Abebe v Somerville Retail Services P/L
[2011] VCC 1413
•14 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
No. CI-10-02322
| TIGEST ABEBE | Plaintiff |
| v | |
| SOMERVILLE RETAIL SERVICES PTY LTD | Defendant |
| JUDGE: | HER HONOUR JUDGE JENKINS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10,14,15 & 16 June 2011 |
| DATE OF JUDGMENT: | 14 September 2011 |
| CASE MAY BE CITED AS: | Abebe v Somerville Retail Services P/L |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1413 |
REASONS FOR JUDGMENT
---
Catchwords: Accident Compensation Act 1985; s.134AB Application under paragraphs (a) and (c) serious injury; Pain and suffering and Economic Loss; Claimed lower lumbar spinal injury and persistent major depressive disorder; spinal surgery; further surgery recommended; Credit and reliability of Plaintiff; Plaintiff has not discharged onus under s. 134AB(19)(b); consequences of any mental disorder not severe; Leave granted for pain and suffering under paragraph (a) only.
| ---APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.G Brookes SC with | Patrick Robinson & Co |
| Mr R.C. Forsyth | ||
| For the Defendant | Mr B.R. McKenzie | Herbert Geer |
TABLE OF CONTENTS
Nature of Application ..........................................................................................................2
Significant Issues for Determination .................................................................................2
Evidence...............................................................................................................................3
The Plaintiff’s Evidence ......................................................................................................4
Prior Medical Conditions ..................................................................................................4
Nature of Work Performed ...............................................................................................5
Workplace Injury...............................................................................................................5
Treatment.........................................................................................................................6
Surgery.............................................................................................................................6
Current Medication and Treatment...................................................................................7
Return to Work and Rehabilitation....................................................................................7
Consequences .................................................................................................................7
Work Capacity......................................................................................................................9
Vocational Assessments.............................................................................................9
Medical Opinions ......................................................................................................10Plaintiff’s Evidence....................................................................................................10
Radiological Findings .......................................................................................................11
Medical Evidence...............................................................................................................12
Mental or Behavioural Disturbance or Disorder..............................................................19
Video surveillance .............................................................................................................21
Relevant Statutory Provisions and Case Law.................................................................21
Assessment of Consequences .......................................................................................23
Issue of Credit ................................................................................................................26
Work Capacity and Comparing With and Without Injury Earnings..................................27
Analysis of the Evidence and Findings ...........................................................................29
Physical Injury...........................................................................................................36
Mental Disorder.........................................................................................................39
Work Capacity and Loss of Earnings ........................................................................40
Comparison of With and Without Injury Earnings......................................................42
Defendant’s Position .................................................................................................42Plaintiff’s Position......................................................................................................42
Conclusion .........................................................................................................................44
Orders.................................................................................................................................46
HER HONOUR:
Nature of Application
1 This is an Application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Application pursuant to section 134AB(4) on 1 June 2010 by the Plaintiff, in respect of injuries which she alleges occurred during the course of her employment with the Defendant and in particular on 19 January 2005.
2 The Plaintiff seeks a declaration that she suffered a serious injury as defined within section 134AB(37) on two bases:
a) Under paragraph (a), by reason of an injury to her lower lumbar spine and/or aggravation to pre existing degenerative disease of her lower lumbar spline: and b) Under paragraph (c) by reason of the development of a depressive disorder and anxiety as a generalised reaction to her physical injuries. 3 Leave is sought in relation to damages for both pain and suffering and loss of earnings.
4 These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
Significant Issues for Determination
5 The issue in dispute is whether the Plaintiff satisfies the statutory definition of serious injury with respect to pain and suffering and loss of earning capacity.
6 Defendant’s Counsel concedes that the Plaintiff suffered a compensable physical injury as alleged. However, it disputes the nature and extent of any impairment and contends that the consequences are not serious. The Defendant denies that the Plaintiff has developed a consequential psychiatric disorder. The credit of the Plaintiff was also challenged.
7 Under each head of claim, the Defendant contends that the Plaintiff has a capacity for suitable employment and she has not proven a permanent loss of income of at least 40%.
8 I will now deal with the issues raised by the Defendant as follows:
a)
I will briefly summarize relevant evidence from the Plaintiff’s two affidavits and her oral evidence which attest to the occurrence, nature and extent of her injuries and the effect upon her;
b)
I will refer to relevant medical evidence which characterise such injuries and their clinical findings;
c)
I will briefly deal with relevant statutory provisions and certain case law which each Counsel relied upon;
d)
I will then summarise a number of troubling features emerging from the evidence; and
e)
Finally, I will consider the nature of the injuries and impairment suffered; their consequences for the Plaintiff; and the evidence of work capacity of the Plaintiff for suitable employment.
Evidence
9 In support of the Application, the Plaintiff relied upon:
(a) Medical reports tendered from the Plaintiff’s Court Book, affidavits and other documents; and (b) Oral evidence given to the Court by the Plaintiff, her general practitioner Dr Hagos; and treating orthopaedic surgeon Mr Barrett. 10 Opposing the Application, the Defendant relied upon tendered medical reports and other documents.
11 The Plaintiff bears the overall burden of proof in addition to the burden specifically referred to in Section 134AB(19)(b) of the Act.
The Plaintiff’s Evidence
12 In her affidavits, the Plaintiff deposed as follows.[1]
[1] Sworn 14 January 2010 & 27 May; PCB 5-10; 13-14
13 The Plaintiff is now 40 years old having been born on 14 October 1970. She was born in Ethiopia where she completed 12 years of schooling. After finishing school she remained at home with her family. She married and had one child before fleeing Ethiopia as a refugee having walked four days to cross the border to Djibouti. The Plaintiff lived there for two years then spent two years in Italy before being resettled in Australia in 1996. Since settling in Australia The Plaintiff has had two more children.
Prior Medical Conditions
14 Under cross examination the Plaintiff confirmed having prior surgery for a subdural haematoma carried out by Professor Kaye on 22 December 1996,[2] The Plaintiff said that the effects of this condition had resolved within 12 months of this surgery and she was back to normal within a year.[3]
[2] DCB 236
[3] Transcript 38, lines 8 to 12.
15 The Plaintiff was then cross examined in detail about a subsequent transport accident claim for permanent impairment benefits in respect of the same injury made two and a half years after the surgery, when she was also seeing a number of doctors in relation to that claim.[4] In particular, the Plaintiff was cross examined about accounts recorded by those doctors in the period February 1999 to November 1999.[5] The Plaintiff recalled receiving about $7000 compensation,[6] but she otherwise did not recall the various ongoing complaints recorded in the doctors’ histories of headaches and psychiatric symptoms.
[4] DCB 253-254: Plaintiff’s solicitor’s letter to TAC dated 19 June 1999 ; TAC's letter dated 6 July 1999, assessing the Plaintiff’s impairment at 19 per cent.
[5] DCB 242-243 & Transcript 22-23: Dr Christine Kilpatrick’s report dated 4 February 1999; DCB 246- 248 & Transcript 25-26: Dr Honey’s report dated 12 April 1999;cDCB 256-258 & Transcript 27-30: Dr Kornan’s report dated 8 September 1999; DCB 270-272 & Transcript 30-33:Dr Drury's report dated 30 September 1999; DCB 277–279 & Transcript 34-36: Associate Professor McDermott report dated 20 December 1999; and DCB 282-283 & Transcript 36-: Dr Leslie Sedal report dated 10 March 2000.
[6] Transcript 20-21
16 When she arrived in Australia she found work as a room attendant at the Sheraton Hotel and did this full time for about 6 months before finding work with the Defendant. Initially she was measuring sausages in a small company. Over time the company grew and changed hands to become the Defendant. Apart from two periods of time when she was absent for maternity leave she worked full time for the Defendant or its predecessors.
Nature of Work Performed
17 The Plaintiff worked as a process worker and her duties involved weighing meat products using scales, putting trays of product onto the lines and packing product into boxes. The work was often heavy including unpacking pallets of materials. Much of the work had to be performed in very cold temperatures. The nature of her work was such that it did produce symptoms of leg and hip pain. In 2004 she attended Dr Hagos with leg and hip pain. She was given light duties and moved out of the cool room and at that time things settled down.
Workplace Injury
18 On or about 19 January 2005 the Plaintiff injured her back when she was pulling a rope to try and remove plastic shrink wrap from pallets and the rope gave way suddenly causing her to lose balance and fall partly onto the pallet and partly onto the floor striking her back and hurting her right shoulder. She made a report of the injury and incident on that day. She struggled on at work eventually stopping in about March 2005.
Treatment
19 The Plaintiff attended Dr Hagos, but had also seen a Dr Bettany, who is understood to be a ‘company’ doctor. In March 2005 Dr Hagos organized a CT scan of her lower back which showed changes that explained her symptoms.
