Anderson v Aged Care Services Australia Group Pty Ltd
[2020] VCC 42
•7 February 2020
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02577
| DEBORAH ANNE ANDERSON | Plaintiff |
| v | |
| AGED CARE SERVICES AUSTRALIA GROUP PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2019 | |
DATE OF JUDGMENT: | 7 February 2020 | |
CASE MAY BE CITED AS: | Anderson v Aged Care Services Australia Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 42 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages only – reliance upon paragraph (a) of the definition of serious injury – injury to the back – background of mental health problems – disentanglement issues – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr G Smith | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr R Stanley | Wisewould Mahoney Lawyers |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering. In so doing, she relies upon paragraph (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. Whilst initially it had been indicated that there was also reliance upon paragraph (c) of the definition, this was subsequently abandoned. I would refer to Transcript (hereinafter referred to as “T”) 1. As the plaintiff has a history of mental health problems, her psychological or psychiatric condition remained relevant for the purposes of disentanglement, effects upon enjoyment of life, general capacity and the like. I would refer, for example, to the opening observations of Mr Stanley at T8. Further, whilst there were references to the plaintiff having some earlier incidents of back pain, essentially her case was based upon a specific incident which occurred on 29 September 2009 – see T3. This shall hereinafter be referred to as “the accident”.
2 The physical injury relied upon is one to the lumbar spine and shall hereinafter be referred to as “the injury”. It is alleged that the accident occurred when the plaintiff was attempting to grasp and lift a bag of rubbish which was stuck in the bottom of what is described as an Otto bin, this being part of her duties as a cleaner and personal services attendant whilst employed by the defendant. There is no dispute concerning the occurrence of the accident. Statutory benefits were paid for a brief period. I would refer to T9.
3 As shall be discussed, the situation is complicated by the fact that the plaintiff had suffered from some previous back pains over the years and, to a larger extent, from mental health problems. Issues of disentanglement arose. If there is any ongoing contribution by the accident to the plaintiff’s health, it was argued that the accident itself was not productive of significant consequences. Thus, a central issue was whether, after the disentanglement process, the statutory test has been satisfied.
4 Mr J Richards QC with Mr G Smith of counsel appeared on behalf of the plaintiff. Mr R Stanley of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to the injury
5 The plaintiff is aged 52 years, she having been born in 1967. She was married, but the relationship with her husband broke down in the late 1990s. She has not remarried, but over the years has had an “on-again-off-again” relationship with a gentleman called Ron. As at the hearing date, she had resumed living with him, such resumption having occurred in June 2019. She has one daughter, who would currently be aged approximately 20 years.
6 The plaintiff was educated to Year 11 level. She undertook an apprenticeship and worked as a hairdresser until she was approximately 30 years of age, when she ceased that employment in order to look after her daughter. Apart from a small amount of hairdressing work when her daughter commenced primary schooling, the plaintiff has not since undertaken work of that nature.
7 The plaintiff commenced working in the aged care industry in approximately 2005. She continued in such work after 2007, when the facility was taken over by the defendant. The facility is known as Goonawarra. The plaintiff ultimately obtained a Certificate III in Personal Services. She was employed by the defendant on a permanent part-time basis, but apparently worked close to full-time hours. Her duties mainly related to cleaning, although there was some patient care work. The plaintiff has sworn that the work was strenuously and physically tiring, particularly the removal of rubbish, including sanitary items, from various bins. It was whilst performing this work that the accident occurred.
(c) The plaintiff as a witness
8 As I indicated during closing addresses, I have no difficulties in relation to the credit of the plaintiff. I made this observation following the submission of Mr Richards that the plaintiff had given an honest account of herself and her symptoms. I would refer to T73. I might add that there was little or no attack upon her credit in the closing submissions of Mr Stanley.
9 I would also point out the following. Dr Michael Bloom, occupational and environmental physician, examining the plaintiff at the request of the defendant, described her as presenting in a pleasant and straightforward manner. Mr Michael Dooley, orthopaedic surgeon, also examining on behalf of the defendant, stated that he found her to be a sensible and genuine historian. He did not believe that she was deliberately exaggerating her presentation. I agree with these observations. I am of the view that the plaintiff was a witness who did her best to give an accurate account of events, symptoms and consequences.
(d) The state of the plaintiff’s health prior to the accident
10 The situation in this regard is a little more complex, particularly bearing in mind the issue of the plaintiff’s pre-accident mental health.
11 In relation to the plaintiff’s physical well-being, she had over the years suffered from chest pains of an unidentifiable cause and also from debilitating migraines. Apparently these occurred approximately every six months and she took medication when she felt that such an attack was coming on. These are not aspects of her pre‑injury physical health which received overly much attention. The plaintiff did suffer from occasional bouts of back pain during her pre‑injury life. She has sworn that these were never of such magnitude as to cause her to take significant time away from work. She had occasional physiotherapy and believes that she may have undergone a scan of her back on a date which she cannot recall. She is of the belief that nothing of significance was discovered. She could recall complaining of back pain to her then general practitioner, Dr Alison Bailey, in late 2008 and receiving some treatment from a physiotherapist in this regard. I note that Dr Bailey referred the plaintiff for an x-ray of the lumbar spine, this being performed on 2 March 2009. What was found was that there was moderate scoliosis convex to the left, with the apex at L2. Body heights, disc heights and posterior elements appeared intact. The L1-2 disc space was mildly narrowed. Other findings were normal.
