Cvijetovic v Inghams Enterprises Pty Limited

Revised Restricted Suitable for Publication

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

Case No. CI-15-05183

PAULINE ANNE CVIJETOVIC

Plaintiff

v INGHAMS ENTERPRISES PTY LIMITED

Defendant ---

JUDGE:

HER HONOUR JUDGE K L BOURKE

WHERE HELD:

Ballarat

DATE OF HEARING:

11 February 2016

DATE OF JUDGMENT:

29 February 2016 (Revised)

CASE MAY BE CITED AS:

Cvijetovic v Inghams Enterprises Pty Limited

MEDIUM NEUTRAL CITATION:

[2016] VCC 152 REASONS FOR JUDGMENT ---

Subject: Catchwords: Legislation Cited: Cases Cited:

Judgment:

ACCIDENT COMPENSATION Serious injury – impairment to the lumbar spine – pain and suffering – loss of earning capacity Accident Compensation Act 1985, s134AB(16)(b), (37) and (38) Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSCA 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 Leave granted to bring proceedings for pain and suffering and loss of earning capacity. ---

APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr B E Walters QC with Mr K D Mueller

Saines Lucas Solicitors

For the Defendant

Mr I D McDonald

Sparke Helmore Lawyers

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

!Und efined Boo km ar k, I

HER HONOUR: This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from 2003 to 18 May 2011. The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38). The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning: “(a) permanent serious impairment or loss of a body function.”

The body function relied upon in this application is the lumbar spine Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages. The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s134AB(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity. By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked, and as being at least very considerable”.

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JUDGMENT Cvijetovic v Inghams Enterprises Pty Limited

I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders. Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured. Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established. Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,1 Grech v Orica Australia Pty Ltd & Anor2 and Petkovski v Galletti3 in reaching my conclusions. The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material. The Plaintiff’s evidence The plaintiff is aged sixty-two, having been born in April 1953. She is married with adult children. She is presently supported by her husband.

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(2005) 14 VR 622 (2006) 14 VR 602 [1994] 1 VR 436

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The plaintiff left school before the end of Year 8. Her English skills are good. Save for a Certificate II and III courses in food handling, the plaintiff does not have any formal qualifications or training. Since leaving school, the plaintiff has worked as a laundry-hand, takeaway assistant, and process worker. She passed a pre-employment medical before commencing work with the defendant. Having initially been placed with the defendant through a labour-hire firm, the plaintiff became a full-time employee in the late 1990s. The plaintiff suffered an injury to her non-dominant left shoulder in May 2000. Although she continued to provide the defendant with light duty certificates, including restrictions on lifting, she believed some tasks she then performed, such as pulling a trolley up a step and lifting bags of protective clothing, contravened these restrictions. The plaintiff agreed that from early 2005 onwards, she was effectively placed on alternate duties including cleaning and administration tasks. For a short time, she did production work but ceased because she could not cope.4 From 2009 onwards, none of her work had anything to do with production.5 The plaintiff confirmed she did cleaning and administrative duties from 2009 until 2011 because of her left shoulder condition. Her left shoulder problem has continued to trouble her ever since.6 The plaintiff has had several physiotherapy treatments over the years for her left shoulder and elbow and has taken Naprosyn to stop the swelling. She was pretty sure she started taking Naprosyn on and off from 2008.

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There were a few recurrences of the plaintiff’s left shoulder condition. Every time the plaintiff had a flare-up she had a few days off work but then went back to her normal duties. These episodes were short lived.7 In 2004, the plaintiff injured her right knee at work. She could not recall if she had to take any time off. She was diagnosed with tennis elbow in about 2003, and had shingles in 2009. In early 2008, the plaintiff experienced back pain while pulling a laden trolley up a step. She also hurt her back while cleaning a milk dispenser. The plaintiff experienced low back pain on many occasions, pulling the trolley up a step or when doing other work tasks. As far as she could recall, she verbally reported most of these incidents. The plaintiff had days off here and there because of back pain, and received treatment from Dr Chan. She also had physiotherapy. Her back pain usually settled with rest and/or treatment. She had many flare-ups of back pain at home from early 2008, and at some stage, she developed symptoms affecting her right leg. The plaintiff confirmed her first back injury was in February 2008.8 She thought she had pulled a muscle but it was just a very sharp pain in her back. She was prescribed some anti-inflammatory medication. She had three days off and then she returned to her normal permanent light duties. She did not claim compensation.9 The plaintiff was not sure if the next time she hurt her back was the episode recorded by Dr Chan on 29 December 2010.10 She did not put in a claim in relation to that incident.11

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The plaintiff recalled an incident in March 2011, cleaning a fridge when she felt a grabbing sensation in her low back.12 The plaintiff deposed that in April 2011, she took five weeks off work because of her back and right leg symptoms, but then returned to the same duties. The plaintiff was pretty sure the five weeks off work were in April 2011.13 During that time, she could not get out of bed.14 The plaintiff however agreed she went off work from 6 February to 28 March 2011. During that time, she could recall having a CT scan but not an x-ray.15 The plaintiff agreed she submitted normal certificates during that time and made no claim as she thought she was only going to have a couple of days off work. She readily reported she had hurt her back, making a verbal report.16 The plaintiff deposed that on 18 May 2011, when cleaning out the canteen fridges, she felt her back crunch, causing severe pain (“the incident”). She found it difficult to stand, and had to hold onto a table to prevent herself from collapsing. The plaintiff confirmed the circumstances of the incident, after which she stopped working.17 She agreed it seemed to have been quite a dramatic incident and resulted in severe back pain.18 The plaintiff’s first claim in relation to her back injury was lodged on 23 May 2011.19 The Claim Form set out:

