IN THE COUNTY COURT OF VICTORIA Revised AT LATROBE …€¦ · 19 In respect to the Medical Certificate for shoulder and spine pain for the period June to September 2015, the evidence

IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION SERIOUS INJURY LIST

Revised Not Restricted

Suitable for Publication

Case No. CI-16-00141

JOANNE LESLIE DAVID Plaintiff

V

VICTORIAN WORKCOVER AUTHORITY Defendant

JUDGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION:

HER HONOUR JUDGE KINGS

Latrobe Valley

5 July 2016

11 August 2016

David v Victorian WorkCover Authority

[2016] VCC 1125

REASONS FOR JUDGMENT

Subject: Catchwords:

ACCIDENT COMPENSATION Serious injury application — injury to the spine — consequences attributable to the spine from other conditions — whether plaintiff satisfies the test for economic loss — pain and suffering and loss of earning capacity damages Accident Compensation Act 1985, s134AB(37)(a) Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

Legislation Cited: Cases Cited:

Judgment:

APPEARANCES:

For the Plaintiff

For the Defendant

Counsel Solicitors

Mr P F O'Dwyer SC with Maurice Blackburn Pty Ltd Mr G Wicks

Mr P B Jens QC with Minter Ellison Ms M S Tait

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

HER HONOUR:

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 over the course of her employment with Pita

Nominees Pty Ltd ("the employer") at the Longwarry Service Station, but in

particular an incident that occurred in November 2009.

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 injury" is defined as meaning:

"(a) permanent serious impairment or loss of a body function."

5 The body function relied upon in this application is the spine, in particular the

plaintiff's thoracic and lumbar spine, with pain that goes into her buttocks and

predominantly left leg.

6 The plaintiff relied upon three affidavits sworn 16 June 2015, 17 June 2016 and

5 July 2016. The plaintiff was cross-examined. I have not summarised the

plaintiff's affidavits or evidence; however, I will refer to the relevant evidence in

my reasoning. In addition, both parties relied on medical reports and other

medical material which were tendered in evidence. I have read all of the

tendered material.

The issues

7 Counsel for the defendant informed the Court that there were two main issues

for determination, which were:

• First, whether it was necessary to separate consequences attributable to

the spine from other conditions from which the plaintiff suffered which was

VCC:DC/LP/AS 1 JUDGMENT


depression, neck and right shoulder pain and vertigo; and

• Second, whether the plaintiff satisfied the test for economic loss pursuant

to the Act.

The credit of the Plaintiff

8 The plaintiff's credit was not in issue between the parties. The plaintiff

answered questions directly, made concessions, gave her evidence without

embellishment and was straightforward in her presentation. There was no

suggestion by counsel for the defendant or in the medical evidence that the

plaintiff's credibility was in issue. Overall, the plaintiff impressed me as a

believable witness.

The Plaintiff's background

9 The plaintiff left school midway through Year 10 and, over the years, obtained

employment in various fields such as retail, office, cleaning, hospitality and

labouring, including cooking.

10 The plaintiff attended Gippsland TAFE and obtained her Certificate IV in Youth,

Child and Family Services. In 2000, she obtained employment as a project

officer in management and project coordinator with Try Youth Community

Services, where she worked until about 2008, managing a "Work for the Dole"

project. She then became a part-time coordinator of a program in Moe, which

was four days a week. During that period, she obtained a Certificate IV in

Workplace Training. In 2008, she enrolled at the Gippsland Education Centre

at Warragul and subsequently, obtained a Diploma in Sustainable Agriculture

in 2010.1

11 During 2008, the plaintiff obtained part-time employment at the Longwarry

Service Station, where she worked six-hour shifts on an average of four to five

days per week. She worked as a cook, which involved tasks such as attending

to delivery of stock and moving stock from the foyer area to the freezer room.2

Plaintiff's Court Book ("PCB") 9 2 PCB1 0



The plaintiff's evidence was that the job with the employer was shift work, which

enabled her to pursue her studies and accommodate her family responsibilities.

On occasions, she worked weekends. Upon obtaining her Diploma in

Sustainable Agriculture, it was her intention to return to full-time work.

12 The plaintiff's evidence is that, in November 2009, whilst bending over in a

confined space in the freezer and lifting a box at the Longwarry Service Station,

she injured her spine.3 She continued working with pain during December 2009

and January 2010 but in February 2010, she began to feel extreme pain in her

lower back. She sought medical attention and was off work for approximately

one month, before returning to light duties. She returned to work on various

return to work programs but ceased work due to ongoing lower back pain in

October 2011. At that time, she was working 18 hours per week but was not

managing the work.