12 This is consistent with, for example, the history given by her to Mr Mohammed Awad, neurosurgeon and spinal surgeon, who examined the plaintiff at the request of her solicitors and who obtained a history of pre‑injury, very minor, episodic low back discomfort, which responded to basic stretching and analgesia. Dr Bloom, examining on behalf of the defendant, obtained a history of low back pain for which the plaintiff had sought chiropractic treatment over the years. Again, the issue of pre‑existing back symptoms or complaints was not one which received much, if any, attention in Mr Stanley’s comprehensive closing address. I accept that the plaintiff had suffered from back aches or pains from time to time, but these were of no great magnitude or impact upon her everyday life.
13 Significantly more attention was directed towards the plaintiff’s pre‑existing mental health problems. I accept that such problems existed and that, at times, they were of considerable magnitude. In her earlier affidavit, the plaintiff has sworn that she has a history of anxiety and depression, dating back to sexual abuse during her childhood. Further, there are issues surrounding the breakdown of her relationship with her husband in the late 1990s. She also became somewhat distanced from her daughter, as well as experiencing some workplace bullying and harassment. This caused her to suffer mental anguish and become what she described as being extremely depressed and even suicidal. She had been taking regular psychotropic medication in relation to these issues, which continued whilst she was employed by the defendant.
14 Mr Jeff Berger, consultant psychiatrist, has treated the plaintiff both before and after the accident. His treatment seems to have commenced in October 2008. To Dr Alan Jager, forensic psychiatrist, who examined her at the request of the defendant, the plaintiff described the onset of depression following a court battle relating to custody in 2004. She was taking regular medication thereafter. Mr Jeff Berger, in his report of 4 September 2017 referred to the fact that the plaintiff was suffering symptoms of anxiety and depression as a direct result of workplace bullying and harassment, although whether he was referring to events before or after the occurrence of the accident is not clear. The plaintiff agreed that she had a breakdown which required hospitalisation, this probably occurring in 1998. The bottom line is that the plaintiff had suffered from mental health problems of some consequence, on one occasion necessitating hospitalisation, prior to the accident.
(e) The injury, its treatment, diagnosis and related matters
15 As stated, the injury occurred on 29 September 2009 when the plaintiff was bending into a bin and trying to remove an item which had become stuck. The plaintiff has sworn that, when she encountered resistance from the “stuck” rubbish bag, she felt a pulling sensation and heard a cracking noise that seemed to come from her lower back. She was immediately aware of a lot of pain. She finished her shift that day in pain. She thought that it would settle, but the pain worsened.
16 On 22 October 2009, the plaintiff attempted to arrange a home visit by her treating general practitioner, Dr Bailey, but this could not be arranged. Accordingly, the plaintiff saw Dr Bailey during the next week. Dr Bailey organised for a CT scan of the lumbar spine, this being carried out on 29 October 2009. I note that the radiologist recorded that the plaintiff was suffering from severe low back pain, with sensory symptoms of the right foot. The conclusion of the radiologist was that there was a central disc bulge at L5-S1 compressing the theca. It is apparent that the plaintiff returned to work and has sworn that she continued to work through 2010 and 2011, but was experiencing a lot of pain. She was taking large doses of Panadeine Forte almost daily and, whilst she was meant to be undertaking light duties, the work that she was performing did not really alter.
17 It would appear that, on 1 February 2011, the plaintiff underwent a lumbar MRI scan. The conclusion of the radiologists was that there were degenerative changes present. However, there was a left-sided par-central disc protrusion present at L4-5 causing considerable flattening of the left antero-lateral margin of the spinal theca and posterior displacement and compression of the left descending L5 nerve root. There was also narrowing of the left intervertebral foramen with probable compromise of the exiting left L4 nerve root.
18 Whilst it is not entirely clear, it would seem that, at some stage, the plaintiff was seen by a neurosurgeon at the Royal Melbourne Hospital and thereafter undertook a conservative management plan, as well as attending her pain management clinic. It may well be that this neurosurgeon was in fact Dr Katherine Holland, neurosurgical registrar. She saw the plaintiff at the Royal Melbourne Hospital on 12 November 2012, this being upon referral from Dr Bailey. Dr Holland reported to Dr Bailey on 12 November 2012.
19 It is apparent from the report of Dr Holland of 12 November 2012 that the plaintiff had ceased work as a cleaner with the defendant some three months previously. Dr Holland referred to the fact that the MRI scan had demonstrated a moderate posterolateral L4-5 disc protrusion contacting the L5 nerve root, but also observing that there was no significant canal compromise. She stated that the recommendation was that the plaintiff did not need surgery and that conservative treatment, with regular exercise and a physiotherapy program, was recommended. The plaintiff was advised not to return to manual work or lifting-type activity.
20 On 19 November 2015 Dr Bailey reported again. She stated that the plaintiff had continued to have significant pain and disability, requiring opioids to manage her pain. The plaintiff was unable to perform cleaning duties, such as sweeping and vacuuming, and was unable to lift or spend prolonged periods standing or sitting. Her walking was limited due to pain. Dr Bailey referred to the fact that the plaintiff had recently been reviewed by a neurosurgeon (Professor Bittar) at the Royal Melbourne Hospital. Dr Bailey stated that it appeared that the plaintiff was a candidate for surgical management of her back injury, as conservative management had failed.
