Acar v David Jones Ltd
[2010] VCC 1028
•6 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01381
| MERIH ACAR | Plaintiff |
| v | |
| DAVID JONES LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8, 9 and 10 June 2010 |
| DATE OF JUDGMENT: | 6 August 2010 |
| CASE MAY BE CITED AS: | Acar v David Jones Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1028 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – injury to low-back and lumbar spine – claim for pain and suffering damages only – application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan with | Zaparas Lawyers |
| Mr R Stanley | ||
| For the Defendant | Mr D Myers | Wisewould Mahony |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 23 June 2004.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
5 The body function relied upon in this application is injury to the low-back and lumbar spine.
6 The plaintiff relied upon two affidavits, sworn 10 November 2008 and 26 August 2009, and an affidavit of Ayse Ozdemir sworn 26 August 2009. The plaintiff and Mr Peter Dohrmann, neurosurgeon, were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.1
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999.2
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.3
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: “… satisfied by reference to the consequences to the worker of any impairment or loss of body function … with respect to pain and suffering … when judged by comparison with other cases in the range of possible impairments or losses of a body function.”
(d)
under s.134AB(38)(c) of the Act, an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked and
as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments. As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:4
“The emphasis in s 134AB (37)(c) and (d) [38(b) and (c)] is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”5
10 The test for “severe”, as set out in paragraph (b) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
11 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application
S.134AB(19)(a) of the Act
S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
Barwon Spinners (op cit) at paragraph [33]
[2009] VSCA 181
Ibid at [42]
is heard.[6]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[7]
[6] S.134AB(38)(j) of the Act
[7] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
12 Counsel for the defendant informed the Court that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s Evidence
13 In her first affidavit sworn on 10 November 2008, the plaintiff deposes that:
•
She was born on 10 August 1968 in Turkey. When she was five years old she immigrated to Australia with her parents. She was educated in Melbourne, completing Year 12 on her second attempt. She studied Computer Technology at Dandenong TAFE for one year. She is currently married with two children, a son aged fourteen years and a daughter aged ten years.
•
She has been in employment, other than for a period of six years in which time she had two children.
•
In 2000, she commenced employment with the defendant, David Jones Limited, working as a sales assistant, and then as a sales supervisor in the women’s clothing department. She was working for the defendant for nine days per fortnight, earning approximately $750 gross per week.
•
On 23 June 2004 at 1.00 pm, she was unpacking clothes from boxes, putting them on coat hangers and hanging them on rails. She had completed unpacking six to eight boxes of jumpers, which she had hung on rails about 1.75 metres from the floor. She then completed unpacking about four boxes of blouses, hanging them on a rail about 2 metres from the floor. As she lifted one of the bundles of blouses and went to place the hooks over the rail, she suddenly felt a burning pain in her lower back. She was standing on her toes at the time so that she could reach the rail, because there was no step-up available.
•
After experiencing her back pain, several co-workers tried to help her out of the storeroom, but she found this too painful. First aid and an ambulance were called. She was given gas, put on a stretcher and taken to the Monash Hospital.
•
At the Monash Hospital, x-rays were taken. She was given painkillers and discharged late that evening. She made an appointment to see Dr Szyman, her general practitioner, on 25 June 2004. Dr Szyman provided her with further medication, time off work and referred her for physiotherapy. She undertook physiotherapy and hydrotherapy after the injury, ceasing both when she attempted to return to full-time work with the defendant in late 2005.
•
On 3 August 2004, she returned to work with the defendant on a part-time basis, answering telephones in reception for four hours per day, two or three days per week. By late 2005, her hours had increased to eight hours per day, five days per week, and she was transferred to the children’s wear department.
•
She worked with discomfort, taking Panamax or Nurofen every six to eight hours, as well as anti-inflammatories. As a result of her back pain, she was required to walk around every thirty minutes to stretch her back. She would also complete exercises several times a day. If she failed to complete these exercises her back became very tight and sore. Her manager did not like her walking, stretching or completing exercises for her back, and made this known. On 4 November 2005, her manager abused her in front of customers. She became upset and had to leave work. She saw Dr Szyman, who referred her to a psychologist and prescribed Valium for several months. She was put off work.
