referred to in his earlier report). He considered that some restrictions still applied in relation to the impairment of the right shoulder. (The plaintiff had given Dr Slesenger a history of intermittent mild right shoulder pain with no restriction of movement as a result of utilising a standing desk when performing alternative duties.)
27 Associate Professor Peter Doherty, consultant psychiatrist, examined the plaintiff at the request of the defendant on 24 May 2017. He diagnosed an adjustment disorder with a depressed mood. He did not believe that there existed a Major Depressive Disorder. He considered her capable of undertaking modified or alternative duties at reduced hours. Associate Professor Doherty had been provided with the Vocational Assessment Report of 20 April 2017. He thought that, of the positions listed, clinical nurse educator, clinical care manager and training and development professional appeared the most appropriate. The alternative duties which the plaintiff was undertaking for reduced hours as at the time of his examination seemed appropriate. It should be said that the plaintiff has seen a psychologist on an alternate monthly basis, but it is not argued by the defendant that the physical injury has resulted in psychological or psychiatric consequences of any magnitude.
28 Dr Gerard Powell, consultant orthopaedic surgeon, examined the plaintiff at the request of the solicitors for the defendant on 6 July 2018. The plaintiff described daily pain on a scale of 6/10 in severity, but with some flare-ups. She described the considerable number of restrictions upon her activities. She was not having current problems with her shoulder. Essentially, Dr Powell diagnosed ongoing lower back pain in the setting of previous two-level decompressive surgery to the lumbar spine.
29 In reference to the back injury which the plaintiff suffered in December 2012 when working at Woolworths, Dr Powell expressed the view that the material before him confirmed that she had been able safely to resume her former duties comparatively quickly and that there are no subsequent medical records indicating that lower back pain was an issue during her period at work as a nurse prior to the accident. He did not consider her to be suffering from a pre‑existing condition. He considered her not to have the physical capacity to perform the requirements of her pre‑injury duties.
30 In relation to the type of jobs suggested as being appropriate for the plaintiff, Dr Powell thought that she did have a capacity to work in relation to the physical requirements of such jobs, but that the principal impediment was her geographic seclusion. The plaintiff has not regained the capacity to drive any distance. He thought that she would require a gradual reintroduction to the workforce with restricted hours and duties and under the guidance of an occupational physician. She should avoid bending or lifting more than 5 kilograms and have the capacity to alter her posture in the course of her work. Prolonged sitting or standing should be avoided. He considered that she had no abnormality of the right shoulder.
31 In relation to prognosis, Dr Powell thought that the plaintiff would suffer ongoing symptoms of lower back pain. He considered that treatment for her obesity might assist, as well as suggesting continuation with her home exercise program, continued use of her TENS machine and heat packs and also continuing with her current drug regime of Panadol Osteo three times daily, supplemented, as required, with the use of Panadeine Forte.
32 There is no great dispute concerning the diagnosis of the plaintiff’s condition. As stated by Mr Timms, her treating neurosurgeon, she suffered a left lumbar disc prolapse at L4-5 and L5-S1, an MRI scan revealing large disc protrusions at those levels. It was for these that she underwent surgery and following which she has suffered chronic back pain. To the extent that the plaintiff’s injury represents the aggravation of her pre-existing condition (not a view supported by any observation of the treating surgeon), I accept that the plaintiff was free from symptoms and restrictions at the time of the accident.
33 The incident of back pain which occurred when the plaintiff was working at Woolworths in 2012 was transient and did not require her to be absent from her place of employment. I note the opinion of Dr Powell, orthopaedic surgeon examining on behalf of the defendant, that there is no medical evidence to support a diagnosis of any pre-existing structural injury to her lumbar spine and he specifically did not formulate an opinion that the plaintiff had a pre-existing condition. It may be that there were some pre‑injury degenerative changes to the lumbar spine. However, I accept that, but for the brief and comparatively mild back pain which the plaintiff briefly suffered in 2012 and from which she made a complete recovery, the plaintiff had no prior history of back problems. The overwhelming weight of medical evidence attributes any symptoms, problems or restrictions to the accident. In any event, I am of the opinion that the plaintiff’s incapacity, and specifically any incapacity for employment, is attributable solely to the accident.
34 Pursuant to s325(2)(h), the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. Accordingly, any such consequences are to be disregarded in the present case, although no great issue concerning this was raised by the defendant.