21 Professor Bittar reported to the plaintiff’s solicitors on 7 December 2015. He had reviewed the plaintiff on 19 October 2015 at the request of Dr Bailey and for the purposes of providing a neurosurgical opinion and treatment. Professor Bittar had taken an appropriate history of the occurrence of the accident. He noted that the plaintiff was complaining of lower back pain, which was constant and predominantly right-sided, radiating to the right buttock, hamstrings and calf. At some stage there had been significant pain radiating into the left leg, but this had subsided. The plaintiff had completed a pain management program. Whilst that had helped her to cope with her symptoms, her pain had not reduced. She was currently performing volunteer work in an opportunity shop, 1½ days a week.
22 The diagnosis of Professor Bittar was that the plaintiff had suffered ongoing back and leg pain as a result of the aggravation of lumbar spondylosis. He implicated employment as a significant contributing factor and specifically the accident, which remained such a factor. He recommended a repeat MRI scan, with a review to follow. At that time, he considered the plaintiff’s long-term prognosis to be guarded. Preferably, it should be assessed after further investigation and treatment. He considered the plaintiff to have limited work capacity and recommended the avoidance of prolonged sitting, standing, bending, twisting and lifting more than a few kilograms.
23 Professor Bittar reported to Dr Bailey on 18 April 2016, following the performance of an MRI scan on 14 April. He noted that the plaintiff continued to be troubled by lower back pain, but had a good range of motion of the lumbar spine. The MRI scan demonstrated L4-5 facet joint hypertrophy, but no neural compression. He recommended regular physiotherapy and Pilates. If such an approach was unsuccessful, he suggested referral to the Pain Clinic for consideration of medial branch blocks and radiofrequency denervations. He had reassured the plaintiff that she did not require spinal surgery.
24 On 16 March 2017, Dr Bailey reported that the plaintiff was about to see a physiotherapist for further management of her low back pain, which had been exacerbated of late. The plaintiff had only been able to find cleaning work. This exacerbated her back and leg pain, but she continued because of financial pressures. She had also done some waitressing work, which was a little easier. In any event, Dr Bailey was of the view that ideally the plaintiff was not suited for work requiring manual labour and was restricted in relation to lifting, sitting, standing, sweeping and the like. It was hoped that more intensive physiotherapy might assist, but, if the plaintiff continued with her cleaning work, the prospect of having a significant change to her pain levels was unlikely. The option of a referral for pain management review would be considered.
25 Dr Bailey reported to the plaintiff’s solicitors again on 9 September 2017. She set out a history of events. On this occasion, Dr Bailey stated that the plaintiff had chronic back pain, which would need a long-term management strategy, including physiotherapy, exercise physiology and psychology, with a further review at a pain management clinic. Since her last report, the plaintiff had continued to experience significant lower back pain, with some referral to the lower limbs. She had ceased her cleaning work, but her situation had not improved. The plaintiff was continuing her exercise regime and taking analgesia. Dr Bailey referred to the fact that the plaintiff was very limited in respect of her ability to perform any manual work. Further, the plaintiff had significant daily pain. The plaintiff refused to take opioid medication, unless the pain was overwhelming and affecting sleep. The limitations on the plaintiff’s work life would continue. Dr Bailey subsequently added an addendum to the effect that it was unlikely that the plaintiff would be able to work other than part-time hours due to her back condition and was limited in relation to a job which “she can physically achieve”.
26 Dr Bailey reported again on 8 June 2018. She repeated some elements of the history, but noted that more recently the plaintiff had begun to work at an egg farm. This exacerbated her back pain, and at the end of a day’s work she was unable to walk without severe pain. She was limping. The possibility of another referral to a pain management clinic was raised by Dr Bailey. She referred to the plaintiff as having “significant daily pain”.
27 It is apparent that Dr Bailey ceased to practise at the Brooke Street Medical Centre and that Dr Kiri Matthews became the plaintiff’s treating general practitioner. Dr Matthews reported to the plaintiff’s solicitors on 11 September 2019. Dr Matthews had the assistance of the notes of Dr Bailey in compiling her report and had also seen the plaintiff. Dr Matthews expressed the opinion that the plaintiff’s pain was consistent with the described mechanism of injury. She also referred to the fact that earlier (pre-accident) episodes of back pain were mild and self-resolving and not related to the injury under consideration. She noted that the plaintiff was working as an egg grader on a part-time basis and that her back pain increased towards the end of her shift. She recorded that the plaintiff occasionally takes on extra shifts by reason of financial necessity, but this causes significant aggravation of the back pain. Usually the plaintiff needed to rest in bed after work.
28 Dr Matthews noted that the plaintiff used Panadeine Forte as needed. She also advised regular physiotherapy. However, the plaintiff was likely to have some persisting degree of back discomfort into the foreseeable future. There was some potential for improvement if the plaintiff could engage in regular physiotherapy and exercise physiology.
29 I shall leave to one side for the moment reports from the plaintiff’s treating psychologist and other material relating to her mental health.