•
On 14 November 2005, she commenced seeing Ms Selvi, a psychologist, about once a week for eight months. These sessions helped her calm down, but she did not feel she could go back and work for the defendant, and Ms Selvi agreed.
•
In February 2006, she and her husband purchased an ongoing business, renting Turkish videos and movies at a store in Noble Park. She felt that she could assist in the running of this business more easily than being employed because she could move around as required and her husband could cover her if she was unable to work. On average, she is unable to work because of her back pain around two or three days per month. She takes Panadeine or Nurofen to manage her pain at work. The shop is open from 11.00 am to 8.00 pm Tuesday to Sunday. She normally works from 10.30 am to 3.00 pm. Her husband usually stocks the shelves.
•
She has pain in her lower back most of the time. In the morning her back is stiff, but not initially painful, and after she has a hot shower, she completes stretching exercises to free up her back. She usually develops back pain during the day, and by early afternoon it is constant. The pain seems to spread intermittently into her right buttock and down the back of her right leg to her calf.
•
Prolonged sitting or standing is likely to worsen her back pain. She can only sit for around forty minutes before experiencing increased discomfort. Provided she can move around, she can usually stand for around an hour before experiencing worsening back pain. She cannot stand in one spot. She tries to avoid lifting and substantial bending as these actions can make her back pain worse. She can walk, but after forty minutes she usually experiences more back pain. She used to take her children for long walks in the Dandenongs once a month, but she is no longer able to do this. When she walks, she is now careful where she places her feet to avoid jarring her back. Sneezing also increases her back pain.
•
She can drive a car, but after thirty minutes she feels the need to stop and stretch her back. The prolonged sitting and twisting of her body looking for traffic, and the use of her right foot, increases her discomfort. She is only likely to drive for over thirty minutes when she travels to Thomastown to visit family, which she does every two months. If she is travelling into the city, she prefers to catch a train. She also prefers to be a passenger in a motorcar, as opposed to a driver.
•
She finds it difficult to get comfortable and to get to sleep. She now sleeps on her stomach, whereas before the accident she would sleep on her side. In the morning, she always wakes up stiff but not necessarily in pain. She dresses herself slowly and finds putting her socks on the hardest. She is unable to bend far enough and for a sufficient length of time to cut her own toe nails, and so she instead gets a pedicure.
•
She drives her children to and from school. Since her injury, her children have learnt to get their own breakfast and make their own lunch. Her mother lives fifteen minutes away and now cooks most of the evening meals. She does the washing and uses an indoor clothes horse for most drying, but her husband hangs the larger items outside. She strips and makes the beds with her husband. She cleans the shower and toilet by spraying them with cleaner and then showering or flushing. Her husband does any scrubbing required. She has never been much of a gardener and her husband always did the gardening.
•
Since the injury, she is no longer able to enjoy the following activities as she used to: walking and playing with her children; shopping and browsing; socialising with friends; reading in bed, as after fifteen minutes of lying on her back or stomach she is in discomfort, and engaging in sexual activity with her husband, which has affected her relationship with her husband.
14 In her second affidavit sworn 26 August 2009, the plaintiff deposes that:
• Since swearing her first affidavit, she believes her back pain that spreads into her right buttock has worsened. She continues to have intermittent discomfort in her right calf. She experiences some back pain at all times, and two or three days per week the pain is much worse, at which time all movements are painful. 15 In the affidavit of Ayse Ozdemir, sworn 26 August 2009, she deposes that:
•
She met the plaintiff through being a customer of her video shop and has known her for about three years. They have become good friends and have talked about the plaintiff’s back pain.
•
She has noticed that the plaintiff moves her weight from one leg to another when standing, and she moves around a lot when she is sitting and then gets up and stretches for a while. She sees the plaintiff moving stiffly, and frequently looking in discomfort.