35 The plaintiff has seen a psychologist, and has had no psychiatric treatment. The only psychiatric report before me is that of Associate Professor Doherty, examining on behalf of the defendant. Whilst he did diagnose an adjustment disorder with a depressed mood, he also stated that there was no major depressive disorder present. Further, he reported that the significant barrier in relation to the plaintiff’s return to suitable employment is that of back and leg pain.
36 The plaintiff gave some evidence in relation to feeling sad, anxious and fearful and there are also references to that in her affidavit of 8 September 2017. However, I am not of the view that psychological or psychiatric consequences have any great role to play in this case. I do not see such matters as having any significant effect upon the plaintiff’s employability. In accordance with sub-s(2)(h), any such consequences that do exist shall not be taken into account, but I am of the opinion that they do not have a role of any substance to play.
37 I am also satisfied that the consequences of the plaintiff’s injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Again, the contrary was not argued. Indeed, as stated, there was effectively no opposition to the proposition that the plaintiff is entitled to a certificate in respect of pain and suffering.
38 Dr Ng has stated that the plaintiff’s incapacity for pre-injury employment is likely to continue indefinitely and for the foreseeable future. Professor Bittar has opined that the plaintiff’s prognosis is that she is likely to continue to experience ongoing pain and disability into the foreseeable future and is permanently incapacitated for her full pre-injury duties. That the consequences of the injury are permanent is not a proposition that was challenged by the defendant and I accept it. It is also to be remembered that the defendant did not challenge the plaintiff’s entitlement to a certificate in relation to pain and suffering damages, a requirement of which is permanence of impairment or loss of body function. I am satisfied that the consequences of the plaintiff’s injury are permanent in that they will persist for the foreseeable future.
(e) Other developments since the injury
39 The plaintiff was initially absent from work for a little under a week. She resumed working on 23 February 2015, but was forced to stop on 4 March. She returned to work briefly from April to July 2015, at which time her back pain had become such that she was forced to cease. As stated, she underwent surgery on 28 September 2015. She was not able to return to work with the defendant. She returned to work with it in August 2016, undertaking duties such as filing and answering phone calls for 2-3 hours per week. This increased to her pre-injury hours of 24 per week. She was undertaking alternative duties such as checking stock, filing, ordering brochures and pamphlets, shredding and the like. She also performed some duties at the Clozapine Clinic twice a month, this work involving the checking of blood sugars, weight and the like. The plaintiff gave evidence that she was not coping with the work in the last few months – see T24. She has alleged that the work she was given to perform was meaningless. The defendant terminated her employment on 3 July 2017 and she has not worked since. At one stage, some arrangements were made for the plaintiff to do a Certificate IV in Workplace Training and Assessment, but there was a problem in relation to this course and it did not go ahead. The plaintiff has retained her Division 1 nursing qualification. She still some hopes of getting back into nursing in some form.
40 The plaintiff continues to reside on the farm at Bengworden. Prior to the injury she used to perform various tasks on that farm, but now her son provides assistance in relation to some duties.
41 In relation to the medication consumed by the plaintiff, she no longer takes Panadeine Forte, but takes up to eight Panadol Osteo on a daily basis. The plaintiff has suffered from some problems in relation to her left Achilles tendon. Whether or not this is related to the back injury or resultant surgery is a matter of some dispute. She also may have had a soft tissue injury to the right shoulder, but, in the opinion of Dr Powell, this has resolved and, when the plaintiff was seen by him on 6 July 2018, there was no evidence of any ongoing right shoulder condition.
Ruling
(i) Pain and suffering
42 The plaintiff has satisfied the requirements of the Act in relation to pain and suffering and is entitled to a certificate in that regard. As stated, whilst not conceded, her entitlement in this regard was not contested. Certainly, I am of the view that the plaintiff suffers from some of the indicia of the type set out in cases such as Haden Engineering v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and Tatiara Meat Company Ltd v Kelso [2010] VSCA 12.
43 The plaintiff endures chronic back pain, experiencing a number of episodes of such pain every day. There is sleep interference. Her intimate life with her husband has been brought to an end. Her social life is restricted. I agree with the observations contained in the report of Professor Bittar that overall her quality of life has been severely impacted. I have no hesitation in saying that she is entitled to a certificate in respect of pain and suffering.