30 The plaintiff has also been seen for medico-legal purposes. At the request of her solicitors, she was seen by Mr Mohammed Awad, neurosurgeon, who first saw her in April 2017. To Mr Awad, the plaintiff complained of ongoing and constant lower back pain which, at its best, she rated at 4/10, whereas during exacerbations, she was immobile with the pain reaching 10/10. She could not sit for more than 10 or 15 minutes. Prior to the accident, she had suffered from very minor episodic lower back discomfort which did not require specific treatment or time away from work.
31 The diagnosis of Mr Awad was of ongoing back pain and left sided sciatica secondary to aggravation of lumbar spondylosis. Mr Awad considered that the injury at work in 2009 remained a significant contributing factor to ongoing pain, disability and the requirement for treatment. He repeated his diagnosis, expanding it by describing it as ongoing lower back pain and left sided sciatica secondary to lumbar spondylosis and L5-S1 disc prolapse. He suggested a further MRI scan and a valuation from a spinal treating physician in relation to any prospect of surgery. He also suggested review by a pain specialist. However, Mr Awad regarded the prognosis as being poor, in the sense that the plaintiff is likely to suffer from some degree of back pain and disability into the foreseeable future. Intervention may be of some benefit in relation to aiding her with her left sided sciatica. Mr Awad subsequently viewed the MRI of April 2016, stating that this did not alter his opinion in any way.
32 Mr Awad provided a further medical report to the plaintiff’s solicitors on 9 March 2018, having seen her on that day. On this occasion, the plaintiff’s pain was gradually worsening and the frequency of exacerbations was increasing. She was struggling to perform any jobs consistently and reliably. The plaintiff was complaining of ongoing constant lower back pain. It was now more 8/10 on a regular and constant basis, with exacerbations to a full 10/10 when she was mobile. The plaintiff’s maximum sitting or walking time was 10-15 minutes. She walked with an antalgic gait. Left sciatic pain had also increased in frequency. The plaintiff was taking OxyContin, Oxazepam and Cymbalta on a daily basis, along with Paracetamol when required. She performed home exercises when she could. The plaintiff was unable to do any bike riding or horse riding, which she had enjoyed, and was struggling with her gardening.
33 On examination, she was in severe pain and struggling to walk. Mr Awad also reviewed the radiological material, including the CT scan of 10 October 2017. His diagnosis was that the plaintiff continued to present with aggravation of lumbar spondylosis with L5 sciatica. He again implicated employment as a significant contributing factor. He recommended that the plaintiff seek the opinion of a treating spinal physician and undergo another MRI scan. He considered the prognosis to be poor, as the plaintiff was likely now to suffer more severe pain and disability into the foreseeable future. He noted that the plaintiff was struggling with alternative duties and listed a number of restrictions which should be applied to employment duties. His concluding remark was that the prognosis was poor and that the plaintiff was likely to suffer from a degree of pain and disability into the foreseeable future.
34 Mr Awad reviewed the plaintiff again on 5 August 2019, reporting to the plaintiff’s solicitors on that day. He noted that the plaintiff was employed as an egg grading quality control worker on a part-time basis, three days per week. On this occasion, she described ongoing lower back pain, with pain into the coccyx. She described the pain as being anywhere between 4/10 to 10/10. She could not sit for more than 20 minutes, but could now walk for up to 30 minutes. Her left sciatic pain was now an infrequent phenomenon. It comes and goes. Her current regime of treatment was bed rest after a day’s work and Panadeine Forte when required. Deep Heat was also applied to her back.
35 It would not appear that the MRI of 30 November 2018 was seen by Mr Awad, as there is no reference to it in the section of his report dealing with radiological investigations. The findings on examination appeared to be better than those found at the previous examination. Again, aggravation of lumbar spondylosis was diagnosed and the 2009 injury remained a significant contributing factor. Mr Awad thought that the plaintiff was likely to suffer the consequences of the injury in the form of some degree of pain and disability into the foreseeable future. He considered that her condition was entirely consistent with the stated cause. He considered her only fit for alternate duties and with a considerable number of restrictions. Such restrictions are likely to continue into the foreseeable future, as are the consequences in the form of pain and disability.
36 The defendant has also had the plaintiff examined for medico-legal purposes. Initially, the plaintiff was seen by Mr John Roth, consultant surgeon, on 26 July 2012. He was of the view that, whilst the plaintiff still had some residual symptoms, examination at the time showed no significant abnormality and he believed that, whatever injury she may have sustained, it had long ago resolved. Indeed, he stated that there was no evidence to indicate that she had sustained a work-related injury to her back. He referred to the fact that she appeared to have suffered a nervous breakdown in June 2012. No reports in relation to radiological investigations appear to have been forwarded to him. In any event, his report is now well out of date and has been overtaken by events.
37 Dr Michael Bloom, occupational and environmental physician, saw the plaintiff at the request of the defendant on 2 May 2016. A considerable proportion of the report of Dr Bloom is devoted to the issue of capacity for work and suitable employment, Dr Bloom being an occupational physician. Given that the present application is one in respect of leave for pain and suffering only, accordingly his report is of limited utility. Dr Bloom considered the medical imaging, and particularly the MRI scan of 12 April 2016, to be consistent with multilevel degenerative disc disease and spondylosis, although stating that this should not be confused with injury.