20 The symptoms became so severe that she was having trouble walking so she presented at the Emergency Department at Sunshine Hospital in April 2005.
21 The Plaintiff continued with physiotherapy and medication but her back pain and ability to move about did not improve. She was suffering from leg pain that was quite severe. Her left leg kept giving way and this was interfering with her ability to walk. She was taking significant quantities of Tramal which was making her dizzy.
22 Finally, in 2006 the Plaintiff was referred to an orthopaedic surgeon Mr Lu Ton. He arranged an MRI and further X rays which were performed on 8 July 2006. They showed damage at one particular level where the nerve root was being pressed. He advised surgery.
Surgery
23 The Plaintiff eventually underwent surgery on 28 July 2008 at Warringal Private Hospital. Workcover paid for the surgery although there had been disputes earlier about their responsibility. She was very apprehensive about the surgery. She was reviewed by Mr Ton after the surgery.
24 Following surgery she continued on large amounts of painkilling medication including Tramadol and Oxycontin. Although there was some improvement in the pain after the surgery for a time this improvement did not last and within a few months after surgery the Plaintiff again had pain in her back and both legs.
25 She was advised to have an epidural injection but was anxious about things becoming even worse so did not go ahead with that. It was also suggested that she try a different physiotherapist to see if she could get more improvement so she chose to try that course first.
26 Dr Hagos and Mr. Ton have referred the Plaintiff to specialists for management of pain. Mr. Ton also told her that as the nerve root is still affected she may need to have a fusion operation in the future. She was also referred to Mr. Brian Barrett who said that she should seriously think about having further surgery. However the Plaintiff worried about this because of the failure of Mr. Ton’s surgery to give lasting benefit. Further, Dr Hagos referred her to Dr Stella Kwong, Psychiatrist, whom she then attended approximately every 4 to 5 weeks..
Current Medication and Treatment
27 At present the Plaintiff takes Oxycontin twice a day, sometimes three times a day and antidepressant tablets.
28 The Plaintiff has continued to see Dr. Hagos regularly but stopped going to Dr. Kwong about nine months ago because she felt she was not helping. She has not taken tablets for her depression since then.
Return to Work and Rehabilitation
29 The Plaintiff has not returned to any employment and no return to work plan has been suggested. The Plaintiff does not believe that she is capable of returning to work.
Consequences
30 The Plaintiff’s husband used to work at Toyota. He resigned his job shortly before the operation to look after her and the family. For the time he remained at home looking after her he received a carer’s pension from Centrelink. For financial reasons he is looking for work again now even though the Plaintiff is unable to look after the family.
31 The Plaintiff is unable to sit comfortably on her left side and is unable to sit for long periods of time.
32 Her left leg in particular is sore and it often feels numb and she has difficulty walking at times.
33 She has difficulty bending over, or twisting.
34 The Plaintiff used to be very house proud and was keen to keep her house clean and tidy inside and out. Now, she is unable to vacuum. She has difficulty sweeping and avoids mopping. Generally her daughter or husband do these things.
35 The Plaintiff uses a small trolley to hang out the washing as this avoids carrying the load of wet washing to the line.
36 The Plaintiff used to love to cook and cooked many traditional Ethiopian foods. She often helped out at the community centre cooking for others. In particular she used to help the Ethiopian community at big community events. She would cook for many people for christenings or birthdays and other big events but is no longer able to do this.
37 The family used to enjoy driving holidays to different parts of Australia before the accident; now she is unable to sit in the car for long drives and has not been able to continue these holidays.
38 Mostly her husband has been around to take the children to and from school.
39 The Plaintiff’s daughter has moved out of the house and her husband is working. Two Ethiopian boys now board with the family, and they, and her husband at times, do most of the domestic work. Occasionally, if she feels up to it, she does easy jobs, like washing a few dishes, and hanging out some clothing to dry. Sometimes, she drives the children to and from the local school, does some shopping, and visits a friend.
40 She suffers constant pain in the lower back. The pain goes down the left buttock, and leg. She has a lot of pain in the left ankle and foot and suffers from numbness and pins and needles in the left foot. Her right shoulder and neck are now all right.
41 The Plaintiff has become very anxious and depressed. It upsets her very much that she cannot work and contribute financially to her family’s welfare. She has lost contact with a lot of relatives and friends. She is distressed about the loss of the very active social life enjoyed before her injury. She has developed a drinking problem as a result of the pain and depression. Her relations with her husband and children are very strained. Her daughter left home, because she could no longer cope with the Plaintiff’s behaviour.
Work Capacity
Vocational Assessments
42 Ms Joanne Bryant, Occupational Therapist and Ms Mandy Moffitt,
Physiotherapist. of CoWork[7] prepared a report on behalf of the Defendant analysing a number of potentially suitable jobs. Their report was prepared after assessing the relevant skills required and having regard to reported physical restrictions. They recommended the following jobs as suitable: Crossing Supervisor; Hand Line Operator; and Hand Packer.
[7] DCB 207- and Exhibit 6, 230A-E
43 Ms Louise Meilak Recruitment Consultant of Flexi Personnel Pty Ltd assessed the Plaintiff's capacity for suitable employment at the request of her solicitors. Ms Meilak sites her qualifications as including a business degree and experience in human resources. Ms Meilak noted that the Plaintiff's prior work experience had been of a manual nature and having regard to her education, work experience and training she would generally have been suited to work as a room attendant, process/assembly worker or cook. Ms Meilak also considered certain jobs identified by CoWork as suitable, namely: school crossing supervisor, hand line operator and hand packer.[8]
[8] PCB 84
44 After taking into account the physical and mental restrictions notified in the reports of Dr Hagos, Mr Pierce, Dr Kwong and Mr Ton; and her limited skills, Ms Meilak concluded that the Plaintiff would not be capable of performing any suitable employment.[9]
[9] PCB 79-81 it
Medical Opinions
45 Prior to her decompression surgery, Mr Wilde and Mr Buzzard[10] both considered that the Plaintiff had some work capacity for sedentary or light duty employment. Mr Wilde recommended commencing 20 hours per week:
Over three months this should be increased to full hours and then her
work tasks could also be increased, although she should not be made tobend, lift or twist and should not carry weights more than five
[10] DCB 66
kilograms 11
46 Following surgery, Dr Hagos, Mr Barrett, and Mr Kierce all considered that the Plaintiff had no capacity for any suitable employment. Taken in the context of other evidence, I agree with Defendant’s Counsel that this is an overly pessimistic and restricted view.
47 Dr Kwong and Dr Nathar both considered that the Plaintiff had no capacity for any suitable employment from a psychiatric perspective.
48 Mr Jones considered that the Plaintiff did have a capacity for suitable
employment within stated restrictions. 12 Plaintiff’s Evidence
49 The Plaintiff gave evidence that she has not looked for any work of any kind in the past six years since her workplace injury; she has not looked at the availability of any suitable work in newspapers or local papers; and she has not registered with any employment agency.[13]
[13] Transcript 49 & 71 & 49
50 In relation to improving her English, the Plaintiff said that she attempted an English course in 2006 or 2007. However she failed a preliminary examination and did not follow it up any further:
Because I just thought, you know, even if I go to school and educate myself, what to do after this? I'm not well, so I don't want to bother myself going to school.[14]
[14] Transcript 52-53
51 I note that the Plaintiff admitted that the video surveillance shows her accompanying a friend to the city to help that friend, whose English was not as good as hers, to sort out an issue with wages.
Radiological Findings
52 On 23 March 2005 a CT scan of the Plaintiff’s lumbar spine was reported as demonstrating:
moderate canal stenosis at L4/5 level with mild to moderate central canal
stenosis noted at L5/S1 level
foraminal stenosis at bilateral L4/5 level. Degree of nerve root impingement to the exiting L4 nerve roots is better assessed with MRI examination of the lumbar spine if clinically indicated…[15]
[15] PCB 67
53 On 8 July 2006 an MRI scan was reported as demonstrating:
L4/5 disc protrusion producing central canal and left lateral… Stenosis and probably impingement on the left L4 nerve in its neural exit foramen[16]
[16] PCB 69
54 On 20 February 2008 an MRI scan was reported as demonstrating:
The most significant changes are at L4/5 where there is a disc bulge with protrusion causing canal stenosis and particular compression of the left L5 nerve roots.[17]
[17] PCB 70
55 On 31 October 2008 a further MRI scan was reported as demonstrating:
Continuing disc at the L4/5 level as described which is in contact and slightly displaces the traversing left L5 nerve root. In addition there is epidural enhancement around the traversing left L5 nerve root at the L4/5 level consistent with post-operation granulation tissue. There is narrowing of the origin of the left foramen at the L4/5 level with disc lying adjacent to the exiting left L4 nerve root. The foraminal narrowing has slightly progressed since the last study[18]
[18] PCB 72
Medical Evidence
56 Mr Graham Peck Surgeon examined the Plaintiff at the request of the Defendant on 22 June 2004. At this stage the Plaintiff had been shifted to a warmer room in the factory where she continued working. The symptoms in her leg had virtually subsided.