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“Multi-level disc degeneration, lower back. Injured working at Inghams over 17 years. Cleaning a milk dispenser when first felt pain in her back. The date of injury was said to be 11 February 2008, on which date she reported the incident to Ashley Wilcox, her supervisor. Everything over time all jobs- cleaning milk dispenser.”

In re-examination, the plaintiff explained everything was over time and that there was a delay in her reporting her injury because it happened over time.20 She reported it to Ashley Wilcox, who worked on the production line.21 The plaintiff thought she had told Dr Yong on 3 June 2011 about the incident. It was an episode when her back crunched and she nearly fell to the ground.22 The plaintiff denied she told the physiotherapist at work her injury was not work related.23 In May 2011, the plaintiff handed a light duty medical certificate to her manager, Mr Lawrence. He told her she would have to return to duties on the factory floor which she believed were not in accordance with the restrictions, so she stopped working with the defendant soon after. The plaintiff agreed there was some issue involving the union as Mr Lawrence described in his statement.24 There was a meeting at which the plaintiff’s duties were discussed and he told her if she put in her WorkCover form then she would be sent back to the factory. It had then been quite a few years since she had done that sort of work. She had previously been good at it and that was where she was always placed.25 The plaintiff was not happy with this proposal. It was not true that the reason she ceased work had nothing to do with any specific injury.26 The plaintiff has not worked since then. The defendant tried to get her back to

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work over the next few months; however, she felt she could not return because of her back and leg conditions, and as a result, she resigned in October 2011. Prior to suffering injury, the plaintiff was earning about $30,000 a year. The plaintiff has not looked for work since resigning. Dr Chan has not cleared her fit to return to work. He wanted to send her for rehabilitation but the defendant denied funding. The plaintiff has not undergone any retraining.27 Treatment At the time of her first affidavit, sworn in February 2015, the plaintiff was seeing her general practitioner fortnightly, taking Naprosyn 500 milligrams x 2, Endep 50 milligrams daily, Tramal 100 milligrams as required, generally about five times a week. Since that time, she had been prescribed Lyrica. Dr Chan continues to prescribe 20 tablets of Tramal per month, which the plaintiff uses up over that period. He has warned her against becoming opiate dependent, and she takes as few tablets as possible despite pain. Since commencing on Lyrica, the plaintiff has had less back spasms and is sleeping somewhat better. She now gets about five hours of sleep which she feels is of better quality than before taking Lyrica. She now gets up once or twice a night, walks around and has a stretch. She goes back to bed as quickly as she can, otherwise she finds it too difficult to get back to sleep. The plaintiff did not take any medication on the morning of the hearing as she wanted to be alert and understand what was going on.28 Normally she would have to take Naprosyn (500 milligrams) if she was in pain. The plaintiff takes Lyrica (one tablet at night). She has stopped taking a tablet in the mornings as it made her too groggy and she could not function during the day.

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Dr Chan wanted to refer the plaintiff to a specialist but the defendant denied funding for a referral.29 The plaintiff underwent physiotherapy before and after ceasing work but it actually worsened her back pain and she ceased attending on medical advice.30 In her first affidavit sworn in February 2015, the plaintiff described continuing constant variable back pain affected by activity. She often experienced a burning sensation in her back, and shooting pains affecting both feet and legs. Despite medication, the plaintiff now continues to have shooting stabbing pains in the lower back into both buttocks, down the top of both thighs, but not necessarily simultaneously. The pain goes down into her lower legs and shoots out to the soles of her feet, an electric shock-type sensation. Whilst the plaintiff suffers constant pain, the severe stabbing pain is intermittent, usually a few times a week, and lasting up to an hour. When the pain is not as severe, she has a constant nagging ache in her lower back which does not necessarily go down to her feet or legs. The plaintiff’s back condition is not getting any better. She has a lot of pain. She thinks it is getting worse but “she is not a doctor”.31 The plaintiff now has pain all the time. It is in her back, down her buttocks, and is also “under her hips going onto the bottom of both sides”. It is “just full on”. There has been no other cause for back pain since leaving work.32 Until about a year ago, the plaintiff had intermittent pain in her upper back and shoulders, and numbness into her fingertips. The fingertip numbness stopped about a year ago and has not recurred. Now and again, she has a burning