38 Dr Bloom’s overall conclusion was that the plaintiff suffered a soft tissue back strain injury in the course of her employment in September 2009 and that this injury was consistent with the stated cause. He thought that her condition subsequently evolved into a chronic pain state as a result of adverse psychosocial factors. Overall, Dr Bloom thought that the plaintiff would benefit from a graduated return to suitable employment. His conclusion was that the plaintiff had suffered a soft tissue low back strain in the course of her employment, but he was unable to find evidence of persisting serious or permanent physical injury.
39 Dr Bloom reported again on 3 July 2017, having examined the plaintiff on that day. Dr Bloom noted that the plaintiff had performed some part-time work, including 20 hours per week for approximately nine months at a winery, where she did some cleaning and light gardening work. She stated that her back pain was not severe at the moment, but the intensity of symptoms varied between zero and 10/10. In relation to medication for her pain, she was taking between zero and eight Panadeine Extra tablets per day, averaging approximately 20 per week. She also took medication for depression and to help her with sleep.
40 Dr Bloom felt that, from a physical perspective, the examination findings of her low back and spine were within normal limits for a 50 year old woman. Her presentation was consistent with chronic non-specific low back pain and stiffness without clinical radiculopathy. He thought that there were no objective signs of serious or persisting physical injury or a serious underlying condition. He diagnosed intermittent chronic non-specific low back pain and stiffness consistent with identified mild to moderate degenerative disc disease and spondylosis. He believed that she had suffered a soft tissue strain injury, which had resolved. She might experience ongoing intermittent symptoms of discomfort and stiffness in her low back, a condition not to be confused with injury. Again, much of his report was directed towards the issue of possible employment.
41 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant, reporting on 27 May 2016. Mr Dooley found the plaintiff to be a somewhat vague historian. He described her as having naturally occurring degenerative disc disease of the lumbar spine, involving mainly the L4-5 level. Mr Dooley was of the belief that, in the episode at work in September 2009, the plaintiff sustained a soft tissue injury to her lumbar spine, this involving aggravation of underlying degenerative disc disease. He noted that radiological investigation in 2011 showed a definite left sided L4-5 disc prolapse, with compression of the L5 nerve root.
42 Mr Dooley considered it possible that, during the course of her cleaning work, the plaintiff sustained a left-sided L4-5 disc prolapse. Thereafter, there was some significant improvement in her symptoms. The plaintiff was advised to undertake low impact exercises and would benefit from attending a pain management clinic. Mr Dooley observed that a disc prolapse is associated with some aggravation of the underlying degenerative disc disease at that particular level and that patients do note ongoing intermittent low back pain. The plaintiff noted such pain, but there was no specific sciatica. He thought that it would be important for her to return to suitable work, also observing that there was no current indication that there should be consideration of surgical intervention and that she did not require regular ongoing conservative treatment.
43 As earlier stated, Mr Dooley found the plaintiff to be a genuine and sensible historian, who was not deliberately exaggerating her presentation. Whilst aware of her having some mental problems, based upon her presentation Mr Dooley did not believe that psychological factors were specifically influencing her condition.
44 Mr Dooley appears to have been forwarded a disc containing radiological investigations, including the MRI scan conducted in April 2016. This material did not cause him to alter his previous opinion.
45 Mr Dooley reported again to the defendant’s solicitors on 4 May 2017, having re-examined the plaintiff one week earlier. The plaintiff complained of ongoing low back pain and had noted pain radiating down her left lower limb into her toes. She also referred to the fact that her left leg could give way and at times felt cold. In relation to treatment, she had had some physiotherapy. She was taking Panadeine Extra for her pain, in addition to her antidepressant medication. A recent exacerbation had caused her to take some OxyContin.
46 Mr Dooley remained of the view that the plaintiff had naturally occurring degenerative disc disease of the low lumbar spine, mainly involving the L4-5 level. In the accident, she had sustained a soft tissue injury to the lumbar spine that involved aggravation of the underlying degenerative disc disease. She had noted increase in the low back pain and left sided sciatica in 2011 and radiological investigation had revealed a left sided L4-5 disc prolapse with compression of the L5 nerve root.
47 Mr Dooley considered that the plaintiff’s symptoms in 2011 were consistent with a symptomatic L4-5 disc prolapse. However, her symptoms had improved with time. She had been advised to undertake low impact exercise and modify her activities sensibly. She had attended a pain clinic. She was now complaining of increasing pain down the left lower limb and the left leg could give way.
48 Whilst it was possible there had been a further disc prolapse, Mr Dooley could find no evidence of objective neurological deficit affecting the left lower limb. He believed that the plaintiff should continue with conservative treatment and remain active. He thought that she would benefit from a return to suitable employment. He observed that patients who have had aggravation of underlying degenerative disc disease and disc prolapses do note ongoing intermittent low back pain and some lower limb pain. With regular exercise and sensible modification of activity, their symptoms usually remain under control.
49 Mr Dooley thought that the plaintiff’s psychological condition was influencing her symptoms. He believed that the plaintiff would continue to note some intermittent low back pain and some intermittent lower limb pain. He would not expect her orthopaedic condition to deteriorate over and above the natural evolution of her underlying disc disease.
50 Mr Dooley reported to the defendant’s solicitors for the final time on 2 October 2019, having reviewed the plaintiff on 16 September. The plaintiff stated that her symptoms had remained as those referred to at her last review. She continued to have low back pain for which she took Panadeine Forte. There were also persisting issues in relation to depression and anxiety. She was working two days per week on an egg farm, packing cartons into boxes. She had put on some weight, but was hoping to increase her activity. The plaintiff told Mr Dooley that her low back pain could radiate into the left lower limb and that, overall, her pain is better when she is not working. Bending leads to low back pain.