Miss Abebe was seen to walk without a limp and was equally stable on either leg alone with the knee bent or straight and could squat fully to the floor, but complained of some discomfort in the upper left thigh at the extreme of squatting.
57 Other aspects of his clinical examination were essentially normal. Mr Peck described the Plaintiff's condition as quite unusual and difficult to explain but the most likely diagnosis was myositis or a cold sensitivity reaction.
This would have been of a soft tissue nature as there is no evidence of any neurological or circulatory impairment… The condition has now virtually resolved one she has been removed from the cold environment…[19]
[19] PCB 58
58 Dr M Hagos General Practitioner has treated the Plaintiff since she first attended his clinic on 31 March 2004 complaining of bad hips, and right and left leg pain which had been getting worse since she had been working in a cold environment.[20] She suffered a constant aching type of pain and was constantly taking painkillers such as Mobic and Tramal. She was given a Workcover certificate for one week and then continued a full-time light duty job from 2 May 2004 until July 2004.
[20] PCB 22
59 The Plaintiff continued to attend her general practitioner complaining of lower back pain, hip pain, thigh pain and leg pain. The lower back and leg pain became worse following a fall at work in January 2005. She also complained of a painful right shoulder. Subsequently she experienced sleep disturbance and when the pain worsened she attended the Emergency Department at the Western Hospital Sunshine.[21]
[21] PCB 24
60 In his most recent report of 9 February 2011 Dr Hagos confirmed that the Plaintiff continued to attend his clinic for her back injury as well as other non- related medical conditions.
61 Following disc compression surgery on 28 July 2008 the Plaintiff continued to complain of lower back pain and still continues to ask for more and stronger painkillers. She is no longer following any physiotherapy programme.
Overall she is suffering from chronic lower back condition and depression. Even though many years have passed since the accident and … Two years since the operation, she still is not showing any signs of improvement.[22]
[22] PCB 28
62 In his oral evidence Dr Hagos said that he had tried to take the Plaintiff off OxyContin for a while, but it did not work and she needed to go back on it. Mr Barrett also confirmed that OxyContin is a very effective and powerful painkiller.
63 Mr Peter Wilde Orthopaedic Surgeon examined the Plaintiff on 30 August 2005 at the request of the Defendant. At this stage the Plaintiff complained of constant lower lumbar pain with referral into both buttocks and proximal legs but not below the knees. She also complained of right shoulder pain. Mr Wilde noted that the CT scan of March 2005 demonstrated L4/5 disc bulge with no evidence of a neural compressive lesion. Mr Wilde diagnosed a strain of right shoulder muscles and an aggravation of pre-existing degenerative lower lumbar spondylosis without clinical or radiological evidence of radiculopathy.
The prognosis is guarded and I expect that she will continue to suffer with low-grade symptoms of chronic lumbar pain and stiffness. She will have to modified personal and work activities to accommodate her symptoms to avoid further deterioration.[23]
[23] DCB 58-59
64 Mr Anthony Buzzard Surgeon examined the Plaintiff on 27 April 2006 at the request of the Defendant’s solicitors. Notwithstanding the presence of an interpreter Mr Buzzard noted difficulty in communicating with the Plaintiff.
65 The Plaintiff complained of right shoulder pain and low back pain extending to both legs and ankles. Dr Buzzard noted her spinal canal stenosis which he considered would have been aggravated by the work place injury. He also diagnosed probable right shoulder rotator cuff pathology. However he considered there was a degree of functional overlay by reason of inconsistencies in clinical examination. The spinal canal stenosis would probably worsen with time. She would be capable of light employment but the limiting factors are both her right shoulder and lower back pain.[24]
[24] DCB 61-67
66 Mr Robert Carey Orthopaedic Surgeon examined the Plaintiff on 24 May 2007 at the request of the Defendant. She complained of lower lumbar pain extending to her left leg and pins and needles in the lower extremity. She walked with a mild limp on the left side and her walking tolerance was limited to 20 minutes.
67 Mr Carey attributed the Plaintiff's ongoing symptoms of lower back pain and left leg pain and numbness to the injury at the L4/5 intervertebral disc. She also had peripheral symptoms which were discogenic in origin. However sensory symptoms which were of a generalised nature in the left lower limb and trunk were non-anatomic and there were no objective findings indicative of radiculopathy.[25]
[25] DCB 77
68 Mr Lu Ton Orthopaedic Surgeon first examined the Plaintiff in June 2006 upon referral by her general practitioner with subsequent reviews in August 2006 ; January 2008 and May 2009 .
69 Initially Mr Ton diagnosed mechanical back pain with possible left leg radiculopathy. Upon review in August 2006 when an MRI was available Mr Ton noted a large disc herniation at L4/5 level.
70 Upon further review in January 2008 the Plaintiff reported worsening of her pain despite intensive physiotherapy and medications. Examination revealed poor and painful range of motion with persistent nerve root irritation. A further CT of the lumbar spine at that stage demonstrated persistent disc herniation at the L4/5 level and a small herniation at the L5/S1 level. Both compressed the left L5 nerve root. Dr Ton diagnosed:
mechanical back pain with left L5 radiculopathy, secondary to disc
herniation and foraminal stenosis at theL4/5 and L5/S1 levels.
71 In view of her persistent pain Mr Ton recommended surgery and on 28 July 2008 the Plaintiff underwent left-sided L4/5 posterior decompression with micro discectomy. Upon review of the Plaintiff in May 2009, Mr Ton noted significant improvement of her left leg pain but persistent low back pain.
Due to the severe low back and left leg pain, repeat X Ray and MRI scan of the lumbar spine was organised. They showed slight instability at the L4/5 level with grade 1 retrolisthesis. These findings with a persistent disc herniation caused recurrent impingement of the left L5 nerve root…
Mrs Abebe has difficulty in maintaining concentration , walking , sitting , standing , driving and writing. She has limited capacity for manual work or preinjury employment …
Overall prognosis is guarded due to the chronicity of her spinal condition. As she has persistent nerve root irritation, she may require spinal fusion to correct her nerve root impingement and degeneration of the spine at this level.[26]
[26] PCB 65
72 Mr Ton advised the Plaintiff to have an epidural injection of steroid, which she declined. She was then referred to Dr Clayton Thomas for pain management [but apparently never attended].
73 Mr Paul Kierce Orthopaedic Surgeon examined the Plaintiff on 29 May 2009 at the request of the Defendant, having previously examined her on 21 May 2008. At that stage the Plaintiff was still attending the physiotherapist three times a week but complained of constant lower back pain which extended into her left buttock, thigh, calf and heel. After examining the post- operative MRI and performing a clinical examination Mr Kierce diagnosed:
recurrent disc protrusion at the level of the joint between the fourth and fifth lumbar vertebrae. As well she still exhibits a degree of abnormal pain behaviour as is evidenced by the global numbness of her left leg.[27]
in my opinion the worker's current symptoms are not due to functional
overlay, exaggeration, psychological or psychosomatic factors.[28]
The worker is receiving medications for pain relief and unfortunately is on a narcotic analgesic, OxyContin, with a high risk of addiction. However, in view of the persistence of the original pathology, this medication is no doubt reasonable and necessary.
[27] DCB 103
[28] DCB 104
74 Mr Kierce also considered that the Plaintiff did not have a current work capacity, is not suitable for preinjury employment or any other suitable employment. In relation to the Plaintiff's prognosis:
… Unless she has further discectomy, she is likely to suffer with persisting low back and left leg pain for many months but eventually the disc material will be desiccated and shrink so that eventually perhaps in 18 months time, there should be gradual relief of leg pain. However, the prognosis would be much better if she would agree to further surgery.[29]
[29] DCB 106
75 Mr Brian Barrett Orthopaedic Surgeon first examined the Plaintiff at the request of Dr Atick General Practitioner on 20 January 2009 and subsequently assessed her on 5 April 2011 at the request of her solicitors. In his final report, after setting out a quite detailed history, Mr Barrett concluded as follows:
…Mrs Abebe sustained a serious injury at the L4/5 lumbar intervertebral disc with an enlarging disc bulge, subsequently requiring operative decompression, Post operative x-rays confirming that most of the disc bulge had been successfully removed.
However Mrs Abebe continues to complain of quite serious discogenic low back pain and ongoing left sciatica, the sciatica probably due to the long standing pressure on the left L4 and L5 nerve roots, prior to operative decompression.
Further operative treatment of an L4/5 level decompression and fusion would considerably improve her low back pain, but it is unlikely to relieve her sciatic symptoms down the left leg and this is probably due to interstitial fibrosis within the nerve roots themselves, following prolonged compression from the disc prolapse.[30]
[30] PCB 20
76 Mr Barrett noted that the Plaintiff's ongoing low back pain and left sciatica had not significantly changed between his examinations in January 2009 and April 2011. He considered that her prognosis was poor given the limited capacity of the lumbar disc ruptures to heal or repair.
