Alexander v Portland District Health and CGU Workers
[2011] VCC 1194
•5 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05537
| SHIRLEY GRACE ALEXANDER | Plaintiff |
| v | |
| PORTLAND DISTRICT HEALTH | First Defendant |
| and | |
| CGU WORKERS COMPENSATION | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 2 and 3 August 2011 |
| DATE OF JUDGMENT: | 5 August 2011 |
| CASE MAY BE CITED AS: | Alexander v Portland District Health & CGU Workers Compensation |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1194 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – injury to lower spine – disentangling other conditions and disorders – whether consequences serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D G Brookes SC with | Stringer Clark |
| Mr N R Bird | ||
| For the Defendants | Mr D R Myers | Lander & Rogers |
| HIS HONOUR: |
Preliminary
1 The plaintiff has worked for forty years as a nurse. She commenced to have lower back problems in the 1990s which continued on and off, requiring treatment from time to time. From approximately 1985, she worked as a nurse for the first defendant at the Portland Hospital and from about 2000 alleges that the work became more demanding and arduous. As a result, she claims to have suffered injury to her lower spine in the nature of aggravation of an underlying degenerative disease because of her work duties. In addition, she has suffered fibromyalgia and a reactive psychological disorder. She retired from employment in November 2003 and has not worked since. She claims a range of domestic, recreational and social activities have been curtailed as a result.
2 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant over the period from October 1999 until November 2003.
3 Mr Brookes, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine.
4 The application is thus brought under subsection (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function. Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f) of the Act that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her “without injury” earnings in that part of the three-year period before and after injury as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
6 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, her three affidavits, various treating and consultant doctors’ medical reports and vocational reports were tendered into evidence. I have read all the tendered material.
Relevant Background
7 The plaintiff was born in 1942 and is currently sixty-eight years of age. She was born into a rural family in northern Victoria and was educated to Year 11. She is married with four adult children, all of whom have left home.
8 She commenced nursing training, which she completed in 1963. She worked in a number of hospitals in Victoria and South Australia, including the Portland and District Hospital. She was away from work for a period when her children were young. She worked at the Portland Hospital again from August 1985. She commenced to experience back pain from as early as 1990. In 1995, she hurt her back while lifting a patient and was prescribed medication. She saw a doctor again in May 1996 for back and leg pain and was referred for a CT scan. According to the report of Mr Schofield,[1] that scan showed central canal narrowing at L5-S1 possibly impinging on the L5 nerve root. The plaintiff had complained of sciatica. Over the period from 1996 to 2000, she attended her general practitioner on two occasions for low-back pain. Throughout the 1990s, she continued to work in the Accident and Emergency Department of the Portland Hospital. In 1999, a “no lift” policy was introduced at the Hospital, and she was appointed as the person designated to implement the policy. The implementation was a source of disharmony between herself and management at the Hospital. Up until 2000, she claims that she was able to cope with her work without any significant difficulty and enjoyed a range of interests and activities, including, in particular, gardening, craft and reading. She was engaged in a range of domestic duties, and remained in close contact with her adult children. She says she always enjoyed her work as a nurse and had intended to work to beyond sixty-five years. She claims there were other nurses at the Hospital who were working well beyond that age.
[1] Plaintiff’s Court Book (“PCB”) 79
9 In relation to the episode of 1996, the plaintiff took approximately three months off work as sick leave. After this, she resumed normal duties but continued to suffer back and referred leg pain. By late 1999, she was suffering regular back pain, commonly referred to as a “nurse’s back”.
10 In mid-2000, the plaintiff went to visit her daughter who had her first baby in Western Australia. She flew to Perth and then Karratha. Because of the extended period sitting, when she got off the plane her back pain was worse and she suffered referred pain down her leg. According to a clinical note of her then treating general practitioner, Dr Gard, she complained of right sciatica upon her return, which had continued over a number of weeks. She accepted in cross-examination that after the flight to Perth, the right sciatica became severe and constant from that time. Upon her return to Portland, she returned to work at the Hospital, but on restricted duties. She returned to her normal duties in 2002. Throughout the 1990s, she had worked four 8-hour shifts per week. In 2002, she returned to those hours.