•
When she travels in the car with the plaintiff, she needs to stop about every thirty minutes so that the plaintiff can stretch. If they are out for a long time, the plaintiff is in a lot of pain by the end of the day. There have been times when she has had to help the plaintiff out of the car after a long drive.
The Plaintiff’s Medical Evidence
16 On 7 November 2004, Dr Derrick Szyman, the plaintiff’s general practitioner, said he reviewed a CT scan of the plaintiff’s lumbar spine of 18 August 2004, which reported:
“Bilateral L5 pars interarticularis defects without evidence of spondylolisthesis. A mild broad-based disc bulge is seen at L5/S1 without evidence of impingement upon the theca or exiting nerve roots.”
17 It was Dr Szyman’s view that the plaintiff had low-back and right leg pain, that the CT scans showed longstanding pars interarticularis defects and an L5-S1 disc bulge. He thought her pain was arising from the L5-S1 disc and had been precipitated by her injury at work. He accepted that the injury was work- related, and when he saw the plaintiff on 14 October 2004, he thought she was fit for part-time work which did not involve heavy lifting, and where she could alternate between sitting and standing duties. He expected that she would be able to return to her normal duties over the next three months.
18 An MRI scan was performed on the plaintiff on 23 November 2004 and the conclusion was:
“Disc degeneration at the thoracolumbar junction and lower lumbar spine. No focal disc protrusion or significant central or foraminal stenosis seen. There are bilateral undisplaced L5 pars defects.”
19 The plaintiff was seen by an orthopaedic surgeon, Mr Peter Wilde, in December 2004 at the request of Dr Szyman. Mr Wilde considered that the plaintiff’s L5 pars defect may have become symptomatic, causing her current symptoms, but that this was not definite. As the plaintiff was improving, no active intervention was suggested, but corticosteroid injection was mentioned if she failed to settle.
20 On 11 March 2005, Dr David Vivian, a pain management specialist, said that he had seen the plaintiff on referral from Dr Szyman. He noted that the plaintiff could only bend to 30 degrees touching her knees. He considered she needed to be more aggressive with stretching and exercise and said a caudal injection could be beneficial.
21 In March 2008, Dr Szyman said that the plaintiff left her employment with the defendant in February 2006 and since that time her condition had been static. She continued to have variable low-back and leg pain which worsened with heavy activity and improved with rest. Treatment consisted of “simple” analgesics and back exercises. The plaintiff’s back stiffness appears to worsen when she is not doing her exercises regularly. He considered that her pain was related to the L5 pars defects and the adjacent L5-S1 disc. He said that the plaintiff needed to continue with regular back exercises and that while other treatments, such as a corticosteroid injection, have been suggested in the past, they have not been pursued as the plaintiff’s back pain had settled sufficiently for her to return to work and not require active intervention. He thought her condition was static but he felt it could be improved with a more consistent exercise program.
22 On 29 June 2009, an MRI scan of the lumbar spine was performed at the request of Dr Szyman. The conclusion was:
“Multilevel degenerative disc changes. Small left posterolateral disc protrusions are seen at T11/12 and T12/L1 with mild narrowing of the left side of the spinal canal but no neural impingement. There is a moderate central posterior disc protrusion at L4/5 with mild narrowing of the canal but no neural compromise.”
23 In November 2009, Dr Szyman reported that the plaintiff’s low-back and right buttock pain was arising from the disc protrusion at L4-5. He said she was unable to sit or drive for prolonged periods and she should avoid repeated bending and lifting. He considered the restrictions were likely to persist indefinitely and that she could perform light work where she was not required to bend and lift. Her current work arrangements were appropriate.
24 On 14 October 2009, Mr Brian Barrett, an orthopaedic surgeon, said he had seen the plaintiff on 23 September 2009 at the request of her general practitioner. She was complaining of intermittent low-back pain and pain radiating into her right thigh, to her knee joint level, with occasional pins and needles into the same right thigh.
