IN THE MAGISTRATES COURT

OF VICTORIA

AT LATROBE VALLEYW01173593

BETWEEN

CLARA BOSPLAINTIFF

And

SAFEWAYDEFENDANT

HEARING5 & 6 December 2007

DECISION 19 December 2007

MAGISTRATE S GARNETT

Mr Carson appeared for the Plaintiff

Mr Batten appeared for the Defendant

Catchwords: Aggravation of underlying degenerative

condition –Suitable Employment – “Degree of Realism” required.

Mrs Bos commenced employment with Safeway in 1989 having been absent from the workforce for a period of 25 years whilst raising her four children. On 13 May 2002, she aggravated a pre-existing degenerative condition of her lumbar spine at work whilst wrapping plastic around a store display. She continued working until 28 May 2002, has been certified as unfit for work since, and receivedweekly payments of compensation until 19 February 2007.

Safeway terminated her weekly payments and medical treatment expenses on that date on the basis that:

  1. she was no longer suffering from an injury arising out of or in the course of her employment, and,
  2. medical and like expenses are not or are no longer reasonable in respect of the injury.

Additionally, Safeway allege that she has a “current work capacity” and is not entitled to further weekly payments.

History

Mrs Bos was born on 7 August 1944 in Holland and is aged 63 years. When she commenced employment with Safeway, she was aged 45 with her only employment history being in the hairdressing field for a period of six years between the ages of 14, when she left school without completing Form 1 and age 20, when she married.

On the commencement of her employment she initially worked on cash registers and then in the delicatessen. In 1990, she sustained a low back injury because of a twisting action at work, which required three months off work and physiotherapy treatment. She returned to work on a graduated basis and received workcare benefits for this injury.

It also appears that in 1996 she experienced further back problems which resulted in x-rays being taken and physiotherapy treatment and a referral to a specialist who discussed operative treatment with her but for which she was reluctant to undergo.

In 2000, she also sustained tendon injuries to her left hand at work for which she has undergone three operations with her time off work paid under workcover.

On 13 May 2002, Mrs Bos described experiencing a sudden “cricking, grabbing or catching” sensation in her low back associated with pain in her buttocks and legs whilst wrapping plastic around a store display at the end of an aisle at Safeway. She gave evidence that the gondola was approximately two foot high and situated on the ground, which required her to crawl, bend and twist in order to perform the task. She continued working, although found it difficult to cope with the pain and modified her activities accordingly. She completed an Incident Report Form on 17 May and eventually consulted her family doctor, Dr Briggs, on 28 May when her symptoms had not resolved. Dr Briggs initially certified her fit for modified duties to 26 June 2002 and to avoid heavy lifting and bending, but on 4 June 2002 certified Mrs Bos as being unfit for all work as from 30 May 2002 to date.

Mrs Bos gave evidence that she continues to experience constant back pain and intermittent leg pain and that her condition and symptoms have not improved. Her evidence was that she requires assistance in putting on her socks and underwear, has difficulty sitting or standing for long periods, bending, lifting and walking on uneven ground.

Medical Evidence

Because the issues in dispute between the parties are confined and there is no controversy as to the nature of the injury sustained by Mrs Bos, it is not necessary for me to detail all of the medical evidence. The only viva voce medical evidence was given by Dr Briggs. Her medical reports were tendered, as were reports from Orthopaedic specialists, Mr Thomas, Mr Moran and Ms McKenzie on behalf of Mrs Bos and Safeway tendered a medical report from Orthopaedic specialist Mr Wearne.

This evidence confirms that Mrs Bos has widespread degenerative disc disease with central and foraminal stenosis affecting all the lumbar discs. It is also accepted that the incident at work on 13 May 2002 aggravated the underlying degenerative condition rendering it symptomatic.

The first issue to determineis whether Mrs Bos is still suffering from the effects of theinjury.

Dr Briggs is of the opinion that the May 2002 incident triggered the pain and symptoms that Mrs Bos experiences and that they have not improved. She conceded in cross-examination that she could not segregate the current pain and symptoms Mrs Bos experiences as a direct result of the May 2002 incident and that due to the natural progression of her underlying degenerative condition.