11 In approximately 1998, she developed fibromyalgia, a generalised muscle pain of uncertain aetiology, which persisted through until the present time, although the plaintiff claims that it has improved significantly since she left work in 2003. It has required treatment from time to time, including from a rheumatologist, Dr Nigel Wood. No report from this doctor was tendered into evidence although it is clear Dr Wood had provided a report.[2] The plaintiff accepted in cross-examination that the fibromyalgia was “florid” over the period in 2002 and 2003.
[2] PCB 130
The Injury and its Consequences
12 It is the plaintiff’s case that from 2000, her work became more onerous and demanding. She was the evening supervisor at the Hospital and her duties included heavy lifting (notwithstanding the “no lift” policy), pushing of trolleys around various parts of the Hospital and walking up and down stairs at a fast pace in order to meet the demands of those duties. She was required to stand in awkward postures holding a patient’s limb while a doctor applied plaster. Generally, she claimed that her workload from 2000 significantly increased, both in terms of the physical duties, and the number of patients attending the hospital. Some of her duties were administrative, but notwithstanding, she still did a significant proportion of “hands on” work. According to her affidavit, in November 2000, her back “gave out”.[3] She claims the pain in her back became intense and was again radiating down her right leg.
[3] PCB 20
13 In March 2001, there was a further incident with an acute exacerbation of back and leg pain. She was off work for two months, and submitted a Worker’s Compensation Claim Form.[4]
[4] Defendants’ Court Book (“DCB”) 1-2
14 When she returned to work in May 2001, she commenced initially on restricted duties. In June 2001, she travelled overseas with her husband for eight weeks. She returned to work in September 2001, working 20 hours per week with restrictions. One of the restrictions was that she was not to work two consecutive days. Because of the staff shortage and the demands of the job, she says she regularly worked two days in a row. In 2002, she increased her hours to 32 hours per week, the same hours as she had worked before 2000. She claims she had increasing difficulty coping.
15 During this period, the plaintiff claims that her back ached constantly and the referred pain into her right leg continued. She says that by October 2002, she was suffering pain in both legs. She was taking pain-relieving medication, anti-inflammatories, and resting after shifts.
16 In April 2003, the plaintiff’s lower back pain and pain radiating into her legs continued. She claims restrictions in the Certificates of Capacity issued by her doctor were being ignored by the Hospital. Around this time, she was also having some difficulties with her neck. She was taking pain-relieving medication and Cipramil for stress. She was having regular massages to deal with muscle spasm, physiotherapy and had a back brace at work. She continued to take anti-inflammatory medication. She was earning between $600 and $700 net per week. As stated, she intended to work beyond age sixty-five years.
17 At the present time, she continues to see her general practitioner. She has been attended by a number of general practitioners, some of whom have left the area and some of whom she claims not to have had good communication with. Until recently she has been seeing a psychologist but that person has also left the area and she is now not receiving any psychological treatment. She takes Panadeine, up to six per day, together with Cymbalta. She claims to presently have constant pain in her lower back. Since leaving work, the generalised muscle aching symptoms related to fibromyalgia have eased although she still does have some problems. She has difficulty with sleeping. Her enjoyment of her garden is restricted and she no longer does very much work in it. She has difficulty in a range of domestic duties,[5] including vacuuming, hanging out the washing and some cooking, and is no longer able to travel as far to see her family.
[5] PCB 40
18 From the middle of 2003 it is clear there was disharmony between the plaintiff and the Director of Nursing, Kathryn Eyre.[6] Ms Eyre alleged the plaintiff had failed to adequately implement and maintain the “no lift” program within the Hospital. According to correspondence, the plaintiff was disciplined for that failure. In evidence, the plaintiff said that all of the nursing staff were disciplined in one manner or another by Ms Eyre and it was a source of contention within the Hospital.
[6] See Exhibit 1
19 On 3 November 2003, the plaintiff sent a letter to the Hospital resigning her employment.[7] It was put to the plaintiff in cross-examination that the reason for this resignation was the disharmony relating to the discipline undertaken by the Director of Nursing. The plaintiff disagreed with this, saying it was principally problems with her lower back, although admitted there were other factors. Of note also is that at this time her fibromyalgia was “florid”.