25 It was Mr Barrett’s view that the plaintiff had an unusual combination of lumbar spinal problems. First, a longstanding L5 level spondylosis, which is usually associated with some disruption and desiccation of the L5-S1 disc, but not so in her case, and was not associated with any forward slip or spondylolisthesis. She had a disruption involving the L4-5 lumbar intervertebral disc producing a moderate disc bulge and in close relationship to both L5 nerve roots. He said that while the bilateral L5 level spondylolysis was present on radiological investigations in August 2004, it was not certain that it was as a result of the bending and lifting activities at work. He could not say how long the lumbar spondylosis had been present. He said that the L4-5 lumbar disc disruption and posterior disc bulge appeared to increase between the two separate MRI films taken in November 2004 and June 2009. He said the lifting episode with the defendant must represent some contributing factor to her ongoing symptoms but he said an assessment of aggravation is difficult to judge.
26 His diagnosis was that of an L5 level spondylosis, without significant slip or spondylolisthesis, and in addition, some L4-5 lumbar disc disruption and bulging. He thought the plaintiff was fit to manage light alternative work up to a near full-time degree, while avoiding prolonged stooping and heavy lifting situations. In the absence of heavy physical lifting, bending and pushing, her prognosis should be satisfactory.
27 In June 2009, Mr Bruce Love, an orthopaedic surgeon, examined the plaintiff at the request of her solicitor. He reported that the plaintiff had a restricted range of movement, with 30 degrees of flexion. He considered her symptoms were consistent with a diagnosis of degenerative changes at the L5-S1 level and, in particular, bilateral L5 pars interarticularis defects and evidence of spondylolisthesis. He thought she was likely to suffer from the pain permanently, her employment was appropriate and he did not expect that she would return to the work she was doing at the time of the onset of her symptoms. However, Mr Love’s report is of little assistance to the plaintiff as he had not reviewed the x-rays and scans. He referred to the “accompanying documentation” which he said showed “evidence of spondylolisthesis”. In fact, the MRI scan of 18 August 2004 said “Bilateral L5 pars intra-articularis without evidence of spondylolisthesis” (my emphasis).
28 In October 2009, Mr Peter Dohrmann, a neurosurgeon, examined the plaintiff on behalf of her solicitors. The plaintiff complained of pain deep in the right buttock, with extension down the posterior aspect of the right side to the level of the knee. The pain does not normally radiate to the calf, though it has done so in the past. Midline low-back pain is not a significant component, though it does occur.
29 The plaintiff told Mr Dohrmann that her current treatment included hydrotherapy and the use of Panadeine Forte and Voltaren. She does not use the Panadeine Forte on a daily basis but uses Panamax.
30 Mr Dohrmann diagnosed a chronic low-back pain with referred right leg pain associated with bilateral pars defects of L5 without evidence of radiculopathy. He noted that the first MRI scan of 2004 showed no evidence of any significant lumbar disc lesion, notwithstanding the presence of pars defects.
31 In the most recent MRI scan, the plaintiff had developed a central disc protrusion at L4-5. He thought it unlikely that her employment had caused the L4-5 disc prolapse to occur. He said:
“However, when a person like Mrs Acar describes the sudden onset of pain while performing a certain physical task and subsequent investigations revealed the presence of pars defects, it is difficult if not irresistible sometimes to make a connection between the two. It is not normal to have persistent back and buttock pain. It is not normal to have pars defects.”
32 Mr Dohrmann thought it highly unlikely that the plaintiff’s employment caused the pars defect, but said it was conceivable that her employment has been responsible for the onset of symptoms referrable to the pars defects which have persisted to the present time. He said there appears to be no evidence of spondylolisthesis occurring to date, suggesting that the spine is structurally stable. He said her prognosis was reasonable, but that she will continue to experience back and buttock pain on an indefinite basis. He thought the degree of disability related to the original work-related injury is, in this case, persisting but relatively mild in nature.