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sensation between her shoulder blades, which is unpleasant but not very painful. The last occurrence thereof was some months ago. The plaintiff was asked about Mr Hooper’s 2014 examination when he reported she complained of discomfort in her left shoulder and left elbow and some burning and stiffness in her neck. The plaintiff told Mr Hooper about her shoulder and at the time, she might have had a sore neck but she did not really remember.33 She still has a sore left shoulder and elbow but no longer has shooting pains into both hands and numbness in her fingers.34 The back injury has also affected the plaintiff’s mental state. Before the back injury, and despite her left shoulder/arm injury, the plaintiff enjoyed working for the defendant and interacting with many other staff members. She was a people person. The pay was pretty good, and she believed she was a conscientious worker. Outside work, the plaintiff went to bingo and on outings with family and friends, attended family functions, entertained family and friends at home, and looked after and played with her grandchildren. She was also quite fit. She regularly exercised, and she used to run exercise programs with the defendant. She also enjoyed swimming. The plaintiff enjoyed her relationships with family and friends. She was confident, hardworking, and proud of her ability to earn a wage to support her family. She did the usual home chores. The plaintiff’s back injury limited or prevented her from doing any work requiring significant sitting, standing or walking, bending, twisting, repeated heavy lifting, or work where her back would be exposed to jarring, jolting, vibration or cold.

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As of February 2015, and at present, the plaintiff attended bingo less frequently than pre injury, and often left early, because of back pain or discomfort. Her back pain affected her ability to drive for extended periods. The plaintiff is still driving but had to give her manual sports car, which she loved, to her daughter. The plaintiff purchased a new car because she could not get out of the sports car and could not change the gears.35 The plaintiff’s ability to play with and look after her two grandchildren, born in 2000 and 2004, was affected, and she felt particularly sad in that regard. The plaintiff entertained less at home, as her back injury affected activities such as cooking. Many chores had also been affected, such as putting things in low cupboards or emptying the dishwasher. Depending on the severity of her pain, the plaintiff required help with shopping. The plaintiff was a lot less physically active because of her back condition, and had lost much of her former fitness. The plaintiff believed her temperament had changed and she had become more difficult to live with. While she tried hard to be get along with people, she had lost a lot of her former interest and enthusiasm in life. The back injury had affected the plaintiff’s family relationships, including her sexual relationship with her husband. Whilst she is a caring mother, the plaintiff believed her four children generally gave her a wide berth because of her temperament change. The grandchildren tended not to ask her to take them on activities as they did before the back injury, because, she believed, they were concerned about her back condition. The plaintiff used to enjoy motorbike riding with her husband. She now avoided that activity because of its effect on her back.

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The plaintiff’s back injury affected some of her personal chores, including putting on socks and shoes as well as cutting her toenails or shaving her legs. The back injury affected the plaintiff’s sleep. Back pain often woke her and kept her awake. It was difficult to get comfortable in bed because of the back pain and discomfort. As of February 2015, the plaintiff could generally only sleep a few hours at a time, and avoided sleeping on her back or on either side. She rarely felt rested in the morning, and felt tired and lacking in energy during the day. This was not the case before the back injury. The plaintiff has not been capable of working since 18 May 2011, and believes she is totally and permanently incapacitated for work, as her general practitioner continues to certify. There are some days when the plaintiff feels the pain is such that she might be able to return to some light work. Quite often and unpredictably, she suffers the onset of such severe low back pain that she has trouble getting out of bed without help. Those severe symptoms can last for a day or two, and at other times for weeks. When the symptoms are that bad, the plaintiff has difficulty walking, and needs to hold onto the walls or other objects. She uses a walking stick around the house but does not take it out with her, as she does not want to seem to be disabled. When the back pain is so bad, she tries not to go out at all. It can take a week or two before the pain settles sufficiently for the plaintiff to be able to walk properly and get out and about and leave the home. On a few occasions when the symptoms have been like this, the plaintiff has attended Dr Chan for painkilling injections into her lower back. Even when the pain is not extremely bad, the plaintiff is only comfortable standing up for about half an hour at a time, or sitting down for about 45 minutes, because she needs to sit and stand, or sit and take a walk about, to ease the VCC:DC/LW/AS

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spasm and pain. The plaintiff is only comfortable walking about 10 to 15 minutes on a level surface. The plaintiff cannot think of any job she would be capable of doing, and certainly not on a regular basis. She might be able to do some menial administrative functions for some days, or perhaps even a week or two at a time; however, she could not be relied on to attend work day in, day out, for weeks on end, as her back often gets so bad she is hardly able to leave the house. For those reasons, she does not think she could do any of the jobs that were suggested in October 2015. The plaintiff has very limited computer skills, and usually gets one of her children to do anything but the simplest tasks. She can view and send emails, but has poor keyboard skills and cannot do most other functions on the computer. The plaintiff continues to attend South Morang Shopping Centre most days so she can walk up and down the level surface inside the shopping centre, and there are plenty of seats available to have a rest. The plaintiff has a treadmill at home which she has on the ‘flat’ setting, and usually walks on it for about 5 to 10 minutes on a low speed setting. If she goes too much longer, the pain sets in and she needs to stop and then have another session later in the day. Now, when the plaintiff goes shopping, she usually takes her eldest son, who lives at home with her, to push the trolley and carry the heavier bag. She tries to get to the shops frequently, up to six times a week, and just buys small quantities at a time, which she can better handle. Before injury, the plaintiff had a passion for shoes. Outside of work, she used to enjoy wearing high heels, which she can no longer do. She used to enjoy partying and dancing. Since the injury, she has been to weddings and has