(ii) Loss of earning capacity
44 This is a more complicated situation and is at the centre of the dispute. An argument advanced by Mr Valiotis on behalf of the plaintiff is one with which I will deal at the outset. This argument concerns the operation of s325(2)(e) and, particularly, (2)(f). Earning figures for the three years prior to the injury and three years after were put before me by the plaintiff. It is to be remembered that the accident occurred on 16 February 2015. It is also to be remembered that, for the purposes of this argument, the relevant part of s325(2)(f) reads as follows:
“…a worker's loss of earning capacity is to be measured by comparing—
…
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;”
45 The figures upon which Mr Valiotis relies in presenting this argument include that, in the financial year ending 30 June 2012, the plaintiff earned $72,071. That is a part of the three year pre-injury period upon which reliance was substantially placed. However, it is conceded that, in the 2012 financial year, the plaintiff was not a part-time worker, but was working full-time – see T67. By 2015, she was working a 24 hour week (presumably with the occasional extra day at the Eye and Ear Hospital), although a change to a 50 hour fortnight seems to have been imminent. During the intervening years of 2013 and 2014, the plaintiff had been travelling, including being in Africa for a couple of months. She in fact commenced employment with the defendant on a part-time basis in approximately March 2014 – again see T67 and 68. The move to part-time employment seems to have been entirely of her choosing and doubtless fitted in with her occasional work on the farm, for which work no income is attributed.
46 Mr Valiotis argued that the 2012 earnings should be considered to be the appropriate figure, they being within the six year period and, whilst on the basis of full-time work, represent the plaintiff’s pre-injury earning capacity.
47 In relation to this argument, I would also refer to the discussion at T80 and 81. Mr Valiotis expanded upon the argument to the point of submitting that, even if a plaintiff voluntarily retired, such plaintiff still retained a capacity for full-time employment and the choice of retirement would not affect capacity for work. Whilst the argument was not expanded upon to the following extent, I presume that such a situation might arise where some form of insidious injury was suffered prior to retirement, but the injured worker did not become aware of it until after retirement.
48 In any event, I do not accept the argument of Mr Valiotis. It is to be remembered that the figure demonstrating capacity to earn must be one that “… most fairly reflects the worker’s earning capacity had the injury not occurred” (my underlining). Those words must have some function to perform.
49 Well prior to the accident, the plaintiff had opted to engage in part-time work only. It is not suggested that anything to do with an injury or her health formed the basis for this. The plaintiff had travelled, but then returned to living approximately 25 kilometres from Bairnsdale on the family farm. She had a settled working life of part-time employment with the defendant. There is no evidence that the plaintiff had any intention of returning to work on a full-time basis. Indeed, in her affidavit of 20 July 2018, the plaintiff swore as to the requirements that would have to be in place in order for her to return to work. These include references to an inability to stand for longer than 30 minutes, the need to take breaks and the like. She has then sworn as follows:
“I would need to find an employer who would be willing to employ me on a part-time basis only as well.” (My underlining)
Whilst this could appear to be ambiguous, as I read it, it is a statement by a part-time worker that she would wish to continue as a part-time worker.
50 In my opinion, this is not a situation like that which existed in the case of The Herald and Weekly Times Limited & Anor v Jessop [2014] VSCA 292. In that case, Ms Jessop was a casual worker who, prior to injury, worked an average of 19.5 hours per week, but her hours actually worked varied from 10.5 to 37.25 hours per week. The judge at first instance, his Honour Judge Brookes, had accepted the plaintiff’s evidence that she would have worked and had a capacity to work well in excess of the 19.5 hours average that she had worked in the relevant 12 month period, if that work had been available to her. He considered that her evidence in this regard was corroborated by the weekly hours worked, which demonstrated a capacity to work up to 37 hours.
51 In arriving at its decision, the Court of Appeal referred with approval to the decision of J Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454. Essentially, in Jessop, the Court of Appeal emphasised that, prior to the injury, Ms Jessop had the capacity to work up to 37.25 hours per week and was willing to exercise that capacity. After the injury, she no longer had the capacity to work such hours. By way of contrast, the plaintiff in the present case, prior to the accident, was, and wanted to be, a part-time worker with the defendant, along with working the occasional one day shift at the Eye and Ear Hospital.