33 Mr Dohrmann was cross-examined. He said at the time he saw the plaintiff her spine was structurally stable, but that did not necessarily mean forevermore. He agreed that there was no sign of the disc prolapse being related to the work injury. He agreed that a corticosteroid injection was not a dangerous procedure. In relation to medication, he said that Panadeine Forte contained codeine and was the strongest of the everyday analgesics. Panadeine was the intermediate, and Panadol the entry level.
34 Mr Dohrmann agreed that a person with a lumbar flexion of 30 degrees would have a two-thirds loss of flexion and would not be able to pick something up off the ground without kneeling or squatting. He said when he examined the plaintiff in October 2009, she did not tell him that she had a requirement to take time off work.
35 Mr Dohrmann gave his evidence in a clear, forthright and logical manner. His reasoning was most persuasive.
36 In 2009, the plaintiff was medically examined by Mr Charles Flanc, a vascular and general surgeon, at the request of her solicitors. The plaintiff complained of low-back pain which spreads down into her right buttock. There has been improvement in the severity of her pain compared to the pain she was suffering during her employment with the defendant. He considered that the episode on 23 June 2004 resulted in a significant aggravation of pre-existing disc degeneration of the lumbar spine, probably at the L5-S1 level, and that this aggravation has continued to the present time. By aggravation, he meant that the degenerative condition of her lumbar spine at this level would have been present for some years and was not symptomatic, but became symptomatic as a result of the accident on 23 June 2004. Degeneration at the L4-5 disc may be an alternate source of pain. He said that the MRI scan of 23 November 2004 considered there was “minimal loss of signal intensity without loss of disc space height from L3-4 to L5-S1”. He said this suggests that there was probably some degree of disc degeneration at the L4-5 level even at that time. He said her condition had stabilised and the prognosis for substantial improvement is poor and that she is unlikely to require surgery. He considered she could continue with her present employment indefinitely. He considered that she would not be able to return to her pre-injury duties.
37 On 26 November 2009, Patricia Grundy, a consultant physiotherapist, reported at the request of the plaintiff’s solicitors. She considered that the plaintiff’s low-back condition and related symptoms were consistent with her work-related injury. She thought that they were caused by the mild broad- based disc bulge at L3-L4 and the mild broad-based disc bulge at L5-S1, without evidence of impingement upon the thecal sac or existing nerve root. She considered that the plaintiff was not fit to return to pre-injury employment and that she could return to her alternate work duties provided that they did not involve repeated bending, twisting, stretching, reaching and lifting and or prolonged standing and or sitting in one position for prolonged periods. She considered that she would always have symptoms which may be able to be controlled with appropriate exercises.
The Defendant’s Medical Evidence
38 On 27 March 2009, Mr Ian Jones, an orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. He was of the view that the plaintiff suffered from a previously undiagnosed and apparently asymptomatic congenital condition of lumbar spondylolisthesis. This condition led to the premature degeneration of the L5-S1 disc and he believed this was the source of her right buttock and back pain. He considered that the spondylolisthesis and disc degeneration had not been caused by work. The incident where she was standing, reaching up to the rails had precipitated pain in the area. He considered she will continue to experience lumbar back pain symptoms to the same degree, with some degree of variation depending on the demands she makes on her lumbar spine, and he did not consider her condition will resolve or improve significantly with the passage of time.
39 In a report of 4 September 2004, Mr Clive Jones, an orthopaedic surgeon, said that the plaintiff was able to extend fully and flexed almost normally on examination. He had not seen any investigations but thought she had sustained a disc straining injury, that the symptoms came on at work and he regarded her employment as a significant contributing factor. He thought it unlikely that there would be any permanent impairment and she would not need surgery.
40 In a report of 5 April 2005, Dr Nitin Dharwadkar, a psychiatrist, said the plaintiff suffered from a mild adjustment disorder with anxiety symptoms. Her psychiatric condition is secondary to the physical injury.
41 On 13 February 2007, Dr Michael Baynes, a specialist in occupational medicine, said that the plaintiff’s work had likely been a contributing factor to the aggravation of a pre-existing injury. He thought that the work injury had ceased and the ongoing symptoms were related to pre-existing pathology. He recommended the plaintiff continue with a home-based exercise program. He considered she had suffered a minor injury and hoped that there would be significant improvement in the future.