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attempted to dance, but suffered such severe pain she had to stop after a short time. Prior to the injury, she would have been on the floor most of the time that there was any dancing. Medical evidence Dr Chan at Summer Hill Medical Centre most recently reported on 12 January 2016. The plaintiff first consulted that clinic with lower back pain on 12 February 2008 from work-related injuries to her lower back the previous day. Dr Chan thought clinically, the plaintiff had soft tissue injury to her lower back. Dr Chan noted the plaintiff was managed conservatively with rest and antiinflammatory medication, and was able to return to work on 14 February 2008. However, her low back pain had been on and off since 11 February 2008 with pain radiating to her left leg. Dr Chan noted a lumbar CT scan of May 2011 which showed disc prolapse at L4-5 and impingement of the nerve root at L5 at the left. Dr Chan noted the plaintiff continued to receive conservative treatment, but unfortunately she had developed a Chronic Pain Syndrome and depression and insomnia in 2011. In Dr Chan’s view, the plaintiff suffered from lower back pain with soft tissue injury with disc prolapse at L4-5, and impingement of the nerve root at L5 on the left. He also diagnosed a Chronic Pain Syndrome and depression. Dr Chan noted conservative management of the soft tissue injury on the lower back and depression. The plaintiff was on anti-inflammatory medication, physiotherapy, anti-depressant and psychological counselling. Dr Chan noted the plaintiff was still having ongoing low back pain, with some days better than others. She was suffering from depression, with difficulty sleeping, despite anti-depressants. VCC:DC/LW/AS

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Dr Chan noted soft tissue injuries like lower back pain is a chronic disability. The plaintiff was currently suffering a Chronic Pain Syndrome with depression. He thought she then had no capacity for work due to her Chronic Pain Syndrome and depression with insomnia. He noted she found it difficult to concentrate, and felt tired most days. In a supplementary report of 25 January 2016, Dr Chan advised that the plaintiff had been suffering from lower back pain since February 2008 which was persistent and radiating to both legs, especially the right. Clinically, due to the ongoing pain, the plaintiff had a Chronic Pain Syndrome. She was depressed as a result of having chronic pain, which adversely affected her lifestyle, including an inability to sleep well, and not being able to do her normal daily routine such as walking for exercise. Dr Chan’s certificate of 22 September 2012 set out the plaintiff was unfit for all duties from October to November due to a soft tissue injury.36 Medico-legal examiners Mr John O’Brien, orthopaedic surgeon, first examined the plaintiff in December 2014. The plaintiff told Mr O’Brien of the shoulder injury in 2000, and injury in April 2011, when she felt a sudden crunching in her lower back whilst cleaning a refrigerator. The plaintiff advised that after about five weeks off work, she returned to modified duties, but after about three weeks, she experienced a further exacerbation of pain when she turned suddenly at work, and suffered the onset of severe low back pain.

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Despite physiotherapy, the plaintiff was unable to return to work, and resigned in October 2011. The plaintiff told Mr O’Brien despite the cessation of employment, she continued to experience constant low back pain with associated shooting pain into the buttocks and top of both thighs.

She was not having any physiotherapy

because it apparently aggravated her back pain. The plaintiff then described constant low back pain extending into both buttocks which she rated at 7 out of 10, associated with intermittent shooting pains going down the posterior aspect of both thighs to her knees. In addition, the plaintiff reported she had had constant left elbow pain, which she rated at 6 out of 10. Mr O’Brien noted the plaintiff moved somewhat stiffly and had a rather short – stepping gait with no specific limp. Physical signs demonstrated some painful restriction of lumbar movement. There were no signs to suggest nerve root compromise or radiculopathy, with a CT scan in May 2011 reporting multi-level degenerative change. Mr O’Brien thought the plaintiff then presented with chronic, non-specific low back pain. He thought her clinical condition was stable, but there did not appear to be any indication for further investigations or specific invasive type treatment. At that stage, Mr O’Brien thought the history would indicate the prognosis was poor, with the chronic nature of the described pain suggesting pain would be an ongoing significant problem. Mr O’Brien noted the plaintiff described moderate disability associated with chronic back pain. Consequently, she reported being limited significantly in physical activities.

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Mr O’Brien considered on the basis of the plaintiff’s presentation, that physically she was not capable of undertaking her pre-injury occupation. In fact, the nature of her presentation now indicated that she was totally incapacitated and that could be regarded as permanent. Thus, as a result of the plaintiff sustaining a significant lumbar injury, Mr O’Brien thought she would not return to the workforce, noting indeed she was currently limited in her general social, domestic and recreational activities, and that would be a permanent situation. Mr O’Brien re-examined the plaintiff in February 2016. On that examination, the plaintiff reported constant low back pain extending into both buttocks, 8 out of 10, aggravated by prolonged standing and other movements. She also complained of an intermittent bilateral leg pain – the shooting sharp type – extending down mainly the posterior aspect of the legs into the feet. This occurred without any specific aggravating factor. The plaintiff told Mr O’Brien she remained quite capable of normal activities of daily living. She sought help from her husband with heavy domestic tasks, and she continued to drive, although she needed an automatic car. On examination, Mr O’Brien noted physical signs had basically had remained unchanged, with continuing evidence of painful restriction of lumbar movement, but without any signs to suggest nerve root compromise. He noted a very recent MRI scan again demonstrated multi-level disc degenerative change without any evidence that suggested nerve root involvement, which would certainly correlate with the clinical finding. Mr O’Brien thus concluded again, the plaintiff now presented with chronic nonspecific back and leg pain. On the available evidence, it was difficult to be precise concerning the pathology underlying pain generation, but on the basis