[7] Exhibit 1
20 In my view, it is likely that the reason for her resignation was as a result of all of these issues. It is clear that the plaintiff had been a nurse for a considerable period and was proud of her career and reputation. It is clear there was disharmony within the Hospital and she was upset by the prospect of disciplinary proceedings. It is further clear that the plaintiff at the time was suffering both from fibromyalgia, and pain and restriction as a result of a lower back condition. In my view, these were also factors which lead to her resignation.
Medical Evidence
21 The plaintiff was examined by Mr William Maling, surgeon, in December 2003.[8] She provided a history that there had been no specific incident at work but that her work at the Hospital had become far busier. She claimed to work at a running pace and was required to use stairs many times during each shift. Mr Maling stated:
“As with a lot of hospitals, the workload has increased without extra staff being employed. In Portland, when the first person in Accident and Emergency is not particularly skilled, the work devolved upon her, as well as her other duties. I am personally aware of all her work at the hospital, having worked in the same institution as she has for over thirty years and can vouch for her busyness. … There is considerable lifting, transferring of patients and, on multiple occasions, lifting of loads involved in her work that would provide stress on the back.”[9]
[8] PCB 43
[9] PCB 44
22 Upon physical examination, Mr Malling noted spasm present in the lower back, 2-centimetres of wasting of the right thigh, and diminished right ankle jerk, all objective signs of injury. He inspected the CT scan of 6 September 2000 which he said showed facet joint osteoarthritis at L5, canal stenosis at L4-5 with a disc bulge. At L3-4, there was a further bulge with mild canal stenosis. He noted the MRI scan of 22 March 2004 showed reduced signal intensity from the discs at L4-5 and L5-S1. Scanning showed a slight bulge at L5-S1 but no true prolapse. There was minimal annular bulging at L4-5. Mr Maling concluded from clinical examination that the plaintiff had a stiff and painful neck and back. He said she had developed a spinal stenosis as a result of repeated injuries to her back caused by her work, particularly in January 2001 when she developed right sciatica. He said her days as a Division 1 Nurse were largely over. He thought she should terminate her nursing employment given her symptoms and the risk of aggravation.
23 A number of reports were provided by various general practitioners. Dr Jenny Risk, in her report of 28 January 2004,[10] said that the plaintiff first presented with low-back pain on 5 March 2001 which, according to the history, was gradual and caused by general wear and tear. There was a history of back pain going back to 1995. There had been intermittent right sciatica over the years which had become more constant after a trip to Western Australia. Dr Risk referred to the generalised aches and pains in various areas of the body in 2003 with a referral to Dr Nigel Wood, rheumatologist. She said depressive symptoms were first noted on 19 March 2001. She noted on 29 August 2003 the plaintiff said that the stress from work-related issues, that is, chronic pain, WorkCover and roster issues, were such that she was too unwell to return to work. Dr Risk noted that she was unfit for work on 3 November 2003 over a period of four weeks and decided to resign. She noted since leaving work her mood had improved.
[10] PCB 55
24 A further medical report of Dr Janice Cantley was tendered.[11] She took over the plaintiff’s medical care in November 2006. She noted the plaintiff said her lower back condition was getting worse. Dr Cantley was involved in her psychological treatment and referred her to Dr Michael Duke, psychiatrist.
[11] PCB 57
25 In a second report,[12] Dr Cantley noted that she had seen the plaintiff on several occasions in 2009. She was suffering then from degenerative disc disease of the lumbar spine, fibromyalgia and depression. She said:
“It is very difficult to separate the emotional side of her symptoms from the physical. While she does have degenerative disease and osteoarthritis – the natural history is of deterioration with age. Her work did not cause the osteoarthritis, only aggravated it. She may well have retired by now with the issues caused by the natural progression and ageing process of her condition. I find it impossible to separate the work-related physical issues from the ageing process and I am unable to make any further comments.”[13]
[12] PCB 61
[13] PCB 61
26 The statement by Dr Cantley that the plaintiff may well have retired by 2010 appears speculative. The plaintiff denied in cross examination any intention to retire as suggested.