42 In a report of 26 February 2008, Mr Peter Battlay, an orthopaedic surgeon, noted that on examination, the plaintiff performed forward flexion to 30 degrees, extension to 10 degrees and lateral flexion to either side to 10 degrees. The plaintiff told him that she had no pain spreading to the right leg, but some pain in the right buttock. He thought she had a mild lower-thoracic disc degeneration. He thought the impairment of the back had stabilised and said it was permanent.
43 On 19 October 2009, Mr Brendan Dooley, an orthopaedic surgeon, said that the plaintiff had continued to experience mild to moderate back pain but has had no referral pain to either leg. The main pain is the right buttock and lower lumbar spine centrally. Occasionally, there is some discomfort at the back of the right thigh but the pain never radiates into her right lower leg or foot. She was undergoing no treatment. She attends a swimming pool for an exercise program two or three times a week. She keeps medication to the minimum. He considered her condition had stabilised. He said the exact pathology was uncertain, that the probabilities were that her low-back symptoms related to aggravation of longstanding pre-existing spondylosis affecting the fifth lumbar vertebrae and involving the pars interarticularis bilaterally of the fifth lumbar vertebrae without neurological involvement. He thought the prognosis was probably good. He said there was no evidence of spondylolisthesis involving the L5-S1 articulation and there was no evidence of neurological involvement. He thought the condition of spondylosis was either congenital or developed in early adulthood. He did not consider the condition had developed because of the incident at work.
44 Mr Dooley considered it was difficult to state the relationship between the plaintiff’s current condition and the work injury, because the assessment depends upon the plaintiff’s statements that she has continuing discomfort in the lumbosacral region of the spine. However, clinically she has no evidence of neurological involvement and there has never been any evidence of spondylolisthesis occurring in the area of the lumbosacral articulation. He considered that she will gradually recover naturally over a period of one to two years.
Cross-examination of the Plaintiff
45 In cross-examination, the plaintiff agreed that in November 2008, she was not taking medication daily, and that she had not sought recovery of all her medication expenses. She agreed that in November 2008, she had told doctors that she was having pain in her lower back most of the time, and intermittently into her buttocks, and that that had not changed. Yet she told the Court she has pain “all the time”.[8]
[8] Transcript 11
46 The plaintiff agreed that when seen by medical practitioners, she demonstrated a very limited ability to bend to about 25 per cent. Mr Dohrmann’s evidence was that if a patient had a 30 per cent loss of flexion in bending, then the patient would not be able to pick something up off the ground without squatting or kneeling. The defendant showed a video where the plaintiff picked something up off the ground without squatting or kneeling.
47 The plaintiff was asked about walking. She said she walked more carefully and walked slowly with a cautious gait. She looked down at the ground. I accept that her description of walking does not match the video, which showed the plaintiff walking in a brisk fashion without looking down at the ground. In answers to questions put to her after the video was shown, the plaintiff said before the accident she was a very fast walker, and her kids complained at the pace at which she walked. She said she probably walks fast, but not as fast as previously.
48 The plaintiff agreed that she should have returned to Mr Wilde and Dr Vivian for injections if her problems did not settle. She said she did not have injections because they were to be positioned in a dangerous spot. Yet Mr Dohrmann said such an injection was not a dangerous procedure.
49 The plaintiff agreed in cross-examination that she does her daily chores but with pain. She goes shopping, but needs help with her shopping most of the time. She said she took Panamax regularly, although she is now taking Panadol and Mobic.
50 The plaintiff was asked about what she told Mr Clive Jones in September 2004. His history was that:
“Early on, she had some pain down the legs but this had improved. Her
current problems relate to her back only.”
51 The plaintiff said she could not remember saying that. She said at the moment it has not improved:
“It’s still in my back and in my buttocks and it does run down my leg as it
is at this time.