51 Mr Dooley found tenderness of the low lumbar region. His opinion effectively remained the same as that expressed in previous reports. He thought that the plaintiff had sustained a soft tissue injury that involved some aggravation of her underlying degenerative disc disease. She had developed a left sided L4-5 disc prolapse and left sided sciatica, but her symptoms had improved with time. He believed that she had had an understandable psychological reaction to her situation and that this had influenced her ongoing symptoms. However, she presented as a sensible and genuine historian. He thought that an increase in general activities and low impact exercise would be beneficial.
52 Mr Dooley found that there was no clinical evidence of a worsening of the plaintiff’s condition since the time that he had last seen her. He referred to her as being a middle-aged patient with what one might term “a crook back”, also referring to simple and standard measures of treatment. In this regard, he mentioned low impact exercises and loss of weight. Such persons also have to pace themselves and sensibly modify their activities.
53 The only other report obtained by the defendant’s solicitors is that of Dr Alan Jager, psychiatrist, and I shall refer to that subsequently.
54 Bearing in mind the material set out above, I turn now to my finding as to the injury to the lower back suffered by the plaintiff in the accident. I accept that the plaintiff, a genuine witness, has suffered from chronic back pain with some referral of pain, particularly into the left leg. I would refer to the various reports of the plaintiff’s treating general practitioner, Dr Bailey, and to the more recent report of Dr Matthews, who has taken over the plaintiff’s treatment from Dr Bailey.
55 I accept that the symptoms from which the plaintiff suffers are consistent with what Dr Bailey has described as her “workplace story”. I also accept the opinion expressed by the plaintiff’s treating neurosurgeon, Professor Bittar, to the effect that the plaintiff has ongoing back pain and leg pain as a result of the aggravation of lumbar spondylosis and that the accident was a significant contributing factor to this. This is also the opinion of Dr Matthews and is consistent with the diagnosis of Mr Awad. Mr Awad has referred to low back pain and left sided sciatica secondary to lumbar spondylosis and L5-S1 disc prolapse.
56 The overall diagnosis of Mr Awad could be described as the aggravation of lumbar spondylosis. The accident remains a significant contributing factor to the plaintiff’s ongoing pain and disability. This is not entirely inconsistent with the opinion of Mr Dooley, the orthopaedic surgeon who examined the plaintiff at the request of the defendant. He expressed the belief that the plaintiff sustained a soft tissue injury to the lumbar spine that involved aggravation of underlying degenerative disc disease, also stating that it was certainly possible that the plaintiff sustained a left sided L4-5 disc prolapse. I would repeat that Mr Dooley referred to the plaintiff as presenting as a sensible and genuine historian.
57 Overall, I accept and prefer the views of those treating the plaintiff, views with which the opinions of the medico-legal examiners, Mr Awad and Mr Dooley, are at least to some extent consistent. I prefer those opinions to the somewhat dated view expressed by Mr Roth and the opinion of Dr Bloom, who is an occupational physician. I am satisfied that the plaintiff suffered the aggravation of lumbar spondylosis, effectively rendering that condition symptomatic. The plaintiff had experienced some minor back pain prior to the accident, but this was of nowhere near the magnitude, consistency or debilitating nature of that which she has continued to suffer since the accident. I also accept that, in approximately 2011, her condition advanced to a disc prolapse at L4-5, but there has been some improvement in that regard.
58 In short, I accept that the accident is and has been a significant contributing factor to the symptoms and restrictions from which the plaintiff suffers and that the injury is essentially the aggravation of lumbar spondylosis caused by the accident.
59 Whilst the injury is in the nature of an aggravation, in my opinion, any pain, suffering or restriction suffered by the plaintiff prior to the accident and in relation to her back was minor indeed. For example, I note that the history taken by Mr Awad that the plaintiff’s past medical history in relation to her back was one of very minor episodic lower back discomfort. I accept that the plaintiff suffered from what she has described as occasional bouts of back pain in her life, but that the overwhelming majority of symptoms and restrictions from which she suffers commenced with the accident and have continued thereafter. There may have been some fluctuations in the severity of the symptoms from time to time, but basically they have continued unabated.
60 I am of the view that the consequences of the impairment or loss of function of the low back are permanent within the meaning of the definition in that they will persist for the foreseeable future. Dr Bailey has referred to the fact that the plaintiff has chronic back pain which will need a long-term management strategy. Dr Matthews has expressed the opinion that the plaintiff is likely to have some persisting degree of back discomfort into the foreseeable future, although referring to a potential improvement in pain levels that could be achieved. In a recent report, Mr Awad has stated that the prognosis is poor and that the plaintiff is likely to suffer from a degree of pain and disability into the foreseeable future. In his most recent report, he has repeated that the plaintiff is likely to suffer the consequences of the injury in the form of pain and disability into the foreseeable future. Professor Bittar stated that the long-term prognosis was guarded. I accept that the relevant consequences of the accident are permanent within the meaning of the Act.