77 In his oral evidence Mr Barrett explained the process of fibrosis of a nerve root where it has been compressed for an extended period so that even where decompression takes place the patient is left with a not fully functional nerve. This is turn can lead to leg numbness, muscle weakness and impaired reflexes. I note that no other orthopaedic specialist has given a similar analysis and indeed implicitly Mr Kierce’s opinion is at odds to the extent that he predicted a gradual relief of sciatic symptoms, even without surgery.
78 Furthermore I note that Mr Barrett’s oral evidence is somewhat different to the opinion which he gave to the Plaintiff after his first examination of her, when Mr Barrett said that he explained the options available and in relation to surgery had advised:
…to seriously consider an L4-5 level decompression and fusion operation which should improve both her low back pain and her ongoing left sciatica. I also explained that even this form of operative treatment is unlikely to allow her to go back to significant physical work in the future, but at least she would be much more comfortable in her daily activities. Such an operation would improve both her discogenic pain arising from the disc rupture itself and her left sciatica, this operation allowing wide decompression of these irritated nerve roots.[31]
[31] Transcript 124, taken from Mr Barrett’s letter to Dr Abdi dated 21 January 2009 at PCB 15
79 In relation to Oxycontin, Mr Barrett also confirmed that:
It's a very powerful drug and I would not recommend that a patient takes that on a daily basis over any prolonged period of time because it's got after-effects [32]
[32] Transcript 114
80 Under cross examination Mr Barrett said that a person’s reactions will be reduced under Oxycontin, also this may not be readily apparent. He detected modest weakness of her left ankle joint dorsiflexor muscle power but otherwise did not think this would prevent her from standing on her left leg alone [which she appeared to do in the video surveillance]. Sensory testing of her left lower limb did not follow the normal dermatome pattern [which was also identified by Mr Kierce].
81 Mr Barrett was referred to his report where he referred to the Plaintiff’s pain being aggravated by prolonged sitting, standing or walking or any significant physical activity,[33] however he was not able to be more specific as to what he meant by “prolonged”. Indeed, I found much of Mr Barrett’s evidence to be of a general nature, talking about “a patient with this kind of injury” rather than the Plaintiff specifically. When asked about various job descriptions recommended as suitable employment, Mr Barrett stated quite categorically that the Plaintiff would not be capable of performing virtually any task and dismissed even the suggestion that the Plaintiff might be able to commence light work employment progressively on a part time basis. In my view these views are extreme and completely at odds with the opinions previously expressed by Mr Wilde and Mr Buzzard [prior to surgery] and Mr Jones more recently.
[33] PCB 19
82 Mr Barret also confirmed that he was not given any history about a prior transport accident.
83 Mr Ian Jones Orthopaedic Surgeon examined the Plaintiff on 11 April 2011 at the request of the Defendant. Mr Jones had available to him the radiological investigations, the affidavit of the Plaintiff, vocational assessment of Co Work and reports of Mr Wilde and Mr Tan. After clinical examination Mr Jones concluded in part:
the patient has suffered from an L4/5 disc prolapse with a history consistent with left sided sciatica. Her current complaints post surgery are of lumbar, restriction of movement and persisting left leg pain.
The prognosis for this patient given the length of time since her surgery and the nature of the problem is poor. It is likely that her complaints of back pain and restriction is will persist long-term
the patient’s L4/5 disc prolapse would be consistent with the fall described by the Plaintiff occurring during the course of her work on 10.01 05. There was no previous history of back injury or complaints.
This patient has undergone appropriate conservative and operative treatment for her L4/5 disc prolapse and sciatica. This has not resolved her lower back condition.
Although there is an option of further surgery to this patient's lumbar spine to excise what appears to be a recurrent disc at the L4/5 level given the length of time since the injury it is unlikely that this would predictably resolve complaints of back pain and left leg pain.[34]
[34] DCB 113
84 Mr Jones further noted that the Plaintiff's minor degenerative changes in the facet joints of the lumbar spine would contribute minimally to her current symptoms and level of impairment.
85 Mr Jones did not consider that the Plaintiff had capacity for her pre-injury employment and would be unfit for work requiring bending or lifting [which would include the positions of Printing Table Worker and Hand Line Operator] but would otherwise have capacity to undertake suitable employment, such as a Crossing Supervisor, Hand Packer or Pick Packer in a pharmaceutical company, subject to appropriate restrictions.
Mental or Behavioural Disturbance or Disorder
86 Dr Stella Kwong Consultant Psychiatrist initially assessed the Plaintiff upon referral by her general practitioner on 30 March 2009 and diagnosed an adjustment disorder with depressed mood, which was referable to the injuries sustained at work. Dr Kwong also recommended drug and alcohol counselling in respect of the Plaintiff's increasing dependence on alcohol.
87 Dr Kwong noted that the Plaintiff was currently taking Oxyconton SR 20mgm two per day. She had been prescribed other medications such as Efexor and Lyrica but found that these did not help.
88 The Plaintiff subsequently attended Dr Kwong in May, July and August 2010 but thereafter failed to keep her appointments until Dr Kwong made contact and asked her to attend on 21 January 2011. At that time the Plaintiff presented in a dishevelled state, appeared drowsy, admitted having taken 20mgm of OxyContin that morning and would drink whiskey gin and wine during the day.
89 Dr Kwong took a history that the Plaintiff would drink herself to sleep and the only duty she performed during the day was to take her children to and from school. She otherwise watched television and was not interested in gardening shopping or socialising. Her husband performs all domestic duties.
Mrs Abebe is still suffering from an adjustment disorder with severe depressed mood and alcoholism secondary to her physical and psychological problems.
Her treatment from me now is the prescription of antidepressant, namely
Mirtazepam 30mgm at night…
Mrs Abebe is currently psychiatrically unfit to perform any gainful
employment.[35]
[35] PCB 47-48
90 Dr M.J. Nathar Consultant Psychiatrist assessed the Plaintiff at the request of her solicitors on 12 May 2011.
91 The Plaintiff presented in a markedly different manner than that recorded by Dr Kwong in January 2011:
She was a smart looking lady, somewhat overweight who seemed to limp in and out of the interview room. She was immaculately dressed and wore a nice hat… She was otherwise well groomed…[36]
[36] PCB 53
92 In terms of her current physical symptoms she complained of:
… Continuous pain in the lower back, radiating just about the way down the left buttock and left leg. She has a lot of pain in the left ankle and foot. She described numbness and pins and needles sensations in the left heel and the bottom of the left foot. The right leg is all right.
She said that she has to change her posture frequently. She can only really sleep on the right hand side and her right shoulder has become sore because of that. She drives the car short distances.[37]
[37] Pcb 52
93 In relation to her psychological state, the Plaintiff said that she had become very depressed, has had to cease her involvement in many activities such as community work and cooking for church functions. She has lost a lot of friends and sleeps all day. Sexual relations with her husband have ceased, her memory is not good now and she has a tendency to drink alcohol.
94 Dr Nathar provided the following opinion:
Your client is suffering from a moderate degree of a chronic adjustment disorder with anxious and depressed mood associated with a moderate Chronic Pain Syndrome involving psychological factors and Gen medical conditions. She is also abusing alcohol excessively to cope with the pain[38]
[38] PCB 54
95 Dr Nathar considered that the development of her psychiatric reaction was directly related to the physical injuries suffered in the workplace. Dr Nathar recommended psychotherapy and continuation of her antidepressant medication.
96 From a psychiatric viewpoint, Dr Nathar did not consider that the Plaintiff had capacity to cope with her pre-injury employment or with any alternative employment.
Video surveillance
97 Covert video surveillance was shown depicting the Plaintiff on the following dates: 23 July and 26 July and 14 October 2010; and 27 May 2011. I will deal with these videos below.
Relevant Statutory Provisions and Case Law
98 Division 8A of the Act contains the current regime for determining whether a worker is entitled to seek recovery of common law damages for a work related serious injury. Specifically, this regime applies to injuries arising on or after 20 October 1999.
99 The Plaintiff’s application in this case relates to an alleged work related injury arising in the course of her employment and principally on 19 January 2005. Accordingly, her application falls to be determined in accordance with Section 134AB. The Plaintiff must prove in the case of each alleged injury, that it is permanent[39] and
[39] Refer definition under paragraph (a) of serious injury in section 134AB (37)
…arising out of, or in the course of, or due to the nature of, employment
…;[40] and
[40] Section 134AB(2)
First, in the case of her alleged physical injury:
… the consequences to the worker of any impairment or loss of body function… with respect to (i) pain and suffering; or (ii) loss of earning capacity, …is… when judged by comparison with other cases in the range of possible impairments or losses of a body function,… fairly described as being more than significant or marked, and as being at least very considerable;[41]
Secondly, in the case of her alleged mental disorder:
that the consequences to her with respect to (i) pain and suffering; or (ii) loss of earning capacity, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders…may be, fairly described as being more than serious to the extent of being severe.