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of investigations, it would suggest aggravation of generalised lumbar spondylosis was the source of her chronic back pain. Based on the history, Mr O’Brien would consider employment remained a significant contributing factor to the plaintiff’s current clinical condition. He thought the situation of chronic back and leg pain was certainly stable. He noted the plaintiff continued to describe quite severe back pain, although some benefit was obtained from the use of multiple medication. He suggested a conservative regime. Mr O’Brien thought the prognosis remained poor. Mr O’Brien noted the plaintiff in fact continued to describe a moderate disability caused by chronic low back pain. In his view, indeed she was unable to continue her pre-injury occupation, and as a result of ongoing back pain, he would suggest she was not capable of obtaining suitable employment and that she was totally incapacitated on a permanent basis. He noted, in fact, the plaintiff remained permanently limited in her general domestic, social and recreational activities due to chronic back pain. Investigations Dr Chan organised an x-ray of the lumbar spine in February 2011. It was reported there was mild scoliosis and multi-level disc degeneration. A CT scan or MRI scan would be recommended if exclusion of an associated disc bulge was sought. There was a CT scan of the lumbar spine organised by Dr Chan on 31 May 2011. It was reported at L2-3, there was mild to moderate disc space narrowing. Mild diffuse disc bulging was present, without canal stenosis or nerve root impingement.

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At L3-4, there was mild disc space narrowing. There was mild posterior diffuse disc bulging effacing the thecal sac. There was an incidental 8-centimetre cyst of doubtful relevance. There was a mild degree of ligamentum flavum laxity seen, and that combined with the disc bulging to cause mild central canal stenosis. There was no nerve root impingement. At L4-5, there was moderate posterior diffuse disc bulging and mild disc narrowing. The disc bulge was biased towards the left, and it narrowed the left lateral recess with probable impingement of the traversing left L5 nerve root. There was contact by the disc contour of the exiting L4 nerve root just beyond the neural foramen. Dr Chan organised an MRI scan of the plaintiff’s lumbar spine in January 2016. It was reported there was multi-level mild lumbar degenerative disc disease and no canal stenosis or nerve root compression. Summary of the Plaintiff’s income tax returns Financial Year Ending

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Gross Income

30 June 2005

$25,843.00

30 June 2006

$25,377.00

30 June 2007

$20,723.00

30 June 2008

$41,750.00

30 June 2009

$53,758.00

30 June 2010

$35,208.00

30 June 2011

$29,514.00

30 June 2012

$55,927.00

30 June 2013

$29,985.00

30 June 2014

$249.00

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Vocational assessment A vocational assessment of the plaintiff was prepared for the plaintiff’s solicitors by Suzanne George, occupational therapist, on 27 January 2016. Ms George considered the plaintiff had no capacity for suitable employment or for retraining. She thought that the suggested jobs were unsuitable for the plaintiff. The Defendant’s medical evidence Medico-legal examiners The plaintiff was examined by Dr Yong, occupational physician, in June 2011. Dr Yong’s history was of the onset of the back condition in 2008 doing cleaning duties with the milk dispenser. In March 2011, the plaintiff was doing her duties, cleaning a big fridge, and in May 2011, on her return to work, she was told to return to production-line duties. That made her unhappy and stressed. Her back pain worsened, and she attended her general practitioner and had not been back to work since. Dr Yong thought the plaintiff had an age-related degenerative back condition, and the main underlying factor contributing to it was her age. That condition could be aggravated, but the aggravation ceased within a few days of the alleged incident. He thought the plaintiff should not suffer a permanent impairment as a result of her injury, and that after a few weeks, she should be able to go back to work without repetitive bending and twisting of her back, and avoiding lifting more the 5 kilograms. Mr Jonathan Hooper, orthopaedic surgeon, first saw the plaintiff in May 2013. Mr Hooper had a history that the plaintiff developed trouble with her back, but she had no associated accident or injury in 2007, but she did not remember exactly when. She ceased work in May 2012 as she could not cope. Prior thereto, the plaintiff had been on light duties, but in May 2012, she developed

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significant spasms in her back. She could not get out of bed, and had not worked since. On examination, there were no neurological signs, and some restricted lumbar movement. The relevant diagnosis was degenerative disc disease in the low back, and the plaintiff also had impingement in the left shoulder. Mr Hooper noted the plaintiff had been able to work with the shoulder problem, even though it had been uncomfortable. He noted the plaintiff’s back spasms were the reason why she ceased work. Mr Hooper thought both conditions were due to constitutional degenerative changes, aggravated and accelerated by work.