The opinions of Mr Thomas and Mr Moran, orthopaedic surgeons are of little assistance on this issue as they last examined Mrs Bos inAugust and September 2002 respectively. However, Mr Thomas in his report dated 28 May 2007 states that although her employment did not cause the degenerative changes it did lead to her becoming symptomatic and likewise Mr Moran in his report dated 27 September 2007 noted that her symptoms settled following the previous injury and she had no ongoing problems with her back prior to this incident.

Ms McKenzie, orthopaedic specialist examined Mrs Bos for medico legal purposes on behalf of her solicitors on 2 May 2007. In addition to confirming that the May 2002 incident aggravated and caused a deterioration of her underlying degenerative condition, she is of the opinion that it has resulted in a permanent impairment and disability.

Conversely, Mr Wearne who examined Mrs Boss on 23 March 2006 is of the opinion that although the May 2002 incident aggravated her pre-existing degenerative condition, the effects of that aggravation were only temporary in nature and her current clinical state would have inevitably eventuated whether or not the incident occurred.

I found Mrs Bos to be a credible and honest witness. I accept her evidence that since the 13 May 2002 incident she has not been symptom free. Unlike the previous episodes in 1990 and 1996, she has continued to experience back and leg symptoms and has constant restrictions on her daily living activities. Unlike the 1990 injury and the injury sustained to her hand in 2000, she has been unable to return to work. She has continued to require medication to cope with her pain. She has also developed an anxiety/depressive condition because of her injury for which she is prescribed Efexor, an anti-depressant. I accept her evidence that she has difficulty in performing day-to-day activities such as vacuuming, washing and cleaning and that she is unable to sit or stand for long periods and lift or bend without pain. I accept that these restrictions and symptoms have persisted since May 2002.

Accordingly, I find that Mrs Bos continues to suffer from the effects of the incident on 13 May 2002 whereby she aggravated her underlying degenerative condition in the workplace.

The second issue to determine is whether Mrs Bos has a capacity for suitableemployment.

Dr Briggs has certified Mrs Bos as being unfit for all employment since 30 May 2002. In particular, she does not believe Mrs Bos is fit for her pre-injury employment and has a restricted capacity for work because “she is not trained for any other kind of work” and she cannot sit or stand for long periods. Both Mr Thomas and Mr Moran thought in 2002 that she would be capable of returning to modified duties although Mr Thomas noted that Mrs Bos had a negative perception of Safewaydealing with workcover patients, which would not enhance her rehabilitation prospects. Dr Briggs conceded under cross-examination that although she had discussed the possibility of a return to work/rehabilitation with Mrs Bos, she did not contact Safeway about this possibility.

Dr McKenzie is of the opinion that if taken in isolation Mrs Bos’s back injury would allow her to work part time (4 hours/day) that did not require her to repetitively lift or carry weights in excess of 3-4 kg, repetitively twist or bend her trunk under pressure, to use vibratory or percussive equipment or to work with her trunk half bent forward for longer than 15-20 minutes at any one time. Additionally, having regards to her age, the fact that she has not worked for five years and her emotional state, she does not believe Mrs Bos will return to employment.

Mr Wearne opined that Mrs Bos was not fit for her pre-injury employment but is capable of suitable employment of at least eight hours per week with freedom to change position and rest as required and with a weight lifting limit of 5 kg. After reading the Vocational Assessment report of Cathie Brydon from Advanced Personnel Management, dated 27 November 2006, which was tendered by Safeway, he believes the occupations identified therein, as a call centre operator, data entry operator, cashier and sales assistant (light products) would be within the capabilities of Mrs Bos with the physical and time restrictions he suggested.

Mrs Bos tendered a report of Mr Hartley from The Occupational Rehabilitation Group who after considering the medical reports tendered and the report of Cathie Brydon expressed the opinion that none of the nominated suitable employment options were valid. I agree.

Mrs Bos has significant medical restrictions on her employment capacity as outlined above. She does have a physical capacity to perform some modified duties between eight hours per week (Mr Wearne) or 20 hours per week (Dr McKenzie).

However, in addition to these medical restrictions, she has insurmountable vocational barriers. She left school at 14 years of age without completing Form 1. She has only basic English literacy skills. She has minimal computer skills and cannot touch type. She cannot drive for long periods and resides in Moe, which has limited public transport facilities. She takes regular medication and a particularly high dose ofTramal,which causes drowsiness. She sustained a left hand tendon injury, which has resulted in a loss of strength in her left hand. She has not been re-trained or provided with any form of rehabilitation since ceasing work in 2002. She is now aged 63.

