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