61 There is also the issue of disentanglement of injuries or consequences upon which the plaintiff does not rely. There is no doubt but that the plaintiff has a history of anxiety, depression and mental health problems. As she has sworn in her affidavit of 1 February 2016, over the preceding 10 years at times she had been extremely depressed and even suicidal. There were occasions when her mental state prevented her from being able to attend work. She has taken medication in relation to her psychological injuries.
62 Various reports from her consultant psychologist, Mr Jeff Berger, were put before me. The reports of Mr Berger essentially are not related to the accident, but to issues such as workplace bullying and harassment. In his last report of 10 July 2019, Mr Berger noted that the plaintiff was currently working at Josh’s Rainbow Eggs and had the position for over two years. He referred to the fact that there had been a significant improvement in relation to her depression and anxiety and in the symptoms of her Schizoaffective Disorder. He thought that she was currently fit for work in the role in which she was engaging, and that this would appear to be in the context of restrictions that might apply by reason of mental health problems. There is little, if any, detailed examination of the accident and its consequences.
63 A report from Dr Dianne Kirby, consultant psychiatrist with Bendigo Health, does not take matters much further. I should add that this report is dated 21 June 2018. It refers to the plaintiff suffering a long-standing, recurrent, psychotic illness associated with marked mood symptoms. There is reference to ongoing residual symptoms of a Schizoaffective Disorder. Dr Kirby also referred to persecutory delusions. The report seems basically to be directed towards whether the plaintiff needed a litigation guardian. Whilst there is reference to some mental disability, the consequences of relevance to the present application are not discussed in any detail.
64 A detailed report of 17 May 2018 from Dr Kirby to the Brooke Street Medical Centre contains a reference to chronic back pain, although this appeared to be less prominent during the interview conducted on that day. It is apparent that the plaintiff had suffered a recent psychotic episode in the context of the breakdown of her long-term relationship. Dr Kirby felt it likely that the plaintiff would be able to return to part-time work. Whilst this underlines the fact that the plaintiff has had mental health problems, it does not take matters much further.
65 Dr Alan Jager, consultant psychiatrist, examined the plaintiff at the request of the defendant, reporting on 30 October 2019. Dr Jager included a reference to the accident in the history taken. This reference includes mention of the facts that, when the plaintiff returned to work, the pain stayed the same and that she ceased working with the defendant because of back pain. It is noted that the plaintiff informed Dr Jager that she had hurt her back at work and still had low back pain. He was not of the view that the plaintiff’s current (mental) condition interfered significantly with her ability to undertake social activities, although there may be some reduction in relation to the undertaking of domestic tasks.
66 The impression gained from the reporting in relation to the plaintiff’s mental health is that the plaintiff’s attention was directed more towards alleged workplace bullying, relationship breakdowns and the like. There is not a great deal of mention of the plaintiff’s back condition. Any long-term behavioural disturbance or disorder shall not be taken into account and nor shall any consequences emanating from it. However, it must be said that the bulk of the plaintiff’s mental health complaints and conditions does not seem to be considered as emanating from the accident or to be considered by the plaintiff (or her examiners) as being related to it. The consequences which shall be taken into account are those relating to the injury.
67 As set out in the report of Dr Jager, examining at the request of the defendant, the plaintiff has a long-standing recurrent psychotic illness diagnosed as Schizoaffective Disorder. However, as at 30 October 2019, she presented to him without significant mood disturbance or psychosis. Overall, he considered her unfit to undertake her pre-injury duties, which required a considerable degree of cognitive skills.
68 It is not suggested by Dr Jager that the plaintiff’s constitutional Schizoaffective Disorder, which is long-standing, impacts in any clear way upon her pain and suffering related to the back injury. The same could be said of the most recent report, if not all reports, of Mr Jeff Berger, the treating psychologist.
69 In summary, whilst the plaintiff certainly has long-standing mental health problems, little or no aspect of them appears to overlap or be an aspect of the pain, suffering and loss of enjoyment of life consequences of the physical injury. There is no argument but that the plaintiff has had long-standing mental health problems and that these deteriorated to the extent of further hospitalisation being required in 2012.
(f) Other developments since the injury
70 It is apparent that the plaintiff has attempted employment since the injury. She continued working with the defendant, although missing some time due to a mix of symptoms in the back and her mental condition. Ultimately, her employment was terminated in August 2012. Her mental health problems continued and there were some domestic difficulties.
71 In October 2014, the plaintiff attempted some volunteer work in an opportunity shop, but could not cope because of back pain associated with prolonged standing. At some stage she undertook some work experience in a florist’s shop. In approximately March 2015, she undertook some trial work as a cleaner, but ceased that after approximately one week because of her back pain.
72 The plaintiff obtained casual work at Goonawarra Vineyard, undertaking some cleaning, waitressing and the like, for approximately 10-12 hours per week. She has sworn that she was able to work at a slower rate and the cleaning duties were much easier than those with the defendant. Accordingly, she could cope, but felt that she was working at her maximum capacity. That employment ceased because of a dispute which does not seem to have been related to her back condition.
73 The plaintiff is currently working as a part-time egg packer with Josh’s Rainbow Eggs at Monegeetta, which I understand to be near Sunbury. She is working two days a week for a little over eight hours per day. Her work consists of packing eggs into cartons and ultimately into boxes on a crate. She takes two Panadeine Forte before going to work and usually takes an additional tablet at lunchtime – see T11. She describes herself as just getting through the work, stating that by the time she finishes, she can barely sit down in the car and drive herself home.