52 In particular, at paragraph [53] of its judgment in Jessop, the Court of Appeal stated as follows:
“We agree with Ms Jessop’s submission that, for the purposes of s 134AB(38)(f)(ii) of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.” (my underlining)
53 Returning briefly to the present case, the hours that the plaintiff was willing to work, both prior to and subsequent to the accident, were part-time hours. That is no criticism of her. Apparently in order to accommodate her lifestyle and other activities, prior to the accident she wished to be a part-time worker. There is no indication or evidence that, but for the accident, she would have been anything other than a part-time worker performing approximately the same number of hours of work during the upcoming years. Indeed, I would refer to the following questions and answers at T43:
“And I suggest to you that that suited the lifestyle that you were leading. You had some work at Latrobe Regional Health – 24 hours a week, on average – one shift a month or maybe two shifts a month in Melbourne at the Eye and Ear Hospital, is that right – the rest of your time at the farm?---
Correct.”
54 Thus, the evidence seems to me to point to the conclusion that the plaintiff had been a part-time worker for a couple of years prior to the accident and, but for the accident, would have continued to be a part-time worker working something in the vicinity of 25 hours per week. She also gave evidence that the defendant was in the transition of going from eight hour shifts to 10 hour shifts, in which case she would have moved to five shifts per fortnight. As a result, she did not need to work at the Eye and Ear Hospital.
55 Returning to the decision in Jessop, the Court of Appeal also stated as follows at paragraph [54]:
“The facts of each case and the manner in which the worker presents his or her case will influence which factors are relevant to the application of s 134AB(38)(f)(ii) of the Act and the relative importance of those factors. The availability of work at the worker’s pre-injury place of employment will not necessarily be relevant to an assessment of a worker’s earning capacity for the purposes of s 134AB(38)(f)(ii). It may, however, have probative value in some cases. For example, it may inform an assessment of a worker’s willingness to work where, over many years, work has been plentiful but the worker has always refused to accept offers to work beyond a certain number of hours per week.”
The emphasis upon “willingness to work” is again apparent.
56 Subsequently, the Court of Appeal referred to the statement of J Forrest J in Acir to the effect that the essence of the inquiry is to fix a figure which most fairly reflects the earning capacity of the injured worker, absent the subject injury. The Court of Appeal also emphasised the following at paragraph [60]:
“In the present case, prior to the injury, Ms Jessop had the capacity to work up to 37.25 hours per week and she was willing to exercise that capacity.” (my underlining)
57 At paragraph [64], the Court of Appeal said the following:
“In our opinion, the evidence unequivocally established that, prior to Ms Jessop’s injury, she was physically and mentally capable of working 37.25 hours per week and she was willing to work those hours if they were offered to her. Ms Jessop’s willingness to exercise her capacity to work 37.25 hours per week was demonstrated by the fact that she worked those hours on two occasions in the 12 month period prior to the injury.”
58 It is apparent that the plaintiff, Jessop, had also given evidence that she was ready, willing and able to work up to the 37.25 hours per week for which she was occasionally rostered.
59 The situation in Jessop contrasts with that in the present case. There is no suggestion by the plaintiff that she was ready, willing and able to work on a full-time basis or that she did so in the couple of years prior to the accident. The contrary is the situation. Indeed, with the possible increase to an average of 25 hours per week with the defendant, she stated that there was no need for her to work the occasional day at the Eye and Ear Hospital.
60 The bottom line is that the plaintiff had been a part-time worker, working approximately 25 hours per week prior to the accident, and she had every intention of continuing in the same role after the accident. In such circumstances, it seems to me that the words “most fairly represents” mean that, if the plaintiff was a part-time worker engaging in approximately those hours of work and with no intention of increasing such hours, “without injury” earnings should be calculated on the basis of such part-time work. There is no indication that, had extra hours of work been available, the plaintiff would have engaged in them.
61 Accordingly, the conclusion at which I have arrived is that the appropriate figure in respect of the plaintiff’s pre-injury earning capacity is not one based upon full-time work and thus is not the figure of $72,071 for the financial year ending 30 June 2012.
62 It is to be remembered that the accident occurred on 16 February 2015. The plaintiff’s earnings for the financial year ending 30 June 2015 were said to be $62,234. This represents a considerable increase on the earnings for the 2013 and 2014 financial years. Why this was so is not entirely clear to me, but in essence it was not challenged and I accept the plaintiff as a witness of truth in relation to her activities and earnings.