[41] Refer section 134AB (38)(b) & (c)
100 Section 134AB(38)(h) provides:
The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
101 In addition, paragraphs 134AB(38) (e), (f) & (g) make further detailed provision as to loss of earning capacity. In particular, paragraph (e) expressly casts upon the worker the burden of establishing that he has, at the date of the hearing of the application, “a loss of earning capacity of 40 per centum or more” and that that loss will “continue permanently”. Paragraph (f) then explains how to measure the loss and paragraph (g), directs the court to bring to account the possibility of rehabilitation or re-training. Throughout, the burden of proof lies on the Plaintiff.
102 In summary, for the purpose of assessing loss of earning capacity, a Plaintiff must in effect first satisfy the requirements of paragraphs (e), (f) and (g) and then the Court must still be satisfied that the consequences to the Plaintiff of the impairment or loss of body function with respect to loss of earning capacity is, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable; and in the case of the mental or behavioural disturbance or disorder with respect to loss of earning capacity is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.[42]
[42] s.134AB(38)(d) and refer also Barwon Spinners paragraph 75
103 There are three particular areas of inquiry raised by the current application, the first of which applies in every case.
Assessment of Consequences
104 I must assess the consequences in terms of pain and suffering which the Plaintiff’s injury has occasioned to her, and determine where the facts of this case sit in the broad spectrum of cases. This task involves “a value judgment in which matters of fact and degree, and of impression, are operative”.[43]
[43] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
105 I must also take into account:
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”[44]
[44] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
106 In Haden Engineering Pty Ltd v McKinnon[45] Maxwell P. undertook a useful analysis of the kinds of considerations to which judges have routinely had regard when considering pain and suffering consequences. His Honour pointed out that the following summary was intended to be more descriptive than prescriptive.
[45] [2010] VSCA 69 @ paras 9-17; cited with approval in Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ paras 46-50
Evaluating the “pain and suffering consequence”
[T]he "pain and suffering consequence" of an injury encompasses both the Plaintiff's experience of pain as such and the disabling effect of the pain on the Plaintiff's physical capabilities (including capacity for work) and enjoyment of life ...
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the Plaintiff experiences. For this purpose, pain intensity is often classified on the scale "mild/moderate/severe". Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the
following:
(a) what the Plaintiff says about the pain (both in court and to doctors); (b) what the Plaintiff does about the pain (eg medication, rest, seeking medical treatment); (c) what the doctors say about the extent and intensity of the Plaintiff's pain; and (d) what the objective evidence shows about the disabling effect of the pain.
107 Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a Plaintiff's credit. He said:13
As to (a), the weight to be attached to the Plaintiff's account of the pain experience will, of course, depend upon an assessment of the Plaintiff's credibility. The Court will make its own assessment of the Plaintiff's credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the Plaintiff's accounts of pain.
108 His Honour recognized that an assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Maxwell P observed:[46]
As to (d), the cases recognise that some Plaintiffs may be more "stoical" than others. This means that such a Plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the "stoical" Plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the "objective" evidence of the disabling effect may be of less significance than usual.
[46] Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 by Nettle JA
109 To identify the disabling effect of pain requires an understanding both of a Plaintiff's pre-injury and post-injury employment and activities, although this does not amount to a simple comparison.[47] As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the Plaintiff's physical functioning, and interferes with the Plaintiff's enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): " ... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained."
As to capacity for work, it is necessary to identify whether and to what extent the Plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the Plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which "an area of work which [the Plaintiff] enjoyed has been closed off to [him or her]."
[47] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 49
110 Justice Tate further observed that:[48]
[48] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a Plaintiff's daily life and activities.[49] In this respect, Maxwell P said:50.
[49] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the Plaintiff's:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or
indirectly because of the effects of pain-relieving
medication);• capacity for self-care and self-management; • performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.
When judging the pain and suffering consequences for the Plaintiff by comparison with other cases, it is relevant to look at the Plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.
111 I will be guided by these principles.
Issue of Credit
112 The Plaintiff’s credibility and reliability as a witness evolved as major issues in this case. I have regard to the following authorities which are instructive as to the weight to be given to medical opinions where the credit and reliability of a plaintiff has been brought into question; and where video surveillance reveals inconsistencies with the history given by a plaintiff to doctors:
113 In Dordev v Cowan[51],
It is not surprising, however, that the appellant's credit, was the principal focus in the case, given that the respondents contended that she was, in effect, fabricating or otherwise impermissibly exaggerating the effects of the injury on her in terms of pain and suffering and ability to work. It is plain enough that the appellant's credibility was relevant not only to the question whether her own evidence in that regard was to be accepted, but it was also relevant to the reliability of the evidence on which she relied to establish a case, because the opinions of her specialists were essentially dependent on the credibility or reliability of her account of the history of the injury and its effects on her... After a comprehensive analysis of the evidence his honour concluded that the appellant was not a credible witness and that she did not give to the medical practitioners an accurate account of the history of the injury and of its effects on her in terms of pain and suffering and disability. These findings were …plainly open, … His Honour was entitled to take the view that he could accord only limited probative weight to the evidence of medical practitioners called by the appellant and little or no credence to the assessments made as to her capacity for work.
[51] [2006] VSCA 254 @ para 14 per Chernov JA
114 In Sabanovic v Atco Controls Pty Ltd[52] the court dealt with the impact of video surveillance which showed inconsistencies with the account given to examining doctors and the Plaintiff's own evidence.
… Although the appellant claimed that the pain varied and she had better and worse days, she moved with apparent ease on all the different days on which films were taken. Her demeanour also appeared inconsistent with apprehended future pain in consequence of movement.
The appellant's credit was, in our view significantly impaired by the video footage, her evidence exaggeration of symptoms to some doctors and her evasive responses in the related cross examination… The damage to her credit extends to and weakens her evidence on the severity of her symptoms, pain and the disabling effects of the carpal tunnel syndrome and detracts from the medical opinions which relied in part upon her account.
[52] 18 June 2009; (2009) VSCA 143 @ paragraphs 144 to 145
Work Capacity and Comparing With and Without Injury Earnings
115 The Plaintiff has not return to any form of employment since ceasing work with the Defendant. Accordingly, her current earnings from personal exertion are nil. It is therefore appropriate to refer to two authorities which clarify the correct approach in such a circumstance to the burden placed upon an applicant under section 134AB(19)(b).
116 The assessment of without-injury earnings, must be based upon what fairly reflects the without-injury earnings. In Hayhill v Hodge[53] referring to Barwon Spinners:
The Court pointed out that the without injury earnings are to be calculated by reference to the six-year "window" prescribed in paragraph (f), having earlier noted that the after injury earnings are to be calculated at the date of the hearing of the application. Thus, the Court said,[54] in relation to the without injury earnings, the trial judge is "required to go well beyond actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out 'as most fairly reflects the worker's earning capacity'. As it stands, that task is not inconsiderable." With respect, we agree that the task is a very difficult one and that the judge is required to explain in the reasons how he or she arrived at the amount of the after injury earnings is yet another obligation that is imposed in this regard.[55]
[53] [2006] VSCA 194 @ paragraph 5
[54] At [23].
[55] @ paragraph 5
117 The Court in Hayhill went on to clarify that where it had been accepted by the parties or determined by the trial judge that the applicant had sustained a back injury at work resulting in a permanent impairment which rendered him fit to perform light work only, then:
In such circumstances it was not enough for the respondent to rely on the fact that he had a permanent back injury which restricted him to performing light work. And the findings made by the judge were not sufficient to determine the extent of the applicant's incapacity.[56]
… the trial judge must undertake an analysis of the consequences of the respondent's incapacity. That such an analysis was undertaken and findings made which were sufficient to support the ultimate conclusion as to the consequences of the injury must be apparent from the judge's reasons.[57]
[56] @ paragraph 16
[57] @ paragraph 17
118 In Doolan v Rayners Sawmills[58] there are two points of principle worth noting for the purpose of this case:
[58] [2008] VSCA 219
119 First, the court rejected the apparent “all or nothing” basis in relation to loss of earning capacity:
The approach adopted and the absence of any persuasive figures as to earnings means that if the court were to find that the appellant has a capacity to engage in suitable employment within the meaning of the Act, then the burden of proof would not be discharged. The requirements of s134AB(19)(b) and (38)(e), (f) and (g) would not be satisfied.[59]
[59] @ paragraph 98
120 Secondly, the court focused upon the burden cast upon an applicant for the purpose of section 134AB(19)(b):
Pursuant to s 134AB(19)(b) of the Act and for the purposes of proving a loss of earning capacity, the appellant bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such disability. Although Mr Radley concluded that the appellant’s low level of intelligence and general education (year 8) and poor literacy skills suggest that he has no real capacity for higher education retraining, Mr Radley did consider that the appellant should enrol in a basic literacy and numeracy course and that he should be referred to a rehabilitation provider for vocational assistance. He did not conclude that the appellant has no earning capacity. He considered that the appellant has some potential for alternative employment of a light to medium nature. There is no evidence before the Court as to what earnings might be derived from such employment. In such circumstances and bearing in mind that the appellant has the burden of satisfying the Court of the requirements of s 134AB(38)(e) to (g) I am not able to be satisfied that the appellant has established that he has a loss of earning capacity which meets the statutory requirements.[60]
[60] @ paragraph 107
121 I now turn to the evidence with these principles in mind.
Analysis of the Evidence and Findings
122 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence, including submissions of Counsel and the tendered documents.