He would be hopeful the

plaintiff’s back condition may improve to some degree as the aggravation of work activities ceased. Mr Hooper thought there was little to find on examination of the plaintiff’s back now, but she did have degenerative disc disease.

He considered the

aggravation had ceased. He did not think the plaintiff exaggerated her symptoms, and noted she was enjoying her work. Mr Hooper thought the plaintiff’s condition was stable. Her symptoms were much better now she was not working, and hopefully, they would continue to improve. He noted the plaintiff did not mention to him any back condition in February 2008. Mr Hooper could not really see any reason to change the thrust of his report after he was provided with a more extensive history of the plaintiff’s back complaints. Mr Hooper re-examined the plaintiff in May 2014. On examination, Mr Hooper found evidence of tendinopathy in the left shoulder, and minor tendinopathy in the left elbow.

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There was some evidence of

JUDGMENT Cvijetovic v Inghams Enterprises Pty Limited

degenerative disc disease in the plaintiff’s neck and lumbar spine. The combination of those physical problems, together with the heavy work she was requested to do, made it impossible for the plaintiff to continue the work she had been doing. Mr Hooper thought it was reasonable to suggest the shoulder and arm symptoms were precipitated by work, and they had persisted due to the underlying pathology. He did not believe the plaintiff was exaggerating her symptoms. If it was only her elbow and her shoulder, he thought the plaintiff would still be probably working, but the combination of neck and low back symptoms had made it difficult for her to continue working. Associate Professor Graeme Brazenor, neurosurgeon, examined the plaintiff in July 2015. He had available a number of medical reports and also reports from lay witnesses. Associate Professor Brazenor verified the first significant injury was to the left shoulder in 2000. Then there were modified duties in February 2008, when the plaintiff was pulling a heavy trolley. The pain gradually settled, until later in 2008 when she was lifting a 10-litre milk bladder and felt the grabbing pain. Eventually, the plaintiff’s back settled until May 2011, when she had low back pain which became symptomatic when she lifted milk bladders into a dispenser. From 2008 to 2011, the plaintiff’s back was recurrently problematic. She regarded those episodes as spontaneous and self-limited. Sometimes she told her doctor and other times she did not. The plaintiff was off work for about five weeks after the May 2011 episode. She had physiotherapy that made her worse. After five weeks, she returned to work, and only lasted three weeks because the pain recurred. She last worked in October.

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The plaintiff ultimately said that she had not become any better in the last two years since being off work. She had good and bad days. In addition to low back pain, she added she had a burning pain between her shoulders, and shooting pain in her hands and feet. On examination, there was no palpable spasm. There was some restriction of lumbar movement. In summary, Associate Professor Brazenor thought that it appeared the May 2011 injury was more significant than any of the previous ones. At present, he expected her contemporary status was such that she would be fit to return to the work she did between 2008 and 2011, but he would caution her either to wear a back brace or seek a job that did not involve recurrent bending, pulling a trolley up a step, or accessing less than 600 millimetres above the floor. She could not perform vigorous pushing or pulling, as in pulling heavily-laden trolleys. Verification of this suspicion about the plaintiff’s current fitness would depend on obtaining an up-to-date MRI scan, and the plaintiff said she was very happy to do so. Associate Professor Brazenor thought the current diagnosis must await this MRI scan. Associate Professor Brazenor thought the plaintiff’s back or left leg injuries had arisen out of or occurred out of work when shown the witness statements. He considered the 31 May 2011 scan most likely showed a recent injury to the left posterior quadrant of the L4-5 disc. Insofar as the plaintiff ruptured a lumbar disc, whenever that occurred, Associate Professor Brazenor thought she could not return to a bending, lifting, pushing and pulling job on a permanent basis.

Firm adjudication on her

consequences would depend on the MRI scan. He believed the plaintiff may have exaggerated the restriction of her low back movements when standing.

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Associate Professor Brazenor reported further having been provided with the recent MRI. He noted that investigation showed multi-level mild lumbar degenerative disc disease; no canal stenosis or nerve-root compression. He confirmed he thought the plaintiff should be fit to return to the work she had done between 2008 and 2011, with the restrictions he had previously described. The Defendant’s lay evidence Mr Lawrence, plant manager with the defendant, made a statement in an interview on 14 June 2011. There is no supporting affidavit in relation to this statement, as Mr Lawrence is now deceased. Mr Lawrence had been long aware of the plaintiff’s capacity for work, and she was doing a small range of her preferred duties and padding them out for the whole day. The plaintiff had taken about six weeks off work earlier in the year, and as far as the defendant was concerned, that was not work related. There was no information to suggest this was time off for a work-related injury. The plaintiff had told the defendant’s onsite physiotherapist, Stuart Taylor Reid, and several supervisors she had a back injury but it was not work related. On 21 April 2011, the plaintiff had an argument with a fellow worker over a chair. The assistant secretary from the union attended onsite on 3 May 2011 and it was explained to both employees a further occurrence could result in disciplinary action. There was a further argument about the same issue on 12 May 2011. Jason Williamson, the site union delegate, and Mr Lawrence, thought they should investigate it given the circumstances, ie both employees losing time off work and putting in WorkCover claims, but the investigation did not occur. After the second argument, the plaintiff asked for help from Mr Williamson to fill out a WorkCover claim. He told Mr Lawrence the plaintiff was thinking of putting in a claim and told him that she had a Certificate of Capacity dated prior to the VCC:DC/LW/AS

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Claim Form being filled out. Mr Lawrence found out later it was dated 1 May 2011. About the same time, Stuart Taylor Reid spoke to the plaintiff. Mr Lawrence believed he pointed out to her that she could lose her preferred privilege duty roster if she put in a claim.