13 The plaintiff commenced part-time employment with Headway Gippsland,

where she worked on a social support program in Warragul, working 5 hours,

one day per week. In February 2012, she increased her hours by 12 hours per

week, working Monday, Wednesday and Friday, which enabled her to rest when

she was not working. Further, she had the option of working from home, on

occasions, which she exercised. This work continued until December 2013.

She had difficulty working consecutive days. She returned to her one day per

week until September 2014, when she resigned.

14 The plaintiff gave evidence that she has been looking for suitable light work but

without success. In the meantime, she is undertaking some voluntary work as

a "Meals on Wheels" delivery driver for Baw Baw Shire Council in the Warragul,

Trafalgar and Drouin areas for approximately four hours, one day per week.4

She described this work as very light work as she merely drives the car loaded

with food, which is unloaded for her upon arrival.5 In addition, she does

3 PCB 10 4 PCB 17 5 PCB 17-18

VCC:DC/LP/AS 3 JUDGMENT David v Victorian WorkCover Authority

voluntary social assistance for the elderly one day per week for approximately

six hours.6

15 The plaintiff's evidence was that after completing her Diploma in Sustainable

Agriculture, her initial goal was to undertake consultancy work but in the long

term she wanted to develop and run an organic farm as a business.7 However,

whilst studying for her certificate, she came to the conclusion that work in the

field of sustainable agriculture was not available.8 The plaintiff said that this

forced her to seek alternative work and apply for numerous full-time and part-

time positions but without success. Counsel for the defendant focused a large

part of cross-examination on this issue. The plaintiff said that now there are

more jobs available but her career prospects are limited, as even consultancy

work has a "hands on" component, which she could not do due to her injury.9

The Plaintiff's evidence as to unrelated medical issues

16 Counsel for the defendant tendered medical certificates, which suggested that

the plaintiff was unable to work for conditions unrelated to her spine during

certain periods

17 Counsel for the defendant submitted that it was necessary for the plaintiff to

separate the consequences attributable to the spine from other medical

conditions from which she suffered, which was depression, neck and right

shoulder pain and vertigo.

18 In respect to the Medical Certificate of 2 May 2014 for vertigo, the plaintiff's

evidence was that while working at the Longwarry Service Station she had an

operation on her ear. As a result, on occasions, she suffered vertigo and

tinnitus. She was registered with Centrelink and was required to perform 15

hours of voluntary work. At the time, in May 2014, she was doing voluntary

work of 6 hours. She had symptoms of tinnitus and because she did not think

6 T77, L9-10 7 PCB 18 8 T22, L16-20 9 PCB 16, T52 — 54



she could work two to three days per week, she obtained a certificate from her

doctor as a precaution. She could not explain why the Medical Certificate did

not refer to her spinal problems.

19 In respect to the Medical Certificate for shoulder and spine pain for the period

June to September 2015, the evidence was that the plaintiff sought treatment

from the Warragul Osteopathic Clinic from November 2010 until May 2016 due

to her work injury. In July 2015, she reported low-back pain and shoulder pain

and was treated for both. A balanced reading of the osteopathic reports confirm

that she was seeking treatment for a variety of things but principally for her

back.

20 The plaintiff's evidence was that any problems she had in the past with her neck

and shoulder did not affect her ability to perform physical work, in particular,

gardening.1° She does not take medication for her neck or shoulder.11

21 Finally, there were Medical Certificates relating to depression for 23 September

201410 November 2014. Both certificates referred to the plaintiff's chronic low-

back pain as a secondary related condition. The plaintiff's evidence was that

she was under pressure with work at that time. Furthermore, I accept that the

plaintiff's low-back pain was referred to on these certificates and the plaintiff's

claim relates to the fact that she cannot work more than part time because of

her spine condition.

22 I accept that the plaintiff has separated the consequences attributable to the

spine from other conditions from which she suffered.