123 The case for serious injury has been presented on two bases: First, that the Plaintiff suffered an impairment to or loss of function of the lower lumbar spine as a result of the January 2005 workplace injury where the consequences for the Plaintiff are serious and permanent; and Secondly, that the Plaintiff suffered a psychiatric condition as a result of the same incident where the consequences for the Plaintiff are permanent severe mental or permanent severe behavioural disturbance or disorder.
124 As commonly occurs in cases such as these the Plaintiff has been subjected to examination by a great number of doctors over a prolonged period. I have no reason to believe that any of the reporting doctors have been other than thorough in their clinical examination and objective in their assessment. However, while there was consensus amongst medical opinions as to the initial diagnosis, consistent with the radiological investigations, there are quite marked differences in the medical opinions as to the nature of the ongoing physical impairment, preferred treatment, likely consequences; and work capacity.
125 The particular focus in this case was the presentation of the Plaintiff and the histories which she gave to the various doctors by comparison with other objective evidence and the Plaintiff's presentation in the covert video surveillance.
126 Plaintiff's Counsel submitted and I accept that there are certain matters which are not in dispute, namely:
a) the Plaintiff suffered a compensable injury in the course of employment in January of 2005 in the nature of a lumbar disc prolapse which required an operation but which left her with some ongoing disc pathology; and b) further surgery has been recommended in the nature of decompression and fusion which to date she has refused on the basis that it cannot guarantee success. 127 All reporting doctors have confirmed that her current medication is appropriate and in the absence of surgery, conservative treatment should continue.
128 Both Mr Kierce and Mr Barrett raised concerns about the long term use of a narcotic analgesic such as OxyContin. Mr Kierce referred to its high risk of addiction; while Mr Barrett referred to its side-effects. Significantly in this context Mr Ton referred the Plaintiff to Dr Thomas for pain management rehabilitation, which was evidently not acted upon by the Plaintiff.
129 Mr Kierce also predicted that the disc material will desiccate, perhaps over 18 months, by which time the sciatic pain will be relieved. Mr Barrett took a contrary view in his oral evidence and predicted that the sciatic pain would continue, even with further surgery.
130 Doctors Barrett, Ton and Kierce all recommend surgery to relieve back pain; whereas Mr Jones was of the view that surgery at this stage was unlikely to resolve her back and leg pain
131 I accept that the Plaintiff is entitled to refuse further surgical treatment, in particular where she has reason to be fearful that it may not improve her condition at all.
132 There were are number of potentially troubling features to this application which reflect adversely upon the Plaintiff’s credit and potentially bring into question the seriousness of her claimed symptoms.
133 First, the Defendant has raised the issue of credit in relation to the deficient histories given by the Plaintiff to examining doctors since the workplace injury. In particular, following a motor car accident and consequent brain surgery in December 2006, the Plaintiff during 2009 was assessed by various doctors in relation to a permanent impairment claim against the TAC. Under cross examination the Plaintiff generally could not recall her complaints of headaches and other psychiatric symptoms at the time and could not explain why she had not mentioned this car accident and its effects upon her to Doctors Kwong,[61] Nathar,[62] Barrett,[63] Peck[64] and Dr Hagos[65] other than to
[61] PCB 40
[62] PCB 51
[63] PCB 119
[64] PCB 57
[65] Transcript 103
[66] Transcript 39
[67] Transcript 40, 41
say that she forgot[66] or was not asked .[67] 134 The Plaintiff also stated under cross examination that she was back to normal within a year of her brain surgery.[68] There is also no mention in her affidavits of such motor car accident, the surgery or subsequent TAC claim.
[68] Transcript 38, lines 8-12
135 I accept that this matter is a significant omission and potentially a significant deficit in the histories given to examining doctors. I also accept that the Plaintiff’s evidence before the Court is not consistent with her permanent impairment claim or the histories given to examining doctors as late as 1999.[69]
[69] Report of Dr Christine Kilpatrick, 4 February 1999, DCB 242-; Report of Dr Honey dated 12 April
136 Secondly, Defendant’s Counsel sought to highlight a discrepancy between the Plaintiff’s clinical presentation on the one hand and her presentation in Court and under covert video surveillance on the other.
137 In the histories given to Doctors Kwong and Barrett in particular, the Plaintiff described herself to the effect of having become socially withdrawn and severely restricted in her mobility. She also presented to Mr Barrett and Mr Nathar with a limp and when asked whether she thought she displayed a limp in the video footage she simply said that she did limp but it was not that obvious.70
138 Dr Kwong noted as follows::
Mrs Abebe is living a very simple life these days. She drinks until she falls asleep. She could sleep from 1 AM to 6 AM without interruption or dreams. Her only household duty is to take her children to and from school during the day. She is not interested in any house work, gardening shopping or socialising. She starts her drinking after lunch71
139 Mr Barrett noted as follows:
[when re-examined on 5 April 2011 the Plaintiff]… Was moving slowly and walking with a left limp, she continued to complain of increased low back pain radiating into the left buttock area and pain in to the left lower limb down the posterior thigh, left calf to the left heel and soul of the left foot along with tingling into the left toes. These symptoms are aggravated by prolonged sitting, prolonged standing, prolonged walking and any significant physical activity and only relieved by taking analgesics and lying down. She states her pain is not improving since my earlier examination 72
140 The Plaintiff’s description of the effect of her analgesics was somewhat contradictory. While she gave a history of constant back pain to Mr Jones, she also said that the pain was completely controlled by her current analgesia, such that she could sit, stand and walk for unrestricted periods. In evidence
1999, DCB 246-; Report of Dr Kornan dated 8 September 1999, DCB 256-; Report of Dr Drury. dated 30 September 1999, DCB 270-; Report of Associate Professor McDermott dated 20 December 1999, DCB 277-; and Report of Dr Leslie Sedal dated 10 March 2000, DCB 282-. See also transcript
22-36.
Transcript 67
Dr Kwong PCB 47 on 21 January 2011; Refer also Dr Hagos evidence @ Transcript 88-89
Mr Barrett PCB 19; Report dated11 April 2011; Refer also Dr Hagos evidence @ Transcript 91-92 she also said that the tablets would stop the pain altogether.[73] However, she also said she was not fit enough to work because she would not have enough time to rest, as she does at home.[74]
[73] Transcript 17
[74] Transcript 72
141 The Flexi Report[75] also records that the Plaintiff: She does not use public transport very often, only sometimes in the school holidays with the children. [75] PCB 78
142 I agree with Defendant’s Counsel to the effect that the presentation reflected in the above reports stands in marked contrast to the picture of the Plaintiff depicted in the covert video surveillance and in Court.
143 The tendered video surveillance encompassed the following days: 23 and 26
July; 14 October 2010; and 27 May 2011; and showed the Plaintiff engaged in the following activities:
• Conversing with a stranger at the train station and on the train;[76] • Interacting with a group of lady friends from church in an animated [76] Transcript 62
manner;
• Accompanyin g a friend by train to the city to help her sort out a problem with wages;
• Travelling by train to city with a friend to attend a shoe shop;[77] • Jogging a short distance to catch the bus; • Interacting with a person in a parked car, b ending forward and [77] Transcript 61 & 67
apparently remonstrating with him with arm raised;
• Catching a train to the city and bus home after attending her solicitors; •
Walking, standing and sitting in an apparently free and comfortable manner; and
•
the Plaintiff did not appear to limp[78], although the Plaintiff said she did limp but it is not obvious;[79]
[78] as noticed by Mr Barrett and Dr Nathar cf Mr Jones recorded no limp.