27 According to the report of Dr Graham Ridley, psychiatrist, he saw the plaintiff on three occasions towards the end of 2008.[14] The plaintiff gave a history of the onset of lower back problems in the 1990s, her difficulties with the workplace, including the plaintiff’s perception that the administration were attempting to “get rid of me”. She described to Dr Ridley psychological symptoms, including being flat, unmotivated, and stressed by reason of the conditions at her work. She said she felt lonely as her husband was a “workaholic” and she missed her children. He diagnosed her as suffering a major depressive episode, chronic, related to her issues at work and compounded by a degree of loneliness and persistent back pain. He encouraged her to engage in activities to diversify her life.
[14] PCB 58. It would appear the plaintiff saw Dr Ridley and not Dr Juke as referred to in the report of Dr Cantley.
28 The plaintiff was referred to Mr Michael Dooley, orthopaedic surgeon, in May 2001 at the request of her general practitioner. He further assessed her on 27 June 2001 on behalf of the defendants.[15] She provided a similar history of nursing duties causing back problems going back many years, with exacerbations in February 2001 which required time away from work and medication. Having examined the plaintiff and inspected the radiology, he concluded that the plaintiff suffered degenerative disc disease in the lumbar spine which he described as not unusual in a sixty-year old nurse who had been working in that occupation for forty years. He noted she had suffered acute pain after a long plane trip. He said that the degenerative disease was naturally occurring. He again examined the plaintiff in July of this year.[16] He received a history that the plaintiff’s fibromyalgia had improved. He said that he accepted that the plaintiff had aggravated her underlying degenerative condition in the course of her nursing work. He further noted she had developed significant depression and a “Chronic Pain Syndrome” which amplified her pain. He said that in 2003 she was unable to continue her work from the perspective of both physical and psychological symptoms. He said that her employment after October 1999 had been a significant contributing factor to the aggravation of the underlying degenerative disc disease and the development of a Chronic Pain Syndrome. He said she would be unfit to carry out any heavy physical work but from an orthopaedic viewpoint she would be able to carry out light physical work and clerical duties. He said she could expect intermittent low-back pain to continue.
[15] DCB 29
[16] DCB 12
29 The plaintiff was examined by Mr Kenneth Brearley, surgeon, in April 2006, September 2009 and September 2010.[17] Having examined the relevant radiology and performed a physical examination, Mr Brearley concluded that the plaintiff had suffered mechanical lumbar pain due to an intradisc rupture of the L4-5 and L5-S1 intervertebral discs with consequent low-back pain and right-sided sciatica. He said the MRI scan of March 2004 showed central disc protrusion extending to the left which accounted for her left-sided back and leg pain. He said she was not fit for any type of nursing work as she was unable to sit or stand for long periods. He said she was not able to carry out domestic activities as before and he concluded she did not have any current physical capacity for employment.
[17] PCB 62, 72, 76
30 In his final report of September 2010, he noted she was no longer having the widespread muscular pain of which she had previously complained. He thought her condition had deteriorated since the previous examination with an increase in low-back pain and pain into the left and right legs. These symptoms he regarded as a serious interference with her enjoyment of life as she was no longer able to participate in social outings and could not sit or stand for long periods of time.
31 The plaintiff was also examined by Mr Stanley Schofield, orthopaedic surgeon, in September 2009, and September 2010.[18] He described her as an honest witness and received a comprehensive history of her back problems going back over many years. He said a CT scan of her lumbar spine in August 1996 demonstrated central canal narrowing with possible impingement of the L5 nerve root. An MRI scan of September 2010[19] he said showed multi-level degenerative change with the major degree of pathology at the L4- 5 disc space which he said showed a significant narrowing of the exit foraminae due to central canal stenosis. He said that the type of work undertaken by the plaintiff over many years had caused an aggravation of the degenerative changes in both her neck and lumbar spine; in particular, the work from 2000 onwards which placed increased stress upon the plaintiff’s back. He said the radiology showed evidence of chronic bulges and instability at L3-4 which he said indicated severe degenerative change, much greater than he would have expected of a person of the plaintiff’s age who is not engaged in physical work. He said that employment from 1 January 2000 materially contributed to the plaintiff’s injuries. In this assessment he excluded any stress-related disability. He rejected the diagnosis of fibromyalgia. He said the plaintiff was not fit for any work given her education, training and experience and that she would be unable to resume recreational or domestic activities in her current state.