From 18 May 2011, after consultation with Mr

Williamson, Mr Lawrence sat down with both of them. He explained to the plaintiff that he was concerned about the way she viewed her role and duties given the way she had spoken to her co-worker. As a result, he reviewed her list of duties and Certificate of Capacity from her general practitioner, which was dated 2005 and he believed was still valid. Based on all the information, Mr Lawrence suggested to the plaintiff that starting from Monday, he would like her to extend her range of duties and asked her opinion. She told him her doctor wanted her to do kitchen duties. She did not express any desire not to extend her duties. He suggested it would be a gradual progression of duties back into the factory. The plaintiff was upset at the suggestion he had made about the change of her duties. Mr Lawrence noted at that time, she was fit and working, doing her normal duties with no back complaints or obvious problem. On 19 May 2011, she did not attend for work. She rang in and said she had a sore back and subsequently had not been back to work since, except to hand in Certificates of Capacity. Early the following week, the plaintiff attended the site with a partially completed WorkCover form and Certificates for 19 and 20 May 2011 and another for 23 May 2011. A certificate from 1 May 2011 showed the exact duties she had been signed off on in 2005. On 24 May 2011, Mr Lawrence offered to review and reconsider the plaintiff’s duties, and perhaps not expand them and keep her doing kitchen duties. She seemed happy with that and said she would see a doctor to get a clearance. VCC:DC/LW/AS

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JUDGMENT Cvijetovic v Inghams Enterprises Pty Limited

When she asked what to do with the certificates, Mr Lawrence told the plaintiff either not put in a claim and get a medical clearance or put in a claim if she needed a current certificate of capacity with specific acceptable duties. The plaintiff decided to put in a claim and provided WorkCover certificates. On 24 May 2011, Mr Lawrence asked the plaintiff what had happened from 18 May 2011 and she advised she had been experiencing back pain intermittently and had some time off work earlier for which she did not claim anything. The plaintiff said she had hurt her back whilst lifting a milk bladder one Friday. She seemed confused as to when that happened. Vocational evidence Ms Mutimer, vocational consultant from IPAR, prepared a vocational assessment report in October 2015. Based on the plaintiff’s employment history and current skills, she considered the following employment roles would be suitable for the plaintiff – product assembler (light), product quality controller, administration assistant and records and filing clerk. Overview There is a dispute whether the plaintiff suffered a compensable injury at work. The defendant took issue as to whether the incident occurred and what, if any, consequences flowed from it. The plaintiff’s claim for weekly payments was rejected by letter dated 22 June 2011. The matter was later conciliated and the plaintiff paid weekly payments and medical expenses for a limited period. It was submitted on the defendant’s behalf that I could not be satisfied that an incident occurred on the said date, because it was not referred to in the Claim Form, it was not noted by Dr Chan, and it was also not part of the history given by the plaintiff to Dr Yong in the months after the said date.

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JUDGMENT Cvijetovic v Inghams Enterprises Pty Limited

This application, however, was brought on the basis of injury during the course of employment, not on a specific date. The plaintiff, in her affidavits, viva voce evidence and histories to various doctors, described incidents involving her lower back from February 2008 until she finally ceased work in May 2011. The plaintiff’s Claim Form, completed on 23 May 2011, is consistent with a course of employment claim. Whilst not mentioning the specific incident, the plaintiff noted the injury happened over a long time, and that she hurt her back working with the milk dispenser in February 2008.

She had reported

aggravations thereafter, but no one had done anything about it. Counsel for the plaintiff also relied on a number of entries detailing back complaints in Dr Chan’s notes, which were very difficult to read, of a number of complaints in May 2011.37 As I indicated to the parties, I accept that there was more detail in Dr Chan’s clinical notes than he set out in his typed report. Further, counsel for the defendant agreed that Associate Professor Brazenor, having a full history of the plaintiff’s back problems from February 2008 to May 2011, accepted that there was a relationship between the plaintiff’s work duties and her back injury. Whilst there were a number of matters raised by Mr Lawrence in his statement, it seems clear there was a dispute about the nature of the plaintiff’s duties in May 2011 and he was aware she was considering making a compensation claim at that time. Whilst it was not possible to cross-examine Mr Lawrence as to these matters, I accept that the plaintiff ceased work because of her back injury at that time.