63 The plaintiff’s tax returns were put in evidence and were not the subject of challenge. One thing I do notice about the 2015 tax return is that the plaintiff’s income is shown as $61,448, with an additional component of income of $786 being in relation to allowances and the like. No issue was raised as to this, and an examination of the tax return reveals that the amount of $786 in question is constituted by a laundry allowance, continuing professional development allowance and a first meal allowance. These seem to me to constitute part of the plaintiff’s gross income and hence have been correctly taken into account in the calculations of Mr Valiotis. There is no suggestion that such gross figure contains any extraordinary amount otherwise not constituting part of the plaintiff’s income. Further, it is evident that the gross figure of $62,234 embraces both earnings with the defendant and with the Eye and Ear Hospital.
64 The bottom line is that I find that the gross figure, expressed at an annual rate, which the plaintiff was capable of earning from personal exertion during that part of the period within three years before the injury as most fairly reflects her earning capacity had the injury not occurred is $62,234. That is the amount of her “without injury” earnings. Sixty per cent of this figure is $37,340.
65 I turn now to the plaintiff’s “after injury” earnings. In regard to this issue, I would repeat that I found her to be a completely reliable witness of unimpeachable credit.
66 The plaintiff’s general practitioner, Dr Ng, who has been treating the plaintiff since 2008 and particularly in relation to this injury since 11 August 2015, has provided a report of 15 August 2018. In it, he expresses the opinion that the plaintiff could “perform suitable employment, if graduated, up to 6 hours per day and 3 days (non-consecutive) per week”. I note that Dr Slesenger, the occupational physician examining the plaintiff at the request of the defendant, felt that she could return to working her pre-injury hours, which he described as being “3 days a week, 10 hours a day”. On balance, I prefer the opinion of Dr Ng, who has been the treating general practitioner of the plaintiff for a long time, both before and after the accident, and seems to me to be in a preferable position for making such an assessment.
67 Turning to the Supplementary Vocational Assessment provided by Counselling Appraisal Consultants (“CAC”) of 21 November 2017, the first identified suitable employment option, in order of priority, identified by CAC is that of a medical receptionist. As stated, this is what could be described as CAC’s top priority choice. It is a job concerning which Dr Slesenger, occupational physician examining on behalf of the defendant, expresses the opinion that it represents suitable employment for the plaintiff. However, even if this is so and the plaintiff accepted such a proposition, the average weekly gross full-time wage is $900. That translates into a gross annual wage of $46,800. The average number of hours per week involved is 35.5. For an 18 hour week, this becomes a gross annual wage of $23,730. On the basis of the plaintiff’s weekly working capacity as set out above, and after making the appropriate comparison, the plaintiff would comfortably demonstrate a loss in excess of 40 per cent and discharge the burden of proof accordingly. As stated, that is on the assumption that such a position represents suitable employment.
68 The second position recommended by CAC is that of a clinical care manager. I note that the duties listed include such things as monitoring and evaluating resources devoted to health, advising government bodies, representing the organisation in negotiations and at conventions, seminars and the like and developing and implementing procedures, policies, standards and matters of that nature. Even assuming that the skills and training to perform such duties are possessed by the plaintiff, I note that frequent driving over wide geographic areas may well be required. Driving is something with which the plaintiff has problems. Further, and with all due respect to the plaintiff, the duties listed seem to me to require skills or training far different from those which the plaintiff, now aged fifty-five, has acquired. I do not regard it as suitable employment.
69 The same could be said of the position of training and development professional. The duties listed for such an occupation include such things as designing, coordinating, scheduling and conducting training and development programs. Frankly, that position seems to require skills which the plaintiff simply does not have and is of a very different nature from the nursing work which she was performing. For example, under the heading “Candidate profile” contained in the job description, there is recorded “Excellent computer literacy”. In her affidavit of 20 July 2018, the plaintiff swore that she had only basic data entry experience. A candidate for this position is described in the profile as a dynamic trainer with the ability to engage all learner types and levels. Whether this fits with the plaintiff’s experience and skills seems doubtful. That is no criticism of her, but as she said at T37:
“… it’s who I am, being a nurse, I've always been a nurse and, yes, I foresee going back to nursing in some form because that’s who I am, a nurse.”
70 CAC also recommended the position of clinical nurse educator, being one that seemed to be of interest to the plaintiff and which might fit well with her employment background, training and education. However, Dr Slesenger raises doubts as to whether this would be within the plaintiff’s capacity. He expresses reservations in that regard, raising the possibility that, in such a position she may be required to demonstrate nursing techniques with physical demands outside her capacity limits. It is to be remembered that, in the opinion of Dr Ng, the plaintiff’s capacity for suitable employment is restricted to light/clerical duties, and he refers to the benefit she might receive from up-skilling or retraining. He has also expressed the view that her capacity for light/clerical duties is likely to continue indefinitely. Bearing all of these factors in mind, it is understandable why Dr Slesenger has reservations about the plaintiff’s capacity to engage in work as a clinical nurse educator. In my opinion, this job does not represent suitable employment, even leaving to one side such matters as the plaintiff’s place of residence and the difficulties which she has in relation to driving for more than approximately 30 minutes.