The legislative framework

23 In order to succeed, the plaintiff must prove, on the balance of probabilities,

that:

10 T84, L18 11 T86



(a) "the injury" suffered by her arose out of, or in the course of, or due to the

nature of, her employment with the employer;12

(b) "the injury" with its resulting impairment must be permanent, in the sense

that it is likely to continue into the foreseeable future;13

(c) "the consequences" to the plaintiff of her impairments to the spine in

relation to "pain and suffering consequences" or "loss of earning capacity

consequences" 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".14

24 In addition, in relation to "loss of earning capacity consequences", the plaintiff

has a specific burden to establish:15

(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;16

(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;17

(c) that the conditions set down in s134AB(38)(e)(i) and (ii) are cumulative;

and

(d) that even with rehabilitation and retraining, she will still sustain a loss of

40 per cent or more.15

12 Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11] 13 Barwon Spinners (supra) at paragraph [33] 14 Section 134AB(38)(b) and (c) 15 Section 134A8(19)(b) and 38E of the Act 16 Section 134AB(38)(e)(i) of the Act 17 Section 134AB(38)(e)(ii) of the Act 18 Section 134AB(38)(g) of the Act

VCC:DC/LINAS 6 JUDGMENT


25 The expression "suitable employment" which appears in s134AB(38)(f) and in

s134AB(38)(g) is defined in s 3 of the Workplace Injury Rehabilitation and

Compensation Act 2013 in the following terms:

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited —

(a) having regard to —

(i) the nature of the worker's incapacity and the details provided in medical information, including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker's pre-injury employment; and

(iii) the worker's age, education, skills and work experience; and

(iv)the worker's place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether —

(i) the work or the employment is available; and

(ii) the worker or the employment is of a type or nature that is generally available in the employment market.

26 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, for both pain

and suffering and loss of earning capacity.19

27 Accordingly, it is appropriate for me to first look at the various tests for loss of

earning capacity, which must be satisfied by the plaintiff in respect to the spine

injury.

Loss of earning capacity — the 'narrative test'

28 It was not in issue between the parties that the plaintiff suffered a work-related

injury to her spine.

19 Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]



29 In respect of loss of earning capacity, it is necessary for me to consider the

plaintiff as at the present time.

30 The up-to-date medical evidence of the plaintiffs capacity for employment was

expressed by Dr Slesenger, occupational physician, Mr O'Brien and Mr Dooley,

orthopaedic surgeons, and Dr Agaskar, general practitioner.

31 In April 2016, Dr Slesenger diagnosed an aggravation of the degenerative

disease of the lower thoracic and upper lumbar spine. He formed the opinion

that, as a result of her spinal injury, the plaintiff had a residual capacity, with the

following restrictions:

• no push, pull, carry or lift over 5 kilograms;

• no repetitive bending or twisting;

• sit and stand as required; and

• fours a day for four days per week.

32 It was Dr Slesenger's opinion that the above restrictions are permanent. He

thought that the plaintiff had the capacity for work, working up to 16 hours per

week, and anticipated that she would be able to continue to work on a consistent

and reliable basis. He was of the opinion that her incapacity for work is unlikely

to change in the foreseeable future. He expressed reservations with regard to

her experience and ability to deploy her qualifications in training and assessing

sustainable agriculture and youth and family services. He was concerned as to

her previous employment experience in clerical/managerial roles and the

transferability of the experience in an open job market. He described her

prognosis as guarded. He noted the length of her occupational impairment and

disability and her poor response to treatment.

33 In May 2016, Mr O'Brien, orthopaedic surgeon, said the plaintiff reported

moderate disability associated with a chronic low-back pain. He said she is



certainly limited in relatively heavy physical tasks and is quite incapable of

undertaking employment which does involve manual-type duties. She is not

physically capable of undertaking pre-injury employment but has a capability of

undertaking light suitable employment which should be limited to approximately

20 hours per week. He described her prognosis as poor.

34 The plaintiff's general practitioner, Dr Agaskar, provided five letters, dated 12

May 2015, 5 November 2015, two dated 21 June 2016 and one dated 30 June

2016. The two letters dated 21 June 2016 expressed different opinions on the

number of hours the plaintiff could work. They were identical except the hours

stated were different. He said, after considering the plaintiff's chronic lumbar

spine injury and pain and her age, he concurred with specialist recommendation

that the plaintiff could return to work. Initially, he said four to six hours a day,

four days a week, with restrictions of no push-pull-lift objects of more than 5

kilograms in weight and no twisting and no repeated bending, squatting or

kneeling. She would require rest breaks as needed and could not stand or sit

for long periods of time. In the next letter, he limited the hours of work to four

to five hours a day, four days a week, with the same restrictions.

35 In the further letter dated 30 June 2016, Dr Agaskar said he consulted with the

plaintiff, who said she was happy to work in the range of hours mentioned in the

report and that she had one specialist recommending four hours a day and the

other recommending five hours a day. I accept that Dr Agaskar is referring to

the reports of Dr Slesenger and Mr O'Brien.