37

T44

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Taking all this evidence into account, I am satisfied the plaintiff suffered a compensable injury to her lower back during the course of her employment. Credit As Maxwell P said in Haden Engineering Pty Ltd v McKinnon: 38 “… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

It was submitted the plaintiff was a straightforward witness whose evidence should be broadly accepted. She was not challenged about her pain and other consequences, only about bingo and her driving. It was submitted that the plaintiff has discharged the burden and that she is now unable to work. I found the plaintiff to be a truthful witness. There was no surveillance film showing any level of activity inconsistent with her described pain and restriction. Save for Associate Professor Brazenor’s comment that the plaintiff may have exaggerated the level of lumbar restriction on standing, no doctor commented that there were any inconsistencies or embellishment on examination. Mr Hooper did not believe the plaintiff was exaggerating her symptoms. I am satisfied the plaintiff’s back condition has a substantial organic basis. There is no suggestion of the presence of non-organic factors in the plaintiff’s current presentation. Pain As Maxwell P said in Haden Engineering,39 assessment of a plaintiff’s pain experience will, inter alia, take into account what the plaintiff says both to the court and to doctors. The plaintiff has complained of continuing lower back pain since ceasing work, and for some time before. Her pain is in the lower part of her back, radiating into both buttocks and, at times, her legs.

38 39

(2010) 31 VR 1 at paragraph [12] (supra) at paragraph 11

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The plaintiff had physiotherapy both before and after leaving the defendant’s employ, but she ceased this treatment as it aggravated her condition. She has also been given injections in her back by Dr Chan. As liability was denied for the plaintiff’s claim, there has been no referral to any specialist practitioner. The plaintiff has only been seen by specialist practitioners of a medico-legal nature. Work It was submitted by counsel for the defendant that the plaintiff’s left shoulder injury and elbow condition significantly impacted on her work capacity and that she still has problems with her left upper limb as Mr Hooper noted on examination in 2014.40 There is no dispute the plaintiff was on light duties in relation to her left shoulder and arm condition from 2005 onwards.41 From 2009, those duties were varied, with the plaintiff not doing factory duties and only cleaning and administration duties.42 Whilst the plaintiff’s duties were restricted as described, she was able to work full time without any need for time off work or the requirement for ongoing medication or treatment. I am satisfied that as a result of her back condition, the plaintiff’s capacity for employment is significantly diminished, to the point where she no longer has a capacity for suitable employment. Mr Hooper accepted the plaintiff had to cease work because of back spasms. My view in this regard is supported by the plaintiff’s general practitioner, Dr Chan, and medico-legal examiners, orthopaedic surgeons, Mr O’Brien and Mr

40 41 42

T38 DCB 61 T37

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Hooper. A close examination of Associate Professor Brazenor’s opinion suggests he effectively shares this view. I am satisfied that this interference with work due to back pain and resultant restrictions is a serious consequence for the plaintiff. Loss of earning capacity Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that: (a)

at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)

after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between: (i)

“without injury” earnings; and

(ii)

“after injury” earnings.

The former must be calculated by reference to the six-year period specified in s134AB(38)(f). “Without injury” earnings consist of 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 had the injury not occurred. It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity. The plaintiff carries the onus of proof in relation to economic loss and

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particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. I am therefore required to determine a “without injury” earnings figure. See Barwon Spinners Pty Ltd & Ors v Podolak.43 There were no submissions as to “without injury” earnings, but on the material available, it appears the appropriate figure would be in the range of $30,000 per annum. Whilst Associate Professor Brazenor suggested the plaintiff had a capacity for light work and the ability to return to her former duties, he placed significant restrictions on her duties, in fact prohibiting her from performing the range of duties that caused her back injury. While Associate Professor Brazenor thought the plaintiff could return to her old job, he would caution her to wear a back brace or seek a job that did not involve recurrent bending at the waist, pulling a trolley up a step or accessing levels – duties of the type that caused her back injury. Accordingly, Associate Professor Brazenor was not saying the plaintiff could return to her post-shoulder injury “light duties.” Vocationally, Suzanne George shared the view of Mr O’Brien, Mr Hooper and Dr Chan, that the plaintiff did not have a capacity for suitable employment. In light of her ongoing back pain and restricted movement, I do not consider the plaintiff would be a reliable employee. Some days her back pain is such that she cannot get up and leave the house. Such occurrences are unpredictable. On this basis, her ability to attend work on a regular, sustained basis is significantly compromised.

43

(supra) at paragraph [70]

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JUDGMENT Cvijetovic v Inghams Enterprises Pty Limited

The plaintiff was not cross-examined as to any of the matters or suggested roles in the IPAR vocational assessments, which, in any event, Ms George thought were unsuitable for the plaintiff. It was not suggested to the plaintiff that she had the capacity to go back to her old job or any other job of a light nature. I accept that the plaintiff is fearful of re-injuring her back if she attempts a return to work. It is now nearly five years since she last worked and there has been no improvement in her condition. There is no suggestion by any medical practitioner that improvement may occur. In these circumstances, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of 40 per cent. I am also required to consider issues of retraining and rehabilitation pursuant to ss(g). In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd44 and Advanced Wire & Cable Pty Ltd v Abdulle.45

44 45

[2009] VSC 454 paragraph [147] [2009] VSCA 170

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Taking into account all the evidence, I am satisfied the plaintiff has a serious injury, and accordingly, I grant leave to bring proceedings for both pain and suffering and loss of earning capacity. ---

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