71 The only other position both considered by Dr Slesenger and recommended by CAC is that of a customer service officer. Dr Slesenger considers that to be suitable employment. Even leaving to one side such matters as that, for a person applying for such a position, a tertiary degree in business or a related field is not mandatory but is highly regarded, the financial loss involved would exceed 40 per cent. The job description indicates that the average weekly wage for a customer service officer is $1,200 gross per week for an average working week of 41.8 hours. For a 24 hour working week, being the hours worked by the plaintiff prior to the injury, gross annual earnings would be $35,830. Sixty per cent of the plaintiff “without injury” earnings is $37,580. Of course, for an 18 hour working week, which represents the limit of the plaintiff’s capacity according to Dr Ng, the loss would be even greater.
72 In relation to all of these suggested positions, it must also be remembered that the plaintiff lives in a very small rural town approximately 25 kilometres from Bairnsdale and is limited in her driving capacity. Her own investigations revealed that several of the positions recommended were in fact at a considerable distance from her place of residence. For example, I would refer to T31-33 and 45.
73 The plaintiff was also cross-examined in relation to some potential employment possibilities contained in a Recovre report of 15 August 2018. Unlike the situation in relation to CAC, no one from Recovre actually interviewed the plaintiff. Recovre recommended occupations such as a practice nurse, order clerk, inquiry clerk, admissions clerk, clinical nurse educator and the like. Of the various positions suggested by Recovre, several appear to be unsuitable for the plaintiff, including some that are well outside her restricted driving range. In any event, it seems to me that the only position suggested by Recovre which, for an 18 hour week, would be productive of a loss of less than 40 per cent per annum is that of a clinical nurse educator. However, it is stated that driving is an essential aspect of the role and that such workers may have to carry equipment with them when driving. Further, it is to be remembered that Dr Slesenger, occupational physician examining on behalf of the defendant, specifically expressed reservations as to the plaintiff’s ability to work as a clinical nurse educator. I am far from persuaded that such an occupation represents suitable employment for the plaintiff.
74 I appreciate that, after the injury, the plaintiff worked for approximately one year in a position created for her by the defendant and worked at the rate of 24 hours per week. However, I also accept that, as stated, this was a specially created position. The plaintiff had difficulties coping with it. She has sworn that she had built up to 24 hours per week in this job, which had been created just for her. (Whether the plaintiff worked 30 hours per week or 24 hours per week in this position is not entirely clear. It was put to her by counsel for the defendant that she was working 24 hours per week (see T24), which is also what she has sworn to in her affidavit of 20 July 2018. However, there is reference to 30 hours per week elsewhere.) The plaintiff has sworn that she was not coping in her last few weeks and that she informed management of this. Because she was not coping, she took holidays in the sense of annual leave, but in fact went nowhere and stayed at home. In any event, the plaintiff’s employment in this specially created occupation with the defendant was terminated by it.
75 The overall conclusion to which I have come is this. Even if the required 60 per cent “before and after” comparison is done on the basis of the plaintiff being only a part-time worker at all relevant times, she has discharged the burden of proof. When the comparison required by s325(2)(e) and (f) is carried out, the end result is an annual financial loss in excess of 40 per cent. Of course, if the argument of Mr Valiotis concerning comparison on the basis of full-time employment is used, the plaintiff’s percentage financial loss is greater again. However, as stated, I am not persuaded by such argument.
76 Reliance upon s325(2)(g) of the Act was not emphasised, if mentioned, in closing addresses. In any event, I am of the view that the plaintiff’s attempts to participate in rehabilitation or retraining have been adequate. It is not suggested that her failure to participate in a course with a view to obtaining a Certificate IV in Workplace Training was in any way her fault. She seems to have cooperated fully with CAC.
77 Accordingly, I find that the plaintiff has discharged the burden of proof in relation to economic loss and that she is entitled to a certificate enabling her to seek pecuniary loss damages.
Conclusion
78 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings for pain and suffering damages and pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.
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