[79] Transcript 67
144 Plaintiff’s Counsel contended to the effect that the evidence of video surveillance has limited probative value in the circumstances where the court is not assisted by comment from any of the treating doctors. In this regard Coun sel relied upon the following comments of Ashley AJ in Church v Echuca
Regi onal Health [80]: [80] [2008] VSCA 153, paragraph 100
I t is notable that the films were not shown to any of the doctors who had interviewed and examined the appellant on the respondent’s behalf…it provides an opportunity for medical men to contrast the patient whose history was taken, or who was examined, with the person depicted in the film. It was arguably significant that no such opportunity was given in this case. No doctor had labelled the appellant as other than genuine. Their opinions stood. The judge explained the opinions away by holding, in effect, that the appellant had not given frank and accurate accounts to the doctors. But whether any of the doctors would have expressed such a conclusion, having been shown the films, is speculative.
145 While it certainly may be helpful in particular cases to hear whether the examining doctors find the observed activities of a plaintiff inconsistent with given histories and presentation of the plaintiff, the video evidence in this case, in terms of what it objectively depicts, has not been disputed by the Plaintiff. More significantly however, the Plaintiff did not describe these kinds of activities at all to the examining doctors and indeed in the Flexi Report is recorded as saying she did not take public transport often, only in the school holidays with her children.
146 While the video surveillance is clearly not conclusive of issues in this case, in my view it is significant evidence of the Plaintiff’s capacity to engage in the activities depicted in an apparently free and easy manner without any obvious distress or physical restrictions. As mentioned during the hearing, if one did not already know the basis of the Plaintiff’s claimed injury, it would not be possible to discern any injury or restricted movement by observing the video surveillance.
epidural injection to the Plaintiff which she declined; and
147 Thirdly, Defendant’s Counsel described the Plaintiff's demeanour in court as combative and in control of her faculties. In my view, the Plaintiff presented her evidence in a feisty manner and although she did not recall many matters which were put to her in relation to her prior head injury, she was quite definite and forthright in response to other questions. Her command of English was adequate for the purpose of giving evidence and I note that when she attended Mr Jones, he records that she sent the interpreter away. The Plaintiff also sat for over 2 hours under cross examination without any apparent discomfort.
148 Overall I would describe the Plaintiff as a poor witness on her own behalf. I note the comments of Mr Buzzard[81] who recorded his difficulties communicating with the Plaintiff, which he did not attribute to the interpreter. Mr Buzzard suspected that her treating doctors may have experienced similar difficulties. The Plaintiff certainly conveyed an unfortunate attitude under cross examination, frequently given non responsive or evasive answers.
82 83
[81] DCB 63-64
149 Both Dr Hagos and Mr Barrett conceded that their assessment of the Plaintiff in large part relied upon the history given by the Plaintiff.
150 Fourthly, Counsel referred to two circumstances which might indicate a lack of seriousness in her condition:
First, Mr Ton, the treating orthopaedic surgeon, had recommended an management specialist, but the Plaintiff could not recall seeing him and her general practitioner had no record of such attendance.
151 While the Plaintiff gave evidence to the effect that she was fearful of further spinal surgery, and she preferred to try physiotherapy rather than an epidural injection, she did not give any evidence as to why she did not act upon Mr Ton.’s recommendation to attend a pain management specialist.
152 Fifthly, In relation to the Plaintiff's claimed level of alcohol consumption, she has variously given accounts that she starts drinking at lunchtime or later in the afternoon. However, she is also responsible for taking her children to school and bringing them home again; and the video surveillance clearly shows that she is capable of taking herself out and interacting with people. I find that the claimed excessive alcohol consumption is likely to be exaggerated.
Physical Injury
153 I accept that medical opinion has consistently identified the nature of the discal injury initially sustained by the Plaintiff as a consequence of her workplace injury, which is also clearly demonstrated in the radiological investigations. Furthermore, I accept that the history of pain given by the Plaintiff and clinical examinations of the Plaintiff have been consistent with such initial physical injury. It is appropriate therefore to set out a brief synopsis of medical opinions following the decompression surgery performed by Mr Ton on 28 July 2008.
a)
A subsequent MRI performed on 31 October 2008 demonstrated some residual disc bulge at the L4/5 level on the left side still pushing in to the left intervertebral canal against the left L4 nerve root;
b)
When reviewed in May 2009 Mr Ton noted significant improvement of the left leg pain but persistent low back pain. He further noted that the latest MRI demonstrated persistent nerve root irritation and that she may require spinal fusion;
c)
Mr Ton referred the Plaintiff for pain management by Dr Thomas, which was evidently never acted upon;
d)
Mr Kierce examined the Plaintiff in late May 2009, by which time she complained of constant low back pain extending into her left buttock, thigh, calf and heel. Mr Kierce predicted that the left leg pain would be gradually relieved over the next 18 months as the disc material dessicated. However she would benefit from earlier surgical fusion;
e)
Her General Practitioner Dr Hagos confirmed that in his view the Plaintiff requires continuing treatment with the powerful pain relief provided by Oxycontin as she did not cope when he tried to take her off it;
f)
Mr Barrett confirmed that while surgical decompression successfully removed most of the disc bulge, the Plaintiff still suffers quite serious discogenic low back pain and ongoing left sciatica probably due to prolonged pressure on the left L4/5 nerve roots prior to surgery;
g) Mr Barrett recommended further decomp ression and fusion at the L4/5 level which would considerably improve low back pain. Unlike Mr Kierce who considered that the sciatic pain would improve in time, Mr Barrett said that further surgery was unlikely to relieve her sciatic symptoms;
h) Mr Jones doubted that further surgery would predictably resolve complaints of back pain and left leg pain. 154 I am satisfied, on the basis of the above synopsis and more detailed opinions given in the tendered reports that the Plaintiff currently suffers from a residual disc bulge at the L4/5 level which impinges upon the left L4 nerve root, as a consequence of which the Plaintiff continues to suffer chronic low back pain and sciatic symptoms.
155 The consequences claimed by the Plaintiff have been more difficult to assess. In particular the weight to be attached to the Plaintiff’s claimed pain levels must be assessed in the context of her credibility generally. I therefore place more weight upon the presentation of the Plaintiff in the covert video than may otherwise be appropriate if the Plaintiff had been a model witness and historian.
156 Section 134AB(38)(h) provides to the effect that only the pain and suffering consequences from the organic injury to the Plaintiff’s lower back may be taken into account. In this case psychological factors, comprising symptoms of depression, anxiety and frustration appear to have fluctuated and complicate an assessment of consequences from the organic injury alone. This is particularly relevant to an assessment of earning capacity.
157 I must determine whether the limitations and restrictions with respect to pain and suffering to which the Plaintiff is now and will remain subject, constitute a consequence which can be fairly described as being more than significant or marked, and as being at least very considerable when judged by comparison with other cases in the range of possible impairments. In my view, notwithstanding significant reservations identified above, on balance, taking the evidence as a whole, the consequences can be so described.
158 It is appropriate at this point to recall the qualification to serious which was made in Humphries v Poljak. To be “serious” the consequences of the injury must be serious to the particular applicant.[84] Accordingly, the same consequences can assume a markedly different significance from one applicant to another depending upon such factors as age, prior state of health and level of activities.
[84] Crockett and Southwell JJ @ 140
159 In the Plaintiff’s case, even allowing for a degree of exaggeration I must accept that she is currently reliant upon Oxycontin for pain relief and her domestic and social life have been adversely affected in most of the ways described by the Plaintiff. All reporting doctors have accepted that the current level of vertebral pathology would be likely to produce chronic lumbar pain and sciatica. Accordingly, I am satisfied that the pain and suffering consequences of the Plaintiff’s organic back injury constitute a serious injury as defined.
Mental Disorder
160 In relation to the claimed mental disorder I note that the Defendant did not seek to rely upon any current psychiatric assessment of the Plaintiff. However, the tendered material includes a number of medical opinions referable to the Plaintiff’s previous transport accident in 1996. In particular I note that:
a) In April 1999 Dr Honey Psychiatrist diagnosed mild Post Traumatic Stress Disorder;[85] and b) In September 1999 Dr Kornan Psychiatrist diagnosed an anxiety state
with phobic anxiety features and depression.[86]
[85] DCB 250
[86] DCB 258
161 The significance if any of these prior diagnoses is difficult to assess. However, as a matter of credit, it is significant that the Plaintiff denied any prior psychiatric history to both Dr Kwong and Dr Nathar.
162 Dr Kwong was the Plaintiff’s treating Psychiatrist. When Dr Kwong last saw the Plaintiff in January 2011 she considered that the Plaintiff was still suffering from an adjustment disorder with severe depressed mood and alcoholism secondary to her physical and psychological problems.
163 By May 2011, the Plaintiff appeared markedly improved in her physical presentation when assessed by Dr Nathar who diagnosed a moderate degree of a chronic adjustment disorder with anxious and depressed mood associated with a moderate Chronic Pain Syndrome involving psychological factors and general medical conditions. He noted that she was also abusing alcohol.