Q: How often?--- A: How often, every day. Q: Every day?--- A: Every day. Q: How long has it been like that for?--- A: It’s been like that since the day of the injury. There are days
where it’s worse.Q: Because you tell various people that you no longer suffer any leg
pain, such as Mr Jones?---A: I’ve never said that. Q: You never said it?--- A: No. Q:
He says in September 2004 the back is now better than it was, and you are able to walk, sit and stand with reasonable comfort, and that your symptoms seem to be fairly minor at that time.
A: No?--- Q: No. A: I can’t remember it sorry, back then I’ve always had my pain. Q: When you say ‘my pain’, you mean pain, do you?--- A: My pain, as in my back pain and my buttocks. It goes down to my
leg.”[9][9] Transcript 25
Surveillance
52 I was shown a number of videos of the plaintiff taken over thirty-seven hours. I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described may have days when she is able to do more activities than on other days. In particular, I saw the plaintiff walking in a shopping centre and in a car park. I accept that the plaintiff did not walk as an injured person, she was not walking stiffly and she walked at a reasonable pace. The plaintiff was shown carrying some shopping in two plastic bags without assistance. She said there was not much in the bag, in fact there were two bags. She agreed she was shown pushing a trolley and walking quickly. Another video showed her at the rear of her car standing next to a forklift. She denied that she picked the item up from the forklift but agreed that she was seen pushing the item, which contained tiles, into her car. She denied picking an item up off the ground. She was shown picking something up off the ground. The plaintiff was shown standing at the door of the video store for some time moving her legs. In re-examination, she said she did this to cope with the pain.
Analysis of the Evidence
53 The plaintiff is forty-three years of age. At the time of the injury she worked as a sales assistant, and then as a sales supervisor, at Chadstone. She worked in the women’s clothing department in the coats and tops sections. The injury occurred on 23 June 2004. She returned to part-time duties with the defendant on 3 August 2004, answering telephones in reception for four hours a day, two or three days a week. Her hours of work were gradually increased to eight hours a day, five days a week, by late 2005, when she was transferred to children’s wear. Subsequently, she left the defendant, and she and her husband purchased a video-store where she works for six hours a day, six days a week.
54 It was not contested that the plaintiff suffered an injury at work. What was in issue was the consequences of her injury and whether they met the test of seriousness for pain and suffering, in that they could be considered to be “more than significant or marked and as being at least very considerable” when compared to other cases in the range. The majority of the medical opinion suggested that her impairment was of a permanent nature.
55 The plaintiff’s treatment has consisted of consulting her general practitioner, Dr Szyman, on a regular basis, and she continues to see him about every one to two months. However, when she was examined by Mr Flanc in October 2009, she told him she saw her general practitioner every three months. Initially she had physiotherapy treatment on a weekly basis but no longer receives physiotherapy.[10] She was referred to two specialists: an orthopaedic surgeon, Mr P Wilde, on 8 December 2004; and Dr Vivian, a musculoskeletal physician, in March 2005. Both doctors recommended corticosteroid injections if her symptoms failed to settle. The plaintiff has not pursued those injections, because they would be positioned in a dangerous spot. Mr Dohrmann said such an injection was not a dangerous procedure.
[10] PCB 16
56 In 2009, five years after the injury and almost five years after she had seen Mr Wilde and Dr Vivian, the plaintiff was referred to Mr Barrett, an orthopaedic surgeon, by her general practitioner. Mr Barrett did not think there was a need for further treatment. The plaintiff took medication on a regular basis of Panadol and Mobic. She performed exercises daily to free up her back and she tried to attend her local swimming pool every week or two to do exercises shown to her by her physiotherapist.
57 All the plaintiff’s doctors accepted that the plaintiff had an underlying condition which became symptomatic when injured at work. All of the plaintiff’s doctors accepted that she should avoid repeated bending, heavy lifting and pushing, which restrictions are likely to persist indefinitely. Those work restrictions prevent her from engaging in work that requires bending and lifting and where she cannot change from standing to seated positions as required. However, the plaintiff works for six hours a day, six days a week in a business she and her husband purchased. In the business there are jobs she cannot do, such as stacking the videos in the lower shelves, and she is reliant upon her husband to perform those tasks.