74 I note that Dr Bailey has referred to this work as not improving the plaintiff’s pain or disability, which are exacerbated. I also note that she informed Dr Matthews that she needs to rest in bed after a day’s work and that her back pain increases towards the end of her shift.
75 In relation to her mental health, she was hospitalised for a period of approximately two to three weeks with a diagnosis of schizophrenia in April 2018. In his most recent report, the treating psychologist, Mr Berger, has stated that there has been a significant improvement in her condition and in relation to the symptoms of her Schizoaffective Disorder. However, ongoing treatment, medication and the like is required. He expressed the opinion that the plaintiff is fit for work in her current role. Relapses were possible, but she was currently being well-supported and monitored, including monitoring of her medication.
76 The plaintiff and her partner had split up, but this relationship was resumed in June 2019 and continues.
Ruling
77 In this matter, I am satisfied that the plaintiff has discharged the burden of proof. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a)As stated, I have no difficulty in relation to the credit of the plaintiff and find her to be an honest witness. In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448:
“Moreover, in serious injury applications the credit of the applicant is of great importance”.
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. Bearing the above in mind, I accept the plaintiff’s evidence, both oral and in the supporting affidavits, in relation to her pain, suffering and interference with her life as a result of the injury.
In this regard, I would also refer to what was said by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1 as follows:
“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”.
I have made it clear that I am of the view that the plaintiff presented as an honest and highly credible witness.
(b)The plaintiff has sworn that she has a constant aching pain in her lower back. It is centralised and spreads to both sides. It sometimes radiates to her legs. Her original treating general practitioner, Dr Bailey, reported in September 2017 that the plaintiff had chronic back pain, repeating this in her report of 8 June 2018. Mr Awad reported in April 2017 that the plaintiff had ongoing, constant lower back pain, with exacerbations that left her immobile. In his report of March 2018, he took a history of ongoing constant lower back pain, normally at 8/10 but with exacerbations to 10/10. In his most recent report, he again referred to her as having ongoing back pain. To Mr Dooley, the plaintiff complained of more intermittent episodes of back pain and of her symptoms varying from zero to 10/10.
The plaintiff also gave oral evidence that her back was very painful after working on a Wednesday and Thursday and despite taking Panadeine Forte. On such occasions she can barely walk. It takes time for her to recover. She also swore that there was also some pain, especially sitting, and the pain does not go away for any length of time – see T12.
As was said in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
The evidence establishes that the plaintiff takes frequent medication.
(c)To some extent, the plaintiff has got on with her life. She has found part-time employment, although this seems to be something of a struggle. In any event, this is not something which should count against her. As was said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260:
“… The appellant has been prepared to put up with his pain and suffering and get on with his business as best he can … It would be unfortunate, and in my view wrong-headed, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury”.
(d)What has been said above in relation to constant pain and the like is applicable to some other features of this particular injury. The plaintiff is a person who had grappled for years with mental health and other problems prior to the accident. Nevertheless, she had been able to engage in regular and permanent part-time employment duties in the aged care industry. I appreciate that this is not an application where leave is sought in relation to loss of earning capacity, but the principal avenue of employment in which the plaintiff had been engaged since approximately 2005, and in respect of which she had obtained certification, would now seem to be lost to her. According to Mr Dooley, examining on behalf of the defendant, her capacity is limited to light physical work and clerical type duties. Dr Awad has also referred to her as not having the capacity for her pre-injury employment, but being able to engage in a form of sedentary work. Dr Bailey said that the plaintiff will continue to be limited in relation to her work life. Dr Matthews said that the plaintiff does not have any capacity to work as a cleaner and placed various restrictions upon her employability. Thus, it would seem that the employment in which the plaintiff was engaged and for which she had obtained qualification is lost to her and that there are restrictions upon the work in which she can engage.
(e)I also accept that there has been interference with the plaintiff’s everyday life and activities. She has problems with extended walking or standing. The same could be said for sitting. There are problems with the carrying of heavy objects. She has difficulty in keeping her house clean and tidy. She has sworn as to the fact that there are problems with vacuum cleaning, dusting and the like. Simple matters such as the putting on of shoes and socks of a morning cause pain, as does washing herself. Driving for long distances is difficult. The plaintiff says that, after the work which she does perform, such things as sitting down to watch the television and trying to get up again create real problems – see T12. She has performed work doing light cleaning, light gardening (although she can only mow a little strip of grass at home with great difficulty – see T24) and the like, but it is apparent that the injury has had a very real impact upon her capacity to perform many tasks.
(f)The plaintiff has also sworn that she has interrupted sleep due to her pain. It takes her a long time to get to sleep and she wakes up during the night if she has rolled into an uncomfortable position. She gave evidence that, when she tries to roll over during the night, it hurts. When her back is sore, she takes Panadeine Forte in an endeavour to sleep – see T47.
As was said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 by Maxwell P:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep”.
(g)Whilst the plaintiff is no longer taking morphine based medication, she has sworn that she takes medication so that she can go to work. If she does not take the medication, her pain is quite severe. She made it quite apparent that she is a regular consumer of Panadeine Forte – see, for example, T47. In relation to the frequent consumption of medication, I would refer again to what was said in Tatiara Meat.
78 Bearing in mind all of the above, I find that the plaintiff has discharged the burden of proof.
Conclusion
79 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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