36 Mr Dooley, orthopaedic surgeon, said he believed the plaintiff could return to

suitable work on a graduated basis and that she would have the capacity to

return to full-time work. He said the plaintiff would continue to note intermittent

low-back pain and lower limb pain.

37 The plaintiff's evidence was that she thought she could work up to 17 hours a

week, although she indicated that her pain increased when she worked on



consecutive days. In re-examination, counsel asked the reason the plaintiff

could only engage in part-time work, where she said:

"Because of my back. Because I can't sit down for too long. I can't stand up for hours, particularly on concrete floors ... So there's only limited work I can apply for."2°

38 I also note that the plaintiff's evidence was that when she worked 17 hours, she

had an employer who enabled her to perform some of her work from home.

39 Counsel for the defendant relied upon the general practitioner's report and

submitted the plaintiff could work 24 hours a week.

40 Given the state of the medical evidence, I tend to favour the evidence of the

occupational physician, Dr Slesenger. He is the expert/specialist in

occupational health and safety qualifications or experience, as to the hours of

work and the type of work that the plaintiff can undertake. His view is the plaintiff

can work up to 16 hours per week with restrictions. Mr O'Brien said 20 hours

per week and the general practitioner said between 16 and 24 hours per week.

The plaintiff has been working 17 hours per week, although she has had

difficulty working consecutive days. She had the option to work from home,

which she exercised. Taking all the evidence into account, I consider

somewhere between 16 and 17 hours per week is the plaintiff's capacity in

suitable work.

41 The plaintiff's evidence is that she has worked in physical employment since

leaving school. She can no longer work in pre-injury employment. To her credit,

she has undertaken study but had hoped that she would be able to pursue a

career in sustainable farming. She has come to the conclusion that that is not

possible. The plaintiff cannot return to pre-injury employment. Given her age

of fifty-nine years, and the fact that there are restrictions imposed on the type

of work the plaintiff can obtain, I consider this represents a loss to the plaintiff.

42 I am satisfied that the plaintiff's impairment is permanent, given the medical

20 T111, L26-28

VCC:DC/LP/AS 10 JUDGMENT David v Victorian WorkCover Authority

evidence of Dr Slesenger, Mr O'Brien and Mr Dooley. I note that the impairment

has remained since 2010.

43 I am satisfied it is fair to describe the consequences 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

impairment. No element of 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.

44 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.

Statutory test — loss of earning capacity

45 The statutory test under the Act requires that the worker to have a loss of

earning capacity of 40 per cent or more measured by comparing the worker's

gross income before her injury and after the injury.

46 It was accepted by both parties that the work the plaintiff was performing at

Headway was suitable employment.

47 I accept that the plaintiff's "without injury" earning figure before injury is $31,280

gross per annum. Sixty per cent of that figure is $18,768. At the time of her

injury, she was working during the week and during the weekend. The hourly

rate of pay was $21.72 on weekdays and $28.38 on weekends. If the plaintiff

worked 25 per cent weekends and 75 per cent week days, she would earn

701.18 in a 30-hour week. That being the number of hours she was working

at the time of her injury that is annualised to be $36,461.36. Sixty per cent of

that figure is $21,876.

48 I accept that the plaintiff can work up to 17 hours per week. If she can work 17

hours per week at the hourly rate she was receiving at Headway of $21.66 per



hour, that is $368 per week and annualised, that is $19,147. Accordingly, I

conclude that the plaintiff has greater than 40 per cent loss.

49 I am also required to consider issues of retraining and rehabilitation pursuant to

ss(g) of the Act. No retraining has been offered or provided by the defendant.

The plaintiff has undergone her own retraining. There is no evidence that

rehabilitation would assist the plaintiff. 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.

50 Therefore, I am satisfied the plaintiff has satisfied the 40 per cent requirement

and has sustained an injury within s134AB of the Act.

51 The above position is reached purely by reference to the plaintiff's physical

condition; namely, her spine. No element of the mental component is taken into

account in this assessment. Indeed, the mental element is required to be

excluded by s134AB(38)(h) of the Act.

52 In view of my findings in relation to the physical injury, it is not necessary for me

to consider the plaintiff's claim under paragraph (c) of the definition of "serious

injury" to be found in s134AB(37) of the Act.

53 In such circumstances, the plaintiff's application seeking leave to bring

proceedings for damages for pain and suffering and loss of earning capacity is

successful.



IN THE COUNTY COURT OF VICTORIA Revised AT LATROBE …€¦ · 19 In respect to the Medical Certificate for shoulder and spine pain for the period June to September 2015, the evidence

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