[18] PCB 67, 79
[19] Exhibit 4
32 In addition to Mr Dooley, the plaintiff was examined on behalf of the defendants by Professor Richard Ball, consultant psychiatrist.[20] He received a comprehensive history of the onset of back problems, the plaintiff’s difficulties with her work, in particular, with the Director of Nursing, and the onset of fibromyalgia. He diagnosed her as suffering a depressive reaction to persistent physical pain. He said her employment was a significant contributing factor and that at the time he examined her in September 2003, she did not have a work capacity.
[20] DCB 15
33 The plaintiff was examined by Dr David Ho in February 2005. Dr Ho commented that the recent MRI scan of her cervical and lumbosacral spine –
“… revealed a surprisingly good or normal cervical and lumbosacral spine
for her age, given her forty years of nursing”.
34 He thought the plaintiff was suffering from fibromyalgia which had presented insidiously.
35 Finally, the plaintiff was examined by Professor Ivor Jones, consultant psychiatrist, in August 2008. He was of the opinion she suffered a chronic depressive condition of moderate degree, present for six years. He said the causes of the condition were complex, including relationship problems with the Director of Nursing, superimposed upon chronic back pain.
36 A vocational assessment was undertaken by Mr Bill Radley, clinical psychologist, in September 2009 and October 2010.[21] On each occasion, having examined a range of potential employment areas, he concluded the plaintiff had no current work capacity for any type of employment, either pre- injury or alternative.
[21] PCB 101, 127
Conclusions from the Medical Evidence
37 It is clear from the medical evidence and the history provided by the plaintiff that she had problems in her lumbar spine going back to the early 1990s. She appears to have suffered various assaults to the spine in the course of her nursing duties over the period up until 2000. After one episode in 1996, a CT scan was undertaken which showed degenerative disease at L4-5, L5-S1. The problems over this period also required her to have some time off work. Nonetheless, as at 2000, she was working four 8-hour shifts per week in general nursing duties as she had done over many years.
38 Of particular significance in my view is the report of Mr Maling, who supports
39 It was put by Mr Myers in submissions that the radiology does not show extensive damage to the plaintiff’s lower spine. However, that is not the view of Mr Maling, Mr Brearley nor Mr Schofield, all of whom regard the degenerative changes, particularly at L3-4 and L4-5 as significant, even severe. Even Mr Dooley, who reported on behalf of the defendants, said there was evidence of degenerative disc disease at the lower levels, although without major disc prolapse or nerve root entrapment. Only Dr Ho did not appear to regard the radiology as significant. I reject his opinion.
40 The majority of the doctors, in particular Messrs Maling and Schofield, and even Mr Dooley, accept that the plaintiff’s busier duties post-2000 were a material contributing factor to her ongoing pain, and referred pain into initially the right and then both legs.
41 It is further clear that the plaintiff developed fibromyalgia which was most florid in 2003 and 2004. I accept the plaintiff’s evidence, and the opinions of the recent practitioners who have examined her, that that condition has improved and is no longer as significant as it was.
42 The majority of the medical evidence is that the plaintiff at the present time would not be able to undertake her nursing duties. Some practitioners, including Mr Schofield and Mr Brearley, consider the plaintiff has no work capacity. I accept those opinions. Realistically, given the plaintiff’s age and the significant pain and restriction which I accept her back condition causes her, she has no work capacity.
43 The opinion of Dr Cantley was that she could not separate the work-related physical issues from the ageing process in the plaintiff’s spine. However, the other doctors, including Messrs Dooley, Schofield and Brearley, all assess the plaintiff from a physical perspective in relation to her spine and I accept their opinions. Dr Cantley’s opinion that the plaintiff would have retired by 2010 in any event is speculative.
44 I am satisfied, from the medical evidence, that the plaintiff’s work in the period after 2000 did significantly aggravate the underlying degenerative process in her lower spine, particularly at L3-4, and L4-5. I am satisfied that that has led to significant pain in the lower spine, and referred pain both to the right and now the left legs.
