Angeleski v Ensign (Australia) Pty Ltd
[2010] VCC 792
•25 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04780
| SLAVICA ANGELESKI | Plaintiff |
| v | |
| ENSIGN SERVICES (AUSTRALIA) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 and 17 June 2010 |
| DATE OF JUDGMENT: | 25 June 2010 |
| CASE MAY BE CITED AS: | Angeleski v Ensign (Australia) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0792 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – whether the plaintiff suffered an aggravation/acceleration of pre-existing underlying degenerative changes in her upper back – identification of the injury – identification of the body function which was said to be impaired – whether the pain and suffering consequences of the aggravation/acceleration were at least very considerable – whether the plaintiff's failure to undertake recommended rehabilitation prevents the plaintiff from establishing a loss of earning capacity: section 134AB(38)(c) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Gorton QC with | John Dellios & Associates Pty |
| Mr I McDonald | ||
| For the Defendants | Mr R Stanley QC with | Herbert Geer |
| Ms K McNaught | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 7 October 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr R Gorton QC appeared with Mr I McDonald of Counsel for the plaintiff, and Mr R Stanley QC appeared with Ms K McNaught of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the spine.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered her Court Book ("PCB"), pages 37-45F; 55-59; 80- 81; 89, and 91-196: Exhibit A
• The defendant tendered its Court Book ("DCB") pages 1-141: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
9 The plaintiff was born in Macedonia on 19 January 1960. She is a married woman. She has two adult children.
10 The plaintiff obtained modest education in Macedonia. She left school when she was sixteen years of age. She then worked on the family farm.
11 The plaintiff arrived in Australia in 1979. Her facility with the English language is modest.
12 After arriving in Australia, the plaintiff worked principally for the first defendant. She commenced working as a laundry operator on 7 November 1983. She subsequently worked on the production line. All in all she had worked for the first defendant for twenty two years by 2005.
The Plaintiff's Work
13 The production line work required the plaintiff to work 9.5 hours per day, four days per week, and then 12 hours per day, three days per week. She was required to check laundry. She described the physical demands of that work in the following way:
"I was required to stand for long periods scanning garments as they went along the line. The duties involved a great deal of bending, stooping and twisting and I would have to lean forward with my neck bent over for long periods. There was no rotation from having to perform these duties."[5]
[5] PCB 38-39
14 The plaintiff suffered injury to her upper back and shoulder. The occasions on which she suffered from those injuries are as follows:
•
In about May 1994, the plaintiff lodged a Claim for Compensation as a result of suffering pain in her upper back and shoulder. She was off work for two weeks. She was referred to have physiotherapy treatment.
•
In 2001 and 2002 she suffered upper back pain. She saw Dr Lamba, general practitioner. She was prescribed Vioxx for pain relief.
•
She continued to experience pain in her upper back and shoulder through 2003 and 2004.[6]
[6] PCB 39
15 The plaintiff continued working through 2003 and 2004 despite experiencing pain in her upper back and shoulder. She persevered with her work, being motivated to do so because her husband had not worked for years. She was the only breadwinner in the family.[7]
[7] PCB 39
16 At the beginning of 2005, the tasks which the plaintiff was required to undertake changed. She described the changes as follows:
"At the beginning of 2005 my job was changed. I was then required to take wet garments and place them on a hanger and put them on an overhead line. The line was operated by pressing a button, but regularly I would have to push the bundles of garments along the line. The work was very heavy because the garments were wet and I had to lift many items per hour. I am pretty short and I had to reach well above my head to place the garments onto the overhead line. I was handling wet work clothes which came from the washing machines along the conveyor line which I had to pull and untangle from the conveyor line and hang them up onto hangers. This placed a great deal of strain on my upper back, neck and shoulders. I would perform this work for 4 hours and then perform the duties on my old line, but then after 4 hours returned to the new job, as I worked a 12 hour shift. In both jobs there was no rest from duties placing strain on my upper back, neck and shoulders, but the job with the wet garments was by far the worst and brought on the severe pain."[8]
[8] PCB 40, and Transcript 20
17 During cross-examination, the plaintiff said that 28 February 2005 was a significant day. It was on that day that she said she was unable to pull garments to do her work, resulting in her suffering severe pain.[9]
[9] Transcript 21-22
18 The pain in the plaintiff's neck and upper back worsened. She returned to Dr Lamba for treatment. She ceased working on 21 March 2005. She attempted to return to work in July 2005 which was unsuccessful.
The Issues
19 At the commencement of his final address, Mr Stanley submitted that the issues which were raised by the application were as follows:
• Whether the plaintiff suffered any injury post 20 October 1999. • The identity of any injury which the plaintiff suffered post 20 October 1999. •
If the plaintiff did suffer an injury post 20 October 1999, whether the cause of it had long ceased, and whether her current problems are due to underlying degenerative changes only.
•
The reliability of the medical evidence because the plaintiff had not informed a number of medical practitioners of the injuries she suffered pre- 20 October 1999.
•
If the plaintiff did suffer an injury post 20 October 1999, whether the impairment of function to her neck and upper back can be aggregated.
•
If the plaintiff did suffer an injury post 20 October 1999 to her spine, then what consequences are referable to impairment of function of the spine in terms of pain and suffering and loss of earning capacity.
•
Whether the plaintiff's failure to undertake the rehabilitation advised by Dr Thomas, consultant in rehabilitation and pain medicine, prevents her from succeeding in her claim for loss of earning capacity consequences by reason of subsection (38)(g).
• The plaintiff's credit generally.
The Plaintiff's Prior Injuries
20 The defendants tendered the clinical records of Dr Lamba.[10] Mr Stanley extracted recent clinical notes which he submitted were to determine the nature and extent of injuries which the plaintiff suffered to her neck, upper back and shoulders prior to 20 October 1999.[11]
[10] DCB 100-136.
[11] DCB 136A
21 The relevant entries which he referred me to are as follows:
• 5 February 1996 - pain in the back. The plaintiff was prescribed Voltaren. • 14 October 1998 - pain in the back. It would appear that the plaintiff was told to use Panadol, and was prescribed Voltaren. • 8 May 2001 - pain in the back and upper back. There is no notation that the plaintiff told Dr Lamba that she was unable to do her work. She was prescribed Voltaren. • 17 July 2002 - pain in the back. The plaintiff was prescribed Vioxx. • 8 August 2002 - pain in the back. • 2 October 2002 - the entry is difficult to read. I am not convinced that it refers to the plaintiff’s spine. • 27 January 2005 - pain in mid upper back. • 1 February 2005 - neck pain.[12] [12] The foregoing is a summary, but not a complete description of each entry. The clinical notes are both cryptic and in poor handwriting which made it difficult to decipher the whole of the entries.
22 Mr Stanley cross-examined the plaintiff at length in relation to the injuries she suffered to her upper back from about 1994. At the time when the plaintiff completed a claim form in about May 1994, she was working on a machine known as the "digisort".
23 The plaintiff said that she worked on that machine throughout her employment up to 2005. She said that she suffered injury to her upper back as a result of that work. She said it was the same area of her upper back where she now has a problem.[13]
[13] Transcript 13
24 The plaintiff said that she saw Dr Lamba in about May 1994 for treatment. He referred her to have an x-ray. He also referred her to have physiotherