IN THE COUNTY COURT OF VICTORIA
Revised
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-01113
STELLA TUTUIAN
Plaintiff
v
GTS INDUSTRIES PTY LTD
Defendant
---
JUDGE:
HIS HONOUR JUDGE O'NEILL
WHERE HELD:
Melbourne
DATE OF HEARING:
30 & 31 March and 1 April 2009
DATE OF JUDGMENT:
17 April 2009
CASE MAY BE CITED AS:
Tutuian v GTS Industries Pty Ltd
MEDIUM NEUTRAL CITATION:
[2016] VCC
REASONS FOR JUDGMENT
--Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB
Accident Compensation Act 1985 – lower spinal injury – whether consequences meet the
“very considerable” test.
---
APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr R W McGarvie SC with
Mr G K Coldwell
Holding Redlich
For the Defendant
Mr B G Anderson
Hall & Wilcox
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
!Und efined Boo km ar k, I
HIS HONOUR:
Preliminary
1
The plaintiff suffered injury to her lower spine in the course of her employment
with the defendant on or about 20 November 2000 while carrying heavy
baskets containing metal parts.
2
She remained working on full-time duties, although for a period undertaking
lighter work, until she developed pain in her neck radiating to the left arm. Her
duties were changed in September 2001. She further developed carpal tunnel
syndrome in both wrists and her hours were reduced in February 2003 to 6
hours per day. She was retrenched in May 2004 and has not worked from
that time to the present.
Generally, she has undergone conservative
treatment. There is an issue as to the nature and extent of a disc injury at the
L4-5 disc and whether there is any nerve root compression at that level.
3
This is an application for leave to bring proceedings pursuant to
s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury
suffered in the course of employment on or about 20 November 2000.
4
Mr McGarvie, on behalf of the plaintiff, identified the body function said to be
lost or impaired as that of the lower spine.
5
The application is thus brought under subsection (a) of the definition of
“serious injury” contained in s.134AB (37) of the Act and leave is sought in
respect of both pain and suffering and loss of earning capacity.
6
In order to succeed, the plaintiff must prove, the onus being upon her, that the
consequences emanating from the loss or impairment of the body function of
the spine are at least “very considerable” and more than “significant” or
“marked”.
7
VCC:AS
I must consider the consequences to this particular plaintiff, viewed
1
JUDGMENT
Tutuian v GTS Industries Pty Ltd
objectively, arising from the injury.
I must also compare the impairment
arising from injury in this application with other cases in the range of possible
impairments or losses of the body function of the spine.
8
Further, in order to be satisfied that the plaintiff has suffered a loss of earning
capacity,
she
must
prove,
as prescribed
by s.134AB(38)(e)(i)
and
s.134AB(38)(f), that, as a result of injury, she has suffered a loss of earning
capacity of 40 per cent or more when a comparison is made between her
without injury earnings in the three year period before and after injury as best
reflects her earning capacity, with her earning capacity at the present time
from suitable employment.
9
Following Ashley JA’s decision in Grech,1 the proper analysis to determine
whether a plaintiff ought be granted leave is:
(a)
to establish the plaintiff suffered compensable injury after October
1999, noting injury includes aggravation, acceleration, exacerbation or
deterioration of previous injury or disease;
(b)
to sufficiently establish what that injury was;
(c)
to determine the consequences the plaintiff alleges have resulted and
that those consequences were “materially contributed to” by the
compensable injury; and
(d)
to
determine
whether
those
consequences
attain
the
“very
considerable” level both as to pain and suffering and economic loss as
the legislation requires.
10
The plaintiff and Mr Schofield, orthopaedic surgeon, were called to give
evidence and be cross-examined. In addition, medical reports, radiological
studies, vocational assessments and other material was tendered into
evidence. I have read all the tendered material.
1
Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172
VCC:AS
2
JUDGMENT
Tutuian v GTS Industries Pty Ltd
11
On behalf of the defendant, Mr Anderson outlined the position of his client in
response to the application as follows:

He acknowledged that the plaintiff had suffered a soft tissue injury on or
about the date alleged but stated that that injury no longer gave rise to any
physical impairment.

If there were physical consequences of the injury, they did not achieve the
“very considerable” level.

There was a disentangling exercise both in respect of psychological
consequences which were said to emanate from the injury, and in relation
to physical conditions in the plaintiff’s neck, left arm and carpal tunnel
syndrome.
Relevant Background
12
The plaintiff is now fifty-five years of age. She is married with three adult
sons. She was born in Romania and received a good education, completing a
Certificate in Forestry. She also worked in administrative employment with
the government. She migrated to Australia in 1989 and did a short English
course to improve her language skills.
13
The plaintiff gave her evidence through an interpreter and although she does
have some understanding of English, it is only modest.
On arriving in
Australia, she worked for a short period as a process worker and then for a
year as a nursery hand. In 1993, she commenced work with the defendant as
a machine and press operator.
14
The defendant makes metal parts for various products, including heating
units, and for the motor vehicle industry, and her duties included working on
large press machines, and lifting and moving parts produced by those
machines. At one particular machine, she was required to put metal parts into
a basket and move that basket onto a nearby pallet. Such baskets weighed in
VCC:AS
3
JUDGMENT
Tutuian v GTS Industries Pty Ltd
the order of 18 kilograms and she was required to lift many of these during the
course of a normal shift.
15
Prior to November 2000, the plaintiff was in good health and had no significant
illnesses nor injuries, in particular to her lower spine.
16
While she did not undertake any particular hobbies, sporting or like activities,
in her affidavit2 she said she was particularly house proud and undertook all
the domestic and household duties for her family. In particular she enjoyed
gardening.3 She would shop for her family, often for a whole day, and had no
difficulty walking for a considerable period.
She enjoyed an intimate
relationship with her husband.4
17
She stated that she enjoyed her work, particularly because there were a
number of other Romanian people working at the factory.
The Incident and its Consequences
18
The plaintiff suffered injury to her lower back in the course of her employment
on or about 20 November 2000.
At that time she was lifting a basket
containing metal parts which she had been doing repetitively over the course
of the day when she experienced pain in her lower back, together with pain
down her left leg. She attended her then general practitioner, Dr Jigau, who
prescribed anti-inflammatory medication, and arranged an x-ray. She had no
time away from work, and in fact remained in employment until May 2004.
For the first two months after the incident, she was restricted to lighter duties,
but then returned to her full-time duties until September 2001, although she
said in evidence that she was “pushed” to do the work by her employer. 5
19
The plaintiff maintained these normal duties until September 2001. Earlier in
2001, she commenced to experience pain, numbness and tingling into her left
2
3
4
5
VCC:AS
Plaintiff’s Court Book (“PCB”) 26
PCB 26
See the plaintiff’s husband’s affidavit at PCB 37
Transcript (“T”) 25.4
4
JUDGMENT
Tutuian v GTS Industries Pty Ltd
arm.6 The plaintiff7 agreed that because of this left arm pain, she worked
modified duties, six hours per day, until February 2003. However, in histories
given to doctors at the relevant time, it would appear that while the plaintiff
worked upon modified duties from September 2001 until February 2003, her
hours were not reduced to six hours per day until that later time.8
20
In re-examination, the plaintiff said9 that she came under the care of her
current general practitioner, Dr Goldman, in August 2001, and in September
2001, that doctor provided a WorkCover Certificate of Capacity 10 which
showed the modified duties the plaintiff was to undertake, and described the
injury from which the plaintiff was then suffering as “low-back and left buttock
pain with pain in left arm and shoulder”. Throughout this period, the plaintiff
continued to complain not only of pain in the left arm and shoulder, but also
pain in her low-back radiating down the left leg. The plaintiff did not lodge a
WorkCover claim until September 2001. She stated that she had not put a
WorkCover claim in earlier, around the time she first suffered injury to her
lower spine, as she was concerned not to jeopardise her employment.
However, it is noted that she had no time off work, and very little in the way of
treatment.
21
When first seen by Dr Goldman in August 2001, he ordered a CT scan of the
lumbar spine which showed:
“Mild left posterior lateral annular bulging of the L5/S1 intervertebral disc.”
22
Dr Goldman further referred the plaintiff for physiotherapy treatment from
October to December 2001.
23
The plaintiff remained on full-time duties until February 2003.
She was
referred by Dr Goldman to Cedar Court Rehabilitation Hospital in early 2002
6
7
8
9
10
VCC:AS
T 26
T 26.13
See reports of Dr Wallin – Defendant’s Court Book (“DCB”) 43, and Dr Stark – DCB 67
T 48
Exhibit B
5
JUDGMENT
Tutuian v GTS Industries Pty Ltd
and was treated there by Dr Mithu Palit, rehabilitation specialist. Although I
have no report from that hospital, it would appear the plaintiff undertook a
restoration program and attended there two to three times a week over
approximately two months.11 In the course of Dr Goldman’s treatment, the
plaintiff was prescribed Voltaren and Vioxx, although she claims12 these
caused stomach problems and she changed to Panamax, an “over the
counter” pain-relieving medication which she has continued to the present
time.
24
In February 2003, the plaintiff’s hours were reduced to six hours a day upon
the recommendation of Dr Goldman.13 This arose as a result of increased
pain to her neck and left arm.14 When her hours were reduced, the plaintiff
worked on a mixture of automatic and manual process machines 15 which
required the rapid use of both arms. She complained to Dr Goldman of pain
in the wrists, who sent her for nerve conduction studies.16 These revealed
nerve root compression in the carpal tunnel bilaterally. 17
She continued
working six hours per day, five days per week until May 2004. Over this
period, that is from February 2003 until May 2004, according to the report of
Dr Goldman18 her major complaint was neck, left arm and carpal tunnel,
although I accept she continued to suffer pain in her lower back, and referred
pain to the left leg.19
25
In May 2004, the plaintiff was retrenched as it was alleged she had been
asleep while working on a machine.
She disputed the reason for her
retrenchment and undertook proceedings, claiming unfair dismissal. In crossexamination,20 she said that if she had not been retrenched then she would
11
12
13
14
15
16
17
18
19
20
VCC:AS
PCB 40, PCB 51
PCB 27
PCB 44
T 26.27
T 27.6
PCB 44
PCB 49
PCB 44-45
PCB 46-47
T 28.13
6
JUDGMENT
Tutuian v GTS Industries Pty Ltd
have kept working. At the time of her retrenchment, the plaintiff was working
twenty nine hours per week with a five minute break every hour because of
her various conditions. She said she was the only employee at the factory
working these hours.21 A further Certificate of Capacity signed by Dr Goldman
was tendered into evidence.22
This classifies the plaintiff as being fit for
modified duties for the period from 8 May 2004 to 5 June 2004 as a result of
“disc prolapse”. In re-examination,23 the plaintiff claimed that her hours were
reduced, at least in part, because of her back pain, and her work over that
period led to an increase in her back symptoms.
26
At the present time, the plaintiff claims her worst pain is in her back.24 She
claims the pain is constant and that she has pain in the neck and left arm as
well. She continues to have numbness and tingling in both hands, as a result
of which, from time to time she wears supports on the arms.
She has
remained under the care of Dr Goldman to the present time. She has not
been referred to any specialist for treatment in respect of her back injury, in
particular no orthopaedic surgeon, neurosurgeon or the like, save for her
period at Cedar Court in 2002. As stated, she takes Panamax tablets for pain,
usually about four tablets per day, although on occasions has taken up to
eight tablets. She applies Voltaren cream to her back, left leg and arms and
sees a physiotherapist at the present time, Mr Mark Eibl, each week.
27
The plaintiff has not worked since May 2004, although in April 2008, she
completed a short course to qualify her as a pharmacy assistant. In the last
twelve months or so she has applied for approximately twelve positions as a
pharmacy assistant but has only obtained one interview, arranged through a
mutual friend.
28
21
22
23
24
VCC:AS
She has assisted her husband in the running of his trucking business from
T 49
Exhibit B
T 49-50
T 28.25
7
JUDGMENT
Tutuian v GTS Industries Pty Ltd
time to time. This involves occasional answering of phones, collecting faxes
and minor administrative duties. Having heard the plaintiff describe these
duties, I accept her involvement in this business is minor only. According to
her taxation returns,25 in more recent years she has earned a greater income
as a distribution from the trucking business in respect of which she is a
partner with her husband, than she earned before injury.
However, I am
satisfied that this is as a result of income distribution for taxation purposes
rather than any true reflection of the hours spent and involvement in the
business.
29
At the present time, the plaintiff complains of constant pain in her neck, back
and arms. The pain in her back is the worst. She also describes pain in her
left leg, down the outer aspect of the leg to the foot.26 The plaintiff said27 that
she still does the shopping, sometimes with her husband, and sometimes
alone. She attempts gardening, but is unable to do the heavier tasks, such as
digging and bending.
30
It was put to the plaintiff in cross-examination by Mr Anderson28 that in May
2005, the plaintiff told Job Fast, vocational assessors, that she assessed her
own capacity for employment at thirty hours per week. The plaintiff could not
recall stating this29 but did accept30 that she could work fifteen to twenty hours
per week.
31
In her affidavits in support of the application, the plaintiff confirmed she was
able to drive, but not for long distances. Her back pain was exacerbated by
activity and when the weather turned cold.31 She was not able to walk nor
shop in the manner which she had previously undertaken, and her back
25
26
27
28
29
30
31
VCC:AS
Exhibit 3
T 31
T 35
T 45
T 46
T 45.21
PCB 27
8
JUDGMENT
Tutuian v GTS Industries Pty Ltd
problem made sleep difficult.32 She said cooking aggravated her back and leg
pain, and carrying even 4 kilograms caused problems.33 She said her intimate
physical relationship with her husband had been severely affected.
The Plaintiff’s Credibility
32
Mr Anderson contended I ought have reservations about the plaintiff’s
credibility on two bases. Firstly, video film of the plaintiff was shown which
had been taken in January 2009.
This showed the plaintiff walking in a
shopping centre, going to an automatic teller machine and moving in a
relatively unrestricted manner.
She was seen then to push a loaded
supermarket trolley into a car park and unload quite a number of plastic bags
into the boot of her car. It would seem some of the bags were light, although
the video film would show some contained large drink bottles. The plaintiff
was then seen to get into the front driver’s side seat of the car in a somewhat
restricted manner.
When cross-examined about this episode, the plaintiff
admitted that she could lift up to 5 kilograms and that at the time she was
wearing shoes with raised heels. She suggested that she was recommended
these shoes by a doctor because of a problem with a bone in her heel.
33
In relation to the surveillance film, while unloading the shopping, the plaintiff
appeared to move in a pain-free manner. There were a large number of bags
in the trolley, and the plaintiff appeared to me to move in a manner somewhat
inconsistent with a person describing constant lower back pain with referred
pain into the leg. I did notice, however, that the plaintiff entered the driver’s
seat of the vehicle carefully, reflecting a restriction in her back. All in all, I did
not think that the video film significantly affected the plaintiff’s credibility. It
may be that in short periods, the plaintiff is able to undertake heavier tasks,
such as lifting bags of shopping, but that on other occasions is restricted.
34
32
33
VCC:AS
The second aspect of the plaintiff’s credibility criticised by Mr Anderson is a
PCB 27-28
PCB 31
9
JUDGMENT
Tutuian v GTS Industries Pty Ltd
claim that she wore high-heels on medical advice because of a problem with
her heel. Her evidence in this regard was difficult to follow and at the end of
the day I concluded, while somewhat unusual, I did not think this had any
particular aspect on the plaintiff’s believability.
Medical Opinions
35
In various reports tendered on behalf of the plaintiff, the general practitioner,
Dr Goldman,34 set forth his treatment of the plaintiff over the years.
He
concluded35 the plaintiff was suffering an L5-S1 disc bulge with referred pain
to the legs, as well as bilateral carpal tunnel syndrome. He also considered
the plaintiff also suffered “regional pain syndrome arms and neck”. In his final
report of 5 February 2009,36 Dr Goldman noted that despite attempts, the
plaintiff had been unable to find employment since being retrenched in May
2004. He thought that theoretically she could work with the same restrictions
that she was doing when she lost her job. He noted that she was still troubled
by back pain which radiated into the legs, together with pain in her neck and
down the arms. She would not be able to start a new job given these various
restrictions and would be unable to sit or stand even for short periods. He
said she had pain on bending, lifting and moving her arms and would be
unable to lift any sort of weights.
36
Dr Cole, psychiatrist, examined the plaintiff in June 2006. He concluded the
plaintiff was suffering a chronic adjustment disorder with mixed anxiety and
depressed mood of mild to moderate degree. He suspected there was an
element of functional overlay in the presentation, particularly in respect of the
plaintiff’s hands, but I am of the view that this part of his opinion is outside his
specialty.
37
34
35
36
VCC:AS
Dr Owen White, neurologist, examined the plaintiff in August 2006 and
PCB 39-47b
PCB 47b
PCB 47a
10
JUDGMENT
Tutuian v GTS Industries Pty Ltd
referred to the CT scan of the lumbar spine taken in September 2001. He
reviewed the films and noted that the films demonstrated a significant leftsided lateral protrusion encroaching upon the L5-S1 neural foramen.37 He
thought that there was a disc prolapse which could be responsible for some
degree of sciatica.
It was reasonable to say38 that the plaintiff had an
underlying degenerative disease made symptomatic as a result of the work
injury. The plaintiff should not continue in heavy or repetitive work as a result.
The plaintiff, he said, would certainly be restricted in lifting more than 5
kilograms.39
38
Dr Harkness, rheumatologist, examined the plaintiff in September 2006.40
The plaintiff was restricted in spinal movements and he found it difficult to get
a true indication of what the plaintiff could really do. Straight leg raising was
90 degrees to each side. He said she had suffered a lumbosacral disc injury
which had caused sciatica from time to time and he noted a carpal tunnel
syndrome in both hands.
39
The plaintiff was examined by Mr Khan, orthopaedic surgeon, in July 2006. 41
He did not detect any evidence of muscle wasting, nor neurological deficit. 42
The CT scan of September 2001 revealed a posterolateral disc prolapse at
L5-S1 which encroached upon the intervertebral foramina. He thought this
caused referred pain down her left leg43 although there was no radiculopathy
nor muscle wasting.
The plaintiff, he said, was fit for alternative duties
providing she avoided bending, twisting, turning, lifting heavy weights and
repetitive use of her hands.44
40
37
38
39
40
41
42
43
44
VCC:AS
The plaintiff was examined by Mr Schofield, orthopaedic surgeon, on one
PCB 67
PCB 69
PCB 70
PCB 71-72
PCB 73-80
PCB 77
PCB 78
PCB 79
11
JUDGMENT
Tutuian v GTS Industries Pty Ltd
occasion in August 2008. I had the advantage of hearing Mr Schofield in
evidence. Upon examination, he noted there was minor weakness of eversion
and inversion of the left foot. Having examined the CT scan of September
2001, and earlier plain x-rays, he noted that the lumbosacral disc was
sacrilised and that the pathology, although referred to on the CT scan as
being L5-S1, was in fact L4-5. Nothing turns on this issue, and I am satisfied
that the pathology referred to is to the plaintiff’s L4-5 lumbar disc.
Mr
Schofield arranged further x-rays taken of the plaintiff in the erect position.45
He noted there was narrowing at the L4-5 disc space on these x-rays and at
the posterior margin, the disc was extremely narrow in erect extension, and
opened upon erect flexion. In evidence, he explained that in the erect position
there was a greater loading on the spine. While x-rays do not show the discs,
the fact that there was this narrowing indicated the disc would not fit within the
confines of the disc space, and was likely to be protruding.
After this
examination, he concluded the plaintiff had suffered an injury to her lumbar
spine in the nature of a lumbar disc prolapse as a result of heavy work over a
number of years. He thought that there was evidence of radiculopathy upon
clinical examination. He said the plaintiff was fit for alternative duties of a light
nature providing she avoided repetitive lifting of more than 5 kilograms and
had regular rest breaks. Although he did not examine the plaintiff again, his
opinion was sought as an MRI scan which he had recommended and was
undertaken on 6 February 2009. This scan reported46 minor disc bulge at L45 with no spinal stenosis nor narrowing of the exit foramina. Notwithstanding
this finding, he remained of the view that the plaintiff had nerve root
compression at the lower lumber disc as a result of clinical examination.47
The reason, he postulated, that the MRI scan, and the earlier CT scan, did not
reveal such compression was that the scans were taken with the plaintiff in
the supine position and without weight bearing on the spine. He thought the
45
46
47
VCC:AS
PCB 83
PCB 85c
PCB 85d
12
JUDGMENT
Tutuian v GTS Industries Pty Ltd
MRI scan was therefore not a true reflection of the plaintiff’s degree of
disability.
He disagreed with reports of the defendant’s consultant
practitioners that there were non-organic factors affecting the plaintiff’s
presentation. He found no overreaction upon examination. There was he
said, on clinical examination, 2 centimetres of wasting on the left calf which
was an objective finding, in addition to the weakness in inversion/eversion
which confirmed in his mind the evidence of compression.
41
Mr Schofield was cross-examined extensively and despite it being put to him
that other practitioners had not found evidence confirming nerve root
compression, he maintained his view that this was as a result of the failure
upon radiological investigations to be taken in weight-bearing circumstances.
42
The plaintiff was examined by Dr Robyn Horsley in November 2008. 48 Dr
Horsley is a specialist in occupational and rehabilitation medicine. She found
a difference in calf circumference, the same as Mr Schofield.49 The plaintiff
was suffering, she concluded, with mechanical back pain and symptoms
suggestive of radicular pain to the left leg, confirmed by reduction in muscle
bulk of the left calf. She noted the CT scan of September 2001 suggested left
disc prolapse.
It was appropriate for the plaintiff to be retrained as a
pharmacy assistant although Dr Horsley thought her lack of experience in the
area would be a barrier, together with her physical restrictions. She set forth a
range of restrictions which would apply to any form of employment. 50 The
plaintiff’s capacity for work would be restricted to twenty hours per week,
working three to four hours per day, five days per week. She stated:
“I believe that her prognosis for successfully re-entering the workforce is
poor, despite her efforts. I believe that her capacity for work lies in parttime hours spread over a five day period within the restrictions as
outlined above. I do not believe that she is likely to be able to return to
full-time hours.”
43
48
49
50
VCC:AS
Finally, on behalf of the plaintiff, a vocational assessment of Ms Leonie Green,
PCB 86-93
PCB 90
PCB 92
13
JUDGMENT
Tutuian v GTS Industries Pty Ltd
employment rehabilitation consultant, was tendered into evidence.51
Ms
Green noted that the plaintiff had experience only in low-level, repetitive
factory work. Although she had a good level of education in her own country,
as well as some clerical experience, her past work experience meant that she
had prospects only in the manufacturing sector. Because of the plaintiff’s
work history, Ms Green said that the plaintiff had a strong work ethic. As a
result of her various physical injuries, including back, leg, left arm and carpal
tunnel, Ms Green considered the plaintiff not competitive in the labour market
for jobs for which she was qualified by reason of her age, experience and
physical restrictions. It was likely the plaintiff would only find work through
private networks.
44
On behalf of the defendant, the plaintiff was examined by a range of
specialists. Mr Anderson tendered a further CT scan of the lumbosacral spine
of 22 May 2008 taken upon the referral of Dr Goldman.52
This was an
unremarkable study, which showed no disc protrusion, central canal nor
neural exit stenosis.
45
Dr Poppenbeek, who appears to be a general practitioner by qualification,
examined the plaintiff in October 2001 and June 2004. He also visited the
workplace in November 2001.53 Examination, he said, was relatively normal
save for restriction in movement of the lumbar spine in June 2004. There
were no neurological signs, nor muscle wasting.
The plaintiff suffered
constitutional lumbar spine degenerative disease which had been aggravated
in 2000. He thought that the work-related aggravation had settled and that the
ongoing intermittent symptoms were related to the underlying cause.
He
found it difficult to assess the plaintiff’s work capacity because of the alleged
limited range of movement.
46
51
52
53
VCC:AS
Dr Chris Baker, occupational specialist, examined the plaintiff in April 2002,
PCB 55-62
DCB 1a
DCB 2-14
14
JUDGMENT
Tutuian v GTS Industries Pty Ltd
and visited the workplace.54
He said there was no definite evidence of
compression of the existing L5 nerve root either upon physical examination, or
inspection of the x-rays of 2000 or CT scan of 2001. He said the plaintiff had
pre-existing degenerative disease in the back which was aggravated in
November 2000.
He found no evidence of functional factors, nor
exaggeration nor abnormal illness behaviour. He thought the plaintiff capable
of undertaking suitable employment with restrictions of lifting more than 10
kilograms.
Dr Baker’s opinion is now somewhat dated and of limited
assistance.
47
The plaintiff was examined by Dr Wallin, occupational and rehabilitation
specialist, in November 2002, April 2003, December 2003 and he, in addition,
visited the workplace on a number of occasions. He noted the bulge in the
lower lumbar disc on the CT scan of September 2001. He accepted the view
of the Medical Panel that the plaintiff had suffered an L5-S1 disc prolapse with
referred pain to the left leg but without confirmed radiculopathy. He thought
the plaintiff was fit for restricted employment providing the work did not involve
lifting above 5 kilograms with provision for posture changes and rotation.55 He
examined the plaintiff in April 200356 and noted the reduction in her working
hours in February of that year was related to pain in her neck, head,
headaches and dizziness.
In that same examination he noted that the
plaintiff’s clinical signs in her low-back were relatively minor and without
neurological signs to support the presence of radiculopathy. He thought that
her back condition had improved. Dr Wallin considered that heavy physical
duties were beyond the plaintiff given the degenerative state of her back. In
May 2003,57 he was of the view that the plaintiff was able to work six hours
per day on the restricted duties she was then undertaking on the automatic
and semi-automatic press machines. By that time, Dr Wallin concluded that
54
55
56
57
VCC:AS
DCB 20-27
DCB 37
DCB 43
DCB 51
15
JUDGMENT
Tutuian v GTS Industries Pty Ltd
any work-related aggravation of her lower back condition had in fact resolved
and that the ongoing symptoms were due to the natural degenerative process.
He did not consider the reduction in the work hours as being related to
compensable injury.58 Dr Wallin’s last examination was December 2003.
48
The plaintiff was seen on one occasion by Dr Richard Stark, neurologist, 59 in
February 2003.
Upon examination he noted “bilateral feeble collapsing
weakness involving the left side more than the right”.
He could find no
evidence of organically-based weakness in the arms or the legs. He thought
the plaintiff may have suffered a disc injury in November 2000 but there was
no clinical evidence of radiculopathy. He thought that functional features had
affected the presentation, particularly the collapsing weakness involving all
limbs, and he was not convinced that employment was a contributing factor.
While he accepted the plaintiff was not capable of pre-injury employment, he
thought she was capable of suitable employment.
49
Mr Jones, orthopaedic surgeon, examined the plaintiff on one occasion in
June 2006.60 He could find no abnormal neurological signs upon examination.
He noted the bulging at the lower disc in the September 2001 CT scan. He
considered the plaintiff had suffered a lumbar disc injury causing low
backache and left-sided sciatic pain. He considered that the injury caused
minor restriction only in relation to movement of the back. The plaintiff did
have the capacity for work involving light duties of the sort she was
undertaking in 2004, and there was nothing to indicate that that capacity had
declined up to the time of his report.
50
Dr Fraser, rheumatologist, saw the plaintiff in June 2006 and again in June
2008. He provided a number of reports.61 He noted a significant overreaction
to physical examination and was not convinced that there was work-related
58
59
60
61
VCC:AS
See further DCB 66
DCB 67-69
DCB 70-72
DCB 73-82
16
JUDGMENT
Tutuian v GTS Industries Pty Ltd
injury. While accepted there may be some degenerative changes in the lower
spine, he did not think there was any disc prolapse at the lower lumbar level.
He considered the plaintiff was suffering a regional pain syndrome.
He
reviewed the CT scans of the lower spine of September 2001 and May 2008.
He said the latter was a normal scan and the former showed a mild left-sided
bulge at the lower disc without nerve root involvement. He considered that if
there had been injury to the lower spine, it had long since resolved, as
supported by the more recent CT scan. He disagreed with the views of Mr
Schofield and in particular said that upon his examination there were not the
neurological abnormalities as found, particularly the deep tendon reflexes
were equal and there was no sensory deficit. He did not observe any muscle
wasting although he did not measure the calf. He concluded the changes
shown on radiology in the earlier scans were age rather than injury-related.
When apprised of the report of Dr Varma and the MRI scan of March 2009, he
noted that that reflected only mild facet joint degeneration at L5-S1 with
moderate desiccation and no protrusion.
51
The plaintiff was examined by Mr Murray Stapleton, hand surgeon, in June
2006 and February 2007. His examinations related to the plaintiff’s carpal
tunnel syndrome and therefore are not of particular relevance. He noted the
carpal tunnel was age rather than work-related.
52
The plaintiff was examined by Mr Schutz, surgeon, in January 2007.
He
found no indication of nerve root irritation and inconsistency on straight leg
elevation.
There was no wasting in the thighs nor calves.
The plaintiff
complained to him of global weakness over the whole of the left leg in a nonorganic distribution. He considered there may have been an L5-S1 disc bulge
but no radiculopathy. He thought there were non-organic symptoms which he
thought were related to voluntary exaggeration.
53
62
VCC:AS
Two opinions of Medical Panels were tendered into evidence.62
The first
DCB 15, DCB 107
17
JUDGMENT
Tutuian v GTS Industries Pty Ltd
opinion of 14 April 2002 noted the plaintiff was suffering an L5-S1 disc
prolapse with referred pain to the left leg without radiculopathy, which
condition was materially contributed to by the claimed back injury.
In the
second opinion of 22 October 2007, that Panel found a 5 per cent whole
person impairment. That latter opinion is of little significance. Without the
reasons and knowledge of the materials presented to the Panel, the opinion is
not particularly helpful. Nonetheless I bear it in mind when considering all of
the medical evidence.
54
Dr Varma, radiologist, provided two opinions of the various radiology, of
January and March 2009.63
The plain x-rays of December 2000 showed
normal disc heights and disc spaces.
The CT scan of September 2001
showed a shallow disc bulge at L5-S1 with the spinal canal and neural
foramina within normal limits. The CT scan of 22 May 2008 he said again
showed the L5-S1 shallow disc bulge unchanged since the previous
examination. Dr Varma noted that such changes were not uncommon in the
general population in the 40’s and 50’s age group. Given the nature of the
duties which the plaintiff was said to be undertaking at the time of injury, Dr
Varma considered that work was a significant contributing factor to the
development of the disc pathology at L5-S1. In his report of March 2009, he
was provided with the MRI of the lumbar spine taken on 6 February 2009.
This showed no disc protrusion at L5-S1.
Rather curiously Dr Varma
concluded that the disc pathology at L5-S1 had not changed since the CT
examination of May 2008, referred to in his earlier report. When asked to
comment about the opinion of Mr Schofield as to axial loading and radiology,
he said some studies had indicated that in the erect position there was some
aggravation of underlying disc pathology due to axial loading and that
herniations and disc protrusions could be more prominent. He did not have
experience with erect MRI scans which were, in this country, performed in the
supine position.
63
VCC:AS
DCB 113-115c
18
JUDGMENT
Tutuian v GTS Industries Pty Ltd
55
Finally, the plaintiff was examined by Mr Michael Dooley, orthopaedic
surgeon, in February 2009. He noted also claims by the plaintiff of collapsing
in the lower limbs. He said there was reduced left ankle jerk but no evidence
of muscle wasting in the left leg. He concluded, having seen the radiology,
that the plaintiff had naturally occurring age-related degenerative disease in
the lumbar spine aggravated by her employment.
He said there were
inconsistent signs upon physical examination without neurological deficit. He
considered the plaintiff had developed a chronic pain syndrome which was a
psychological reaction to the injury. He said the plaintiff was unfit for heavy
physical work, but with an appropriate exercise program, she could return to
general activity and carry out full-time light physical work or clerical duties.
When subsequently provided with the opinion of Dr Varma, and the MRI of
February 2009, he said his opinion was not altered. He disagreed with the
opinion of Mr Schofield that if the plaintiff underwent erect MRI scanning this
would reveal pathology consistent with complaints.
56
In terms of vocational reports, a report of Donnelly Ayres of 29 June 2006 was
tendered into evidence.64 That report noted that there would be difficulty in
transferring employment skills which the plaintiff had gained into new
employment given she had only worked in the manufacturing industry. The
report noted the plaintiff’s English skills would be a further hurdle. It was
suggested the plaintiff had the capacity to work as an operator of an automatic
machine within a light duties work program, work in product examining or
quality control, or as a car park attendant. Details of these various forms of
employment were provided.65
57
Various reports of Job Fast, vocational assessors, were also tendered into
evidence.66 Based upon medical evidence, it was suggested the plaintiff had
the capacity to work as a general machine operator, plant propagator or
64
65
66
VCC:AS
DCB 125-138
DCB 134-136
DCB 143a-dd
19
JUDGMENT
Tutuian v GTS Industries Pty Ltd
assembly worker. Details of those jobs were provided.67 As earlier stated,
there is a record68 of the plaintiff indicating she believed she had a work
capacity of 30 hours per week.
58
Comparable wage figures for the year ended 30 June 2004 were tendered.69
This indicated gross earnings for that year of a comparable worker of
$26,897.00. Further, wages of a pharmacy assistant at the present time were
tendered70 indicating gross weekly earnings of $575.00.
Conclusions as to the Various Medical Opinions
59
The views of the defendant’s practitioners appear to fall into two camps.
Doctors Wallin, Poppenbeek and Baker are of the view that the plaintiff had an
underlying degenerative spine which may have been aggravated in the course
of her employment.
Those doctors believe that aggravation has since
resolved and the current symptoms are related to the underlying disease and
not injury as a result of trauma.
60
Doctors Fraser and Stark and Mr Dooley believe the plaintiff’s presentation is
functional, that is, it has a psychological basis, rather than organic. Dr Fraser
is critical of the plaintiff and believes she is consciously exaggerating
symptoms. He considers the radiology normal for a person of the plaintiff’s
age. Mr Schutz thought that there was a disc bulge but without evidence of
sciatica and a non-organic distribution of symptoms in the leg. Only Mr Jones,
in his report of 2006, accepted that there was lumbosacral disc protrusion with
sciatica which was work-related, although he thought she was capable of
undertaking the work she had been doing as at the date of termination in May
2004.
61
67
68
69
70
VCC:AS
It is difficult to determine which medical opinions to accept given only Mr
DCB 143(i) – DCB 143(l)
DCB 143(v)
DCB 309b
DCB 310
20
JUDGMENT
Tutuian v GTS Industries Pty Ltd
Schofield was called to give evidence. Doing the best I can, however, I reject
the opinion of those doctors who find that the plaintiff’s current complaints are
related to the underlying degenerative condition, and any work-related injury
has since resolved. There is no issue the plaintiff was symptom-free before
November 2000. I accept her evidence she has had pain in varying degrees
in the lumbar spine from that time to the present. In my view, those symptoms
indicate that work as at November 2000, and possibly before, was responsible
for the onset of symptoms, even accepting there was an underlying
degenerative process in the spine.
In my view her symptoms are work-
related.
62
The other view is that the plaintiff is suffering from a psychologically-based
chronic pain syndrome which would explain the claims of referred pain down
to the left leg. Those who examined the plaintiff on behalf of her solicitors,
notably Dr White, Dr Harkness, Dr Sutcliffe, Mr Khan and Mr Schofield, are all
of a view the plaintiff suffers from a disc injury at the L5-S1 (or L4-L5) disc. To
some extent, this is confirmed by the radiology; particularly the CT scans of
September 2001 and May 2008, although apparently not by the MRI scan of
February 2009. Those doctors further accept that there is referred or sciatic
pain into the left leg consequent upon the disc prolapse.
63
In terms of the radiology, I accept the opinions and reports of Dr Varma who
has seen all of the relevant scans, and is a specialist radiologist.
His
examination of the scans of September 2001 and 2008 indicate a shallow disc
bulge at L5-S1 with facet joint deterioration over that period. Although not
specifically referred to in the MRI scan of 6 February 2009, he nonetheless is
of the opinion that there was little change in the disc pathology at L5-S1
between May 2008 and February 2009. He stated that the nature of the
plaintiff’s duties were a significant factor contributing to the development of the
disc pathology at L5-S1.
64
VCC:AS
However, radiology is not of itself a diagnostic tool. It must be combined with
21
JUDGMENT
Tutuian v GTS Industries Pty Ltd
the history provided, and findings upon clinical examination. Generally, the
plaintiff’s doctors accept that there is evidence of sciatic pain as a result of the
compromise of the lower lumber disc and this is confirmed by neurological
signs, including calf wasting and weakness on eversion/inversion.71
65
The opinion of Dr Goldman, general practitioner, who has treated the plaintiff
over a considerable period, is that the plaintiff does have L5-S1 disc bulge
with left sciatica. He says further that the plaintiff has a pain syndrome in
relation to her left arm and neck.
66
Mr Schofield is of the opinion if scanning was taken of the plaintiff in the erect
position, with axial loading of the spine, it would indicate a prolapse of the disc
with compromise of the exiting nerves.
However, I view this opinion as
somewhat speculative even notwithstanding Mr Schofield’s considerable
experience in the area.
67
In the end, I prefer the opinion of the doctors who have reported on behalf of
the plaintiff that the plaintiff has suffered a disc injury in the nature of a bulge
or a prolapse, with referred or sciatic pain into the left leg. The latter findings
are based upon neurological abnormalities found by those doctors. At the end
of the day, it is not so much a question of the precise diagnosis of the
plaintiff’s condition, but rather an assessment of the consequences which are
said to arise as a result of compensable injury. It is those consequences
which determine whether the plaintiff has suffered a serious injury.
Pain and Suffering Consequences
68
I accept the plaintiff has suffered a disc injury which has led to pain in the
lower back over the period from November 2000 to the present time and
continuing. I further accept that the plaintiff has referred pain into the left leg
from time to time.
71
VCC:AS
See particularly the opinions of Mr Schofield and Dr Sutcliffe
22
JUDGMENT
Tutuian v GTS Industries Pty Ltd
69
I accept that this pain does cause restriction in the plaintiff’s domestic,
recreational and social activities and particularly affects her physical
relationship with her husband. I accept that she was a house proud woman
who took particular care in her domestic duties and that these have been
curtailed as a result of this pain.
70
It is pointed out by Mr Anderson that the plaintiff has had very little in the way
of treatment, and has not been referred to any specialist. At the present time
she is taking only “over the counter” medication. These are matters, in my
view, to be taken into account in assessing pain and suffering consequences,
although they are not determinative of the issue.
71
I accept the evidence of the plaintiff that amongst her various physical
problems, including carpal tunnel syndrome, neck and left arm pain and
lumbar pain that the latter is the worst.
The plaintiff has an impressive
employment record commencing when she arrived in Australia in 1989 which
was more or less constant until 2004.
In particular she worked for the
defendant for eleven years. She is not a person, in my opinion, who would
readily or easily cease employment or be restricted in the activities referred to
without good cause.
72
The failure of the plaintiff to be referred to a specialist surgeon or neurologist
is more a reflection of the fact that there is really only conservative treatment
available to the plaintiff rather than any surgical or other intervention, than any
paucity of the condition or symptoms arising from it.
73
I further accept that the plaintiff was on stronger medication at an earlier time,
but this caused an upset to her stomach, and she is now only receiving “over
the counter” medication. I accept the submission of Mr Anderson that there is
nothing particularly sinister about the radiological picture.
If there is disc
bulging or prolapse, it is at the lower end of the scale, but the more definitive
assessment of the extent of the disc injury is determined by physical
VCC:AS
23
JUDGMENT
Tutuian v GTS Industries Pty Ltd
examination. As stated, I accept the views of the various plaintiff’s doctors in
that regard.
74
For all of the reasons referred to above, I am of the view that the
consequences to this plaintiff do satisfy the “very considerable” test in relation
to pain and suffering, and I propose to grant leave to the plaintiff in that
regard.
Loss of Earnings Consequences
75
It is pointed out by Mr Anderson that the plaintiff acknowledged that she
continued working, save for a period of light duties of about two months, in the
same capacity as before injury. It was only the onset of neck and arm pain in
September 2001 that caused a change in the nature of her duties. It was
further neck, arm and hand problems which led to the reduction in her hours
to six hours per day, or thirty hours per week.
76
On the evidence, I am satisfied that the reduction in the plaintiff’s hours was
not related to her back problem at the time, although I accept that she did
suffer ongoing pain in the back and left leg over the period.
77
It is submitted by Mr McGarvie that the duties the plaintiff was undertaking
prior to her dismissal in May 2004 were unrealistic, established solely to
accommodate the plaintiff’s incapacities, and no real reflection of the plaintiff’s
capacity for employment at that time. Mr McGarvie relies upon the principles
established by Smorgon Steel Tube Mills Pty Ltd v Majkic.72
That case,
however dealt with employment obtained by the worker after injury, and
Buchanan AJ considered that the phrase “suitable employment” ought qualify
that employment. He said:
“… the work on one side of the comparison may be a contrived,
adventitious, short-term occupation bearing little or no resemblance to
the work for which the worker is suited. I consider that the legislature
intended that the worker’s loss of capacity was to be determined having
regard to work that is generally available in the employment market,
72
VCC:AS
[2008] VSCA 230
24
JUDGMENT
Tutuian v GTS Industries Pty Ltd
rather than a position tailored to meet the peculiar needs of an individual
worker, who is incapable of performing his normal work.”
78
Mr McGarvie submits that given the plaintiff had five minute breaks each hour,
and was the only worker in the factory to be working six hours a day, that that
did not reflect capacity for suitable employment. However, the position as at
May 2004 was that the plaintiff was working as a process worker, albeit on
reduced hours. I do not see the principles of Majkic having application in the
sense as Mr McGarvie suggests. I accept that the hours being worked by the
plaintiff and the nature of the duties undertaken as at May 2004 did reflect the
plaintiff’s capacity for employment at that time.
79
The real question to be determined is the extent of the plaintiff’s capacity for
suitable employment as at this time. Mr Anderson points out that the plaintiff
accepted that had she not been terminated from employment she would have
continued on the duties she was then undertaking. He further states that the
plaintiff has undertaken training as a pharmacy assistant and has applied for a
number of jobs in that area. He further points to the admission of the plaintiff
in 2006 that she considered she was capable of working thirty hours per
week.
80
There is little dispute even in the opinion of the defendant’s doctors that the
plaintiff does not have the capacity for the heavier duties she was undertaking
in November 2000.
81
I do accept, however, that the plaintiff does have the capacity for a range of
employment, albeit in a restricted capacity. In this regard, I am impressed
with the opinion of Dr Horsley of November 200873 as to the nature and extent
of the plaintiff’s present work capacity.
Regardless of what the plaintiff
considered she could or could not do in 2006, the opinion of Dr Horsley, in my
view, particularly given her specialty, is considered and authoritative. She
sets out a range of activities which the plaintiff should avoid. She commended
73
VCC:AS
PCB 92
25
JUDGMENT
Tutuian v GTS Industries Pty Ltd
the plaintiff for retraining to upgrade her skills as a pharmacy assistant. She
reflects upon the matters which I must take into consideration under the
definition of “suitable employment” contained in the Act, including the plaintiff’s
age, experience outside the manufacturing sector and the plaintiff’s physical
restrictions. She concludes:
“I believe that her prognosis for successfully re-entering the workforce is
poor, despite her efforts. I believe that her capacity for work lies in parttime hours, spread over a five-day period within the restrictions as
outlined above. I do not believe that she is likely to be able to return to
full-time hours.”
82
Dr Horsley considered the plaintiff had the capacity to work three to four hours
per day, five days per week.
83
The next matter to consider in relation to loss of earnings is the extent to
which the plaintiff’s compensable lumbar injury is responsible for her current
work capacity. As stated by Ashley JA in Grech,74 I must be satisfied that the
compensable injury “materially contributes” to the alleged incapacity for
employment. Clearly there are other factors, including the plaintiff’s neck and
left arm problem, and carpal tunnel syndrome which are playing a role in that
work incapacity.
However, I am satisfied that the lumbar discal injury
“materially contributes” to the work incapacity.
I accept it is the most
significant of the plaintiff’s physical problems.
84
S.134AB(38)(e) and (f) require me to consider and compare the plaintiff’s
gross income from personal exertion which she is capable of earning at the
present time, with “without injury” earnings in the three years before or after
injury as best reflects earning capacity.
If the plaintiff is able to prove a
diminution of 40 per cent or more when that comparison is made, she satisfies
the “very considerable” test in relation to loss of earning capacity.
85
In respect of the plaintiff’s current capacity, I am satisfied that she has the
capacity to work twenty hours per week in restricted employment as set forth
74
VCC:AS
supra
26
JUDGMENT
Tutuian v GTS Industries Pty Ltd
in the opinion of Dr Horsley. Even notwithstanding the plaintiff’s difficulties
with the English language, if I were to accept that she could work as a
pharmacy assistant earning $575.00 gross per week for a full working week,75
according to Dr Horsley’s opinion, she would have the capacity to work halftime and thus return $288.00 gross per week.
86
The second part of the equation is to assess that figure which most fairly
reflects the plaintiff’s earning capacity within three years before or after injury.
A comparable worker in the position of the plaintiff as at June 2004, according
to the defendant’s material,76 was capable of earning $26,897.00 gross per
year, or $517.00 gross per week. I accept this figure for the second part of
the formula in s.134AB(38)(f).
87
When the comparison is thus made between $517.00 gross per week as
being the plaintiff’s capacity within three years of employment, with what I now
assess to be her current capacity, $288.00 gross per week, the plaintiff has
satisfied me that her loss of earning capacity does exceed 40 per cent.
Arithmetically she has a loss of approximately 56 per cent.
88
In these circumstances, I am satisfied the plaintiff achieves the serious injury
level in respect of earning capacity.
Conclusion
89
I am satisfied that the plaintiff meets the statutory requirement in respect of
both pain and suffering and loss of earning capacity, and propose to grant
leave for her to issue proceedings in that regard, and make the appropriate
consequent orders.
---
75
76
VCC:AS
DCB 310
DCB 309b
27
JUDGMENT
Tutuian v GTS Industries Pty Ltd
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He acknowledged that the plaintiff had suffered a soft tissue injury