164 The Plaintiff has ceased attending Dr Kwong and currently takes no antidepressant medication.
165
In my view the evidence of a mental disorder is very tenuous. To the extent to which the Plaintiff may suffer a degree of psychological anxiety and depressive symptoms, they do not nearly reach the threshold of being serious to the extent of being severe. In reaching this conclusion I have had particular regard to the following:
a) The Plaintiff apparently voluntarily ceased psychiatric counselling and is
no longer taking any anti depressant medic ation; b)
Her level of alcohol abuse is quite unclear, having regard to the parental responsibilities to which she otherwise admits; the variable accounts which she has given to doctors; and her presentation to doctors and in the video surveillance; and
c)
The covert video surveillance depicts the Plaintiff in an outgoing and confident manner: she is animated and smiling as she engages in conversation with friends and acquaintances.
Work Capacity and Loss of Earnings
166 The work capacity assessments and medical opinions to which I have briefly referred to above are irreconcilable to the extent that they range from no capacity for any kind of work, even part time, to a capacity for suitable employment, with appropriate restrictions.
167 In my view it is significant that the Plaintiff has made no reasonable effort to seek re training or suitable employment of any description in the 6 years since this accident and in over 3 years since the surgery that was undertaken in July 2008. She admitted that she has not looked in the local papers, or in the metropolitan papers;[87] and she has not registered with any employment agency.[88] She has made one attempt to improve her English,[89] but could not bother herself to do more.
[87] Transcript 49 & 71
[88] Transcript 49
[89] Transcript 51-52
168 The Plaintiff is still a relatively young woman who has previously completed 12 years schooling. If she had undertaken training to improve her English literary skills; training to give her even basic computer skills; and/or training to give her basic administrative skills then the range of potential semi skilled sedentary positions could have been considerably broader.
169 For the purpose of assessing loss of earning capacity, a plaintiff must in effect first satisfy the requirements of paragraphs (e), (f) and (g) of section 134AB(38) and then the Court must still be satisfied that the consequences to the plaintiff of the impairment or loss of body function with respect to loss of earning capacity is, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being
90
more than significant or marked and as being at least very considerable.
170 In my view the Plaintiff in this case has not discharged the onus upon her in respect of the requisite loss of earning capacity for the following reasons:
a) By reason of the issues of credit and reliability of the Plaintiff’s e vidence and limited histories given to doctors, as outlined above, I can reasonably
infer that the Plaintiff has exaggerated her pain and physical limitations;
b)
I agree with Defendant’s Counsel that there has been no compelling evidence as to why the Plaintiff has not undertaken re training or sought out possible suitable employment, even on a part time basis; and
c)
I also agree with Defendant’s Counsel to the effect that greater weight should be given to the Co Work report having regard to the qualifications of the authors. I accept their analysis that the positions such as Hand Line Operator; and Hand Packer are potentially suitable employment. However, if further relevant re training had been undertaken, then the range of suitable employment could have been considerably expanded.
Comparison of With and Without Injury Earnings
171 Both Counsel made extensive, if somewhat conflicting submissions concerning calculation of economic loss.[91] Parties were also extended the
[91]
[92] Plaintiff’s Counsel submission dated 23 June 2011; Defendant’s Counsel submission dated 10 June 2011
op portunity to make written submissions .[92] De fendant’s Position 172 The Plaintiff’s tax returns show the following pre injury income:
2001: $8,149 gross
2002: $ 36,807 gross
2003:maternity leave No Tax Return
2004: $29,087 gross ? [maternity leave]
2005 $31,947 gross173 Defendant’s Counsel submitted that any fair reflection of the Plaintiff's pre injury earning capacity is the average of gross earnings for the financial years 2001, 2002 and 2005, which gives a figure of $25,634 per annum. Allowing a 3% indexation for three years will bring that figure up to $28,011 or $538 gross per week of which 60% would be $323 gross per week.
174 The with injury earnings is calculated in the CoWork report by reference to three recommended jobs, only one of which was endorsed by Mr Jones, being Hand Packer. Taking these two reports together, Defendant’s Counsel
sub mitted that the position of Hand Packer, which yields $739 gross per w eek; would take the Plaintiff over the threshold.
175 The Co Work report states that the position of Hand Packer in the Pharmaceutical industry:
…is a container filling role and …provides the options of standing or
sitting to alternate postures and is within the lifting restrictions.[93]
[93] DCB 207
Plaintiff’s Position
176 Plaintiff’s Counsel submitted that a fairer approach to the calculation of without injury earnings should be based upon the rate at which the Plaintiff has been paid weekly compensation which would result in $48,602 gross per annum for the 3 years after the workplace injury.
177 The Defendant acknowledges that in a typical week between July and October 2004 the Plaintiff’s gross weekly wage was about $830 per week or at the rate of $43,186 per annum.
178 In the circumstances of this case I agree that a fairer calculation of the Plaintiff’s without injury earnings, would be in the range of $43,186 to $48,602 gross per annum, which reduced to 60% would give a threshold “with injury” earning capacity of between $498 and $530 per week. Clearly two of the positions recommended by CoWork, if accepted, would exceed both of these figures.
179 Plaintiff’s Counsel submitted that the opinion of Mr Jones, who endorsed the position of Hand Packer, should be rejected on the basis that he was not
prov ided with a task analysis in respect of the physical and other requirem ents
of th e job, as set out in Exhibit 6. Furthermore, Plaintiff’s Counsel sugg ested that Mr Jones went beyond his particular area of expertise by effect ively
recom mending particular suitable employment rather than focusing upo n the
Plain tiff’s physical restrictions. In this regard Counsel referred to the
obse rvations of Hargrave AJA in Giankos v SPC Ardmona Operations Ltd :[94] [94] @ paragraphs 96 & 97
E xpert opinion evidence must relates to matters which are wholly or substantially within the expert’s field of expertise.[95] It follows that medical opinions about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall outside the doctor’s area of expertise. Mr Horton’s opinion that ‘he would have thought’ that the appellant was fit to return to forklift driving, comes close to transgressing this boundary.
On the other hand, if the tasks required in a particular job are analysed by reference to the physical capacities required (for example lifting weights or unwrapping pallets), a medical practitioner is qualified to express an opinion about whether a person with a particular impairment has the physical capacity to perform that particular task. The questions asked by Mr Grossbard and Mr Flanc about the tasks proposed in the Recovre Report are examples of the approach which should be taken by a medical practitioner asked to express an opinion on an injured person’s work capacity.
[95] J D Heydon, Cross on Evidence (8th Australian ed, 2010) [29043].
180 In my view the CoWork report has analysed in detail the work duties of particular positions having regard to physical limitations and restrictions previously identified by Mr Wilde, prior to her surgery, that she should avoid any employment involving: bending, lifting or twisting carrying more than 5 kgms. I otherwise find this report to be both comprehensive and objective and to be preferred to the report of Flexi Personnel.
Conclusion
181 I find that the Plaintiff has suffered an injury to her lumbar spine as a result of her employment with the Defendant and I am satisfied on the balance of probabilities that the consequent impairment to the lumbar spine is both serious and long term within the meaning of paragraph (a) of the definition of serious injury of the Act. I am satisfied on the balance of probabilities that the consequences to the Plaintiff in terms of pain and suffering, when judged by comparison with other cases in the range of possible impairments or loss of body functions, may fairly be described as being more than significant or
marked, and as being at least very considerable.
182 I am not satisfied on the balance of probabilities that the Plaintiff does have a total incapacity for any kind of suitable employment. I am not satisfied that the Plaintiff has proven a loss of earning capacity of a least 40% of the earnings which would most fairly reflect her capacity if her injury had not occurred;
183 I am not satisfied on the balance of probabilities that the consequences to the Plaintiff in terms of both pain and suffering and loss of earning capacity in respect of any mental or behavioural disturbance or disorder is more than
se rious to the extent of being severe. Orders 184 214BThe Plaintiff is granted leave pursuant to section 134AB(16)(b) of the
Accident Compensation Act 1985, to commence proceedings for the recovery of damages for pain and suffering only in respect of her claim relying upon paragraph (a) of the definition of serious injury in respect of an injury to her lower lumbar spine on 19 January 2005 in the course of her employment with the Defendant.
185 215BAfter giving the parties the opportunity to make written submissions on the
question of costs, none of which were submitted, the following orders were
made:186 216BOrder that the Defendant pay the Plaintiff’s costs of the proceeding, including
reserve costs, on County Court Scale D to be taxed in default of agreement;
187
217BCertify for:
a) 218BTwo Counsel for the Plaintiff; b) 219BSenior Counsel’s brief fee of $5,500; c) 220BJunior Counsel’s brief fee on scale; and d) 221BThe reasonable costs of the preparation, filing and service of court books, the first copy at scale and each subsequent necessary copy at the commercial printing rate determined by the Costs Court, including any necessary attendances.
DCB 60
DCB 113
Hadden Engineering Pty Ltd v McKinnon [2010] VSCA 69 @ paras 16 to 17
Transcript 90-91
Transcript 120
| 90 |
|
0