58 Mr Dohrmann said the plaintiff would experience back and buttock pain on an indefinite basis, but he said the degree of disability related to the work-related injury is persisting but relatively mild in nature. Mr Flanc said that her condition had stabilised, and the prognosis for substantial improvement was poor. Mr Barrett said that she could not sit or drive for long periods and that her prognosis should be satisfactory.
59 The defendant’s medical opinions were more optimistic about the plaintiff’s future, but accepted that she had a work injury which was described as a contributing factor to the aggravation of a pre-existing injury, a disc-strain injury, and a mild lower thoracic disc degeneration. All doctors accepted that she had no neurological involvement. None of the doctors described the plaintiff’s level of pain as excruciating or unrelenting. The plaintiff has been offered injections to alleviate the pain, but has not accepted that offer. Her level of medication is at the lower end.
60 The plaintiff deposed to the consequences of her injuries in her first affidavit, at paragraphs 14-22. In March 2009, she told Mr Ian Jones that she could walk for up to thirty minutes and does so on a daily basis, that she drives for up to forty minutes continuously and then has to stop and get out of the car. Her sitting capacity is limited to about an hour. She can cook and manage light cleaning. However, vacuuming, the heavier sweeping and shopping is managed with assistance from her family.
61 In October 2009, she told Mr Dohrmann that sitting is uncomfortable, especially in a motor vehicle, and she is limited to fifteen to twenty minutes. Standing is limited to thirty or forty minutes. Walking is restricted to about thirty minutes. Each of these positions can produce increased buttock and leg pain if these limits are not observed. She said her household duties were restricted, which is consistent with what she told Mr Jones. However, in cross-examination, she agreed that she did vacuum. She also said that before she was injured she enjoyed long walks and gardening, and playing with her children, for example, going ten-pin bowling, that these activities have been much curtailed. Yet in her first affidavit, she said she was not a gardener.
62 Whilst there were inconsistencies regarding the consequences of the plaintiff’s injury with what she told the doctors and her evidence, I consider that on the whole they were of a relatively minor degree and do not affect her credibility.
63 The plaintiff presented as an intelligent person who gave basically consistent histories to doctors, but in court exaggerated her symptoms. I accept that this was to ensure the Court understood how her injuries had affected her day-to- day activities. I accept that the histories recorded by the doctors were based on what the plaintiff told them. Where the histories were inconsistent with her evidence in court, I prefer the records of the doctors. There would be absolutely no reason for the doctors to record anything other than what they were told by the plaintiff at the time of their examination.
64 It was to the plaintiff’s credit that she actively adapted her lifestyle to accommodate her restrictions. She purchased a car which was more comfortable for her back. She and her husband purchased a video-store which provided her with suitable employment, namely flexible working hours, the ability to alter her position as required and to have her husband perform jobs which involved bending and lifting. Overall, she appears to manage her family and work life in spite of her back injury.
65 There is no doubt that the plaintiff’s working life and her home life have been affected by her low-back pain. However, she says that she continues to perform her household chores at a reduced rate and with pain. She also obtains assistance from her husband and other family members.
66 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in TAC v Dennis:[11]
“[M]any disturbances are considerable, in the sense that they are
important or substantial, without being very considerable.”[12]
[11] [1998] 1 VR 702
[12] [1998] 1 VR 702, 703
67 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of “very considerable” magnitude. Although the plaintiff’s back injury has had a notable effect on her life, she retains the capacity to participate in most activities and to undertake full-time work.
68 Taking all the evidence into account, I am not persuaded, on the balance of probabilities, having viewed and considered the surveillance film, and in light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a back injury at work in June 2004. I accept that the injury has had consequences to her, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, that the injury can “fairly be described as being more than significant or marked and as being at least very considerable”.
69 Accordingly, I dismiss the application.
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