The Plaintiff’s Credibility
45 I had the opportunity to assess the plaintiff in the course of cross-examination. I found her a sensible, reserved and honest witness giving a fair account of her problems. Video film of the plaintiff was shown of the plaintiff doing some shopping in July 2011. Nothing depicted in the video film was in conflict with the plaintiff’s complaints of pain and restriction, both in her affidavits and to the doctors. On one occasion she walked briskly from a shopping centre, but explained that she had just had a massage which she found relieved muscle spasm in her back.
46 All in all I accept the plaintiff as an honest witness and accept her claims of the effect upon her of the pain and restriction caused by her lower back injury.
Conclusions
47 At the present time, the plaintiff complains of ongoing pain and restriction in her lower back. This affects a range of domestic and recreational pastimes she previously enjoyed. She takes some pain-relieving medication each day, an anti-depressant, and has regular massage. She has no other treatment.
48 I accept that her fibromyalgic condition is now much improved and is not as significant as it was in the years 2003 and 2004. I accept that the plaintiff has no realistic current work capacity. It is put by Mr Myers in submission that the cause of the plaintiff’s resignation in 2003 was largely a dispute with management at the Portland Hospital. In my view, there are a number of causes of her resignation, including her lower back pain and fibromyalgia. I accept the plaintiff’s evidence that she would have worked beyond sixty-five as she was passionate about her job and it played a large part in her life. I accept her evidence that there are other nurses at the Portland Hospital working beyond that age. Given the plaintiff had worked in a range of country hospitals throughout her career, it was open to her to find work in another hospital, as she had done in the past, but her back pain, significantly exacerbated by her work after 2000, I accept prevented her from doing that. The plaintiff is now 68 years, beyond the usual retiring age of most people. However, given her pride in her profession, her previous many years of work throughout country Victoria and the fact that her husband is busy in his activities on the family property, I accept her evidence she would have worked beyond 65.
49 It is clear the plaintiff suffers a significant psychological condition in the nature of a Depressive Disorder or an Adjustment Disorder. I accept to some extent that disorder plays a role in her current pain and restriction. However, according to the evidence particularly of Messrs Maling, Dooley, Schofield and Brearley, from a physiological perspective, I am satisfied that her back injury is the major cause of the consequences to which she refers in her affidavit, in particular the domestic and recreational interests.[22] While there is an element of disentangling involved in determining the cause of the consequences the plaintiff refers to, in my view, they are largely physical and related to her lower back injury.
[22] PCB 40
50 The episode of back pain after the flight to Western Australia in 2001 caused a significant exacerbation of her back and leg problems. However it is not uncommon in people with degenerative spines that sitting for long periods causes a worsening of pain. I do not regard that episode as an independent event, but rather an aggravating episode linked to the underlying condition.
51 The plaintiff had significant difficulties with her lower spine prior to October 1999. That is evidenced by the histories she provided to the various doctors, and in particular the CT scan of 1996 shows significant degenerative disease.
52 In submissions, Mr Myers urged I adopt the principles of Petkovski v Galletti[23] that in order to be satisfied the plaintiff had suffered a serious injury in respect of the duties undertaken in the course of her employment after 2000, I would need to be satisfied that those duties caused an aggravation of her back condition which, of itself, constituted a serious injury.
[23] [1994] 1 VR 436 at 443-444
53 Mr Brookes, for the plaintiff, submitted that rather, in accordance with the principles established by Ashley JA in Grech v Orica Australia Pty Ltd & Anor,[24] that all that was required was that the employment after 2000 needed only to “materially contribute” to the consequences of which the plaintiff now complains.
[24] (2006) 14 VR 602 at paragraphs 64 and following
54 Petkovski was concerned with the injuries suffered to a plaintiff’s lower spine in a motor vehicle accident of June 1987. He had many years of low-back problems over twenty years. The Court said:[25]
“The accident did not cause the pre existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.