The suggested employment options are absurd.

She could not perform the duties required as a Data Entry or Call Centre Operator. As Mr Hartley quite rightly indicates in his report, these positions require considerable computer skills including keyboarding and data entry/retrieval. They require communication and social skills and an ability to work in a high volume and stressful environment. The physical restrictions imposed on Mrs Bos would prevent her from working as a sales assistant or cashier as both occupations would necessarily involve periods of prolonged standing or sitting, lifting, bending, stooping and twisting actions. An employer would not accommodate her need for regular rest breaks, modification of duties and time off when her pain levels prevented her from working.

Whilst I am mindful of the principles set out by the Court of Appeal inBarwon Spinners[1]in relation to “suitable employment”and the application of those principles to statutory benefit entitlements[2], a degree of reality must be applied for the concept and the Act to have practical and meaningful application. A “degree of realism” when considering the concept and application of suitable employment and capacity for employment is not new and has been applied by the courts before and afterBarwon Spinners[3].

In the present case, Mrs Bos may well have a theoretical capacity for very restricted employment, but she has no realistic capacity, either now, or in the foreseeable future, taking into account the matters to which I have referred.

Mrs Bos does not possess sufficient skills, nor is she because of her limited education, employment background and age, suitable for re-training or effective rehabilitation. In addition, from 2002 when she ceased work she has not been provided with a return to work or rehabilitation plan by Safeway.

Furthermore, the suggested “suitable jobs” have not been actually offered to her. Dr Briggs was not approached for comment as to their suitability prior to this hearing. The suggested hours of work and places of employment are not stated nor are the precise tasks of the particular jobs suggested detailed. Overall, the suggested suitable employments are abstract and I find that she has no realistic capacity for employment.

I might also add, that whilst Mrs Bos and her treating doctor were criticised in cross-examination for not exploring the opportunity for her to be re-trained/rehabilitated, it is also equally appropriate to criticize Safeway for their failure over the past five years to approach Mrs Bos or her doctorto explore possible avenues for re-training/rehabilitation, notwithstanding the provision of total incapacity certificates, taking into account the size of their organisation and their obligations to comply with S 156-162 of the Accident Compensation Act 1985.

Accordingly, Mrs Bos is entitled to weekly payments, reasonable medical, and the like expenses from 19 February 2007 in accordance with the Act.

1

[1] 2005 VSCA 33

[2] See Unreported Decision of Judge Wilmoth in Spoljaric v PBR Automotive Ltd 15 June 2005 and Judge G D Lewis in Levey v Apex Printing P/L 31 October 2005.

[3] See; Meehan v VWA Judge Higgins 12 April 1996, Judge Strong; in Lowe v Bacchus Marsh Secondary College 2 December 1998, Imbraim v J & M Quality Meats 24 February 2006, Gacovski v Wiltari P/L 27 June 2006, Cihan v Chiquita Mushrooms P/L 12 July 2006, Judge G D Lewis in Holt v Kleyn Plant Hire P/L 27 August 2002, Judge Coish in Vitoratos v VWA 17 July 2003 and Williams v Mullins Wheels P/L 12 February 2004, Judge Bowman; in Sumner v Multie Technology Distribution 19 April 2005, Hodgins v Gadsdens P/L 22 April 2005, Baker v Byrne & CGU 27 September 2005, McPeake v D & F Bell & Ors 22 February 2006, Atchison v Nestle Australia P/L 22 March 2007 and Annett v Frewstal P/L 6 December 2007, Judge Jenkins in Opashinova v Melbourne Health 27 October 2005, Judge Lawson in Tran v Visy Recycling Operation P/L 2 December 2005, Judge Wood in Busuttil v Ford Performance Vehicles 28 April 2006, Judge Hannan in Alic v Wiredex P/L 2 February 2007, Judge Morrow in Haeusler v Flexdrive Industries P/L 7 February 2007, Judge Barnett in Henderson v Nulab Professional Imaging P/L 19 February 2007 and Judge Dove in Stevenson v Racovolis Amalgamated Fish Agents P/L 25 May 2007.