But, next, ‘the injury’ - that is, the injury which resulted from the accident
– ‘must involve serious long term impairment ... of a body function’.”[25] at page 444
55 Grech was concerned with the onset in a worker of carpal tunnel syndrome which developed from employment both before and after 20 October 1999, although he did not develop symptoms of the disorder until after that date. According to Ashley JA, the appropriate test was for the plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999 and to sufficiently establish what that injury was.[26] It was not enough, said his Honour, for the plaintiff to establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date. His Honour then went on to analyse the concept of injury as is generally provided under the Act. In particular, s.82(6) and s.86. Each Section spoke of injury “due to the nature of employment”. An injury, concluded his Honour, was compensable if it answered some part of the statutory definition or met one of the conditions of compensability. Section 134AB should be read in that light; that is, that an injury met a condition of compensability on or after 20 October 1999. His Honour then analysed the difference between injury and consequence of injury. He said:
“… Most often, a consequence is compensable if it ‘results from or is materially contributed to by’ an injury. … It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”[27]
[26] at paragraph 45
[27] at paragraph 58
56 His Honour concluded that “injury” occurred to the worker both before and after October 1999. Both periods of time materially contributed to his injury on the presumption that there was physiological change caused by work duties prior to October 1999, even although the worker did not experience symptoms until after that date. He concluded that the fact that there was some contribution by the pre-October 1999 injury did not preclude a finding of serious injury in respect of the post-October 1999 work. The latter “materially contributed” to the subsequent consequences which met the serious injury threshold. His Honour did not ignore the principle established by Petkovski v Galletti. As he noted:
“That is, the situation should not be considered akin to the situation
considered in Petkovski v Galletti.”[28]
[28] footnote to paragraph 64
57 A similar conclusion appears to have been reached in Guppy v Victorian WorkCover Authority.[29] In dealing with two distinct injuries to the same body function, one occurring in 2001 and a second in 2005, Emerton AJA said that the second injury was an aggravation of the first. The second injury was the subject of the appeal and her Honour said that the aggravation itself must bear consequences of sufficient magnitude to qualify as a serious injury. She found no inconsistency between that approach, and that stated by Ashley JA in Grech.[30]
[29] [2010] VSCA 164 (25 June 2010) at paragraphs 17-19
[30] footnote to paragraph 19
58 The matter was the subject of analysis by his Honour Judge Misso in Filipowicz v Arnold Ribbon Co Australia Ltd.[31] His Honour analysed the different principles established by Petkovski and Grech.[32] He stated:
“As I see it, the distinction between Petkovski on the one hand, and Grech on the other, is that the facts on which Petkovski was based arose from a transport accident and not an industrial accident. A comparison between the Transport Accident Act 1986 and the Act demonstrate that what his Honour referred to as the language of the Act and its history of interpretation, is absent from the Transport Accident Act 1986.”
[31] [2011] VCC 287 (21 February 2011)
[32] at paragraphs 99-115
59 With respect, I agree with his Honour’s conclusion. I would add that if one were dealing with two discrete injuries to a body function caused on different occasions, the second aggravating the first, then in order to qualify as a ‘serious injury’ the second aggravating injury, looked at alone, must produce consequences which achieve the required level, be that under the Transport Accident Act or the Accident Compensation Act.
60 However, in my view, when one is dealing with an injury which occurred over a period of time, as is the case with the plaintiff, and the application concerns s.134AB of the Act, the proper analysis is as established by Ashley JA in Grech. That is, an analysis should be made of the injury sustained after October 1999. If the evidence satisfies the proposition that the work after that date caused injury which materially contributed to the consequences which are found to satisfy the definition of “serious injury”, then the worker succeeds in the application.
61 Given I am satisfied that the plaintiff’s work duties from 2000 onwards caused injury which materially contributed to the consequences of which she complains, and that those consequences achieve the requisite level, her application succeeds. It is not, as the defendants would have it, to say that the analysis requires an assessment of the aggravation after October 1999 and whether that aggravation, of itself, gives rise to consequences which reach the serious injury threshold.
62 For the reasons stated, I am satisfied that the consequences in terms of pain and suffering, the various restrictions and inhibitions which the pain places upon the plaintiff’s recreational, domestic and social activities achieves the “very considerable” level as the legislation requires. I am further satisfied that the plaintiff has little if any present capacity for employment and that that is largely as a result of her lower back injury. Thus, the plaintiff succeeds both in respect of pain and suffering, and economic loss. There is no issue her lower back condition is permanent.
63 I shall hear from the parties as to costs.
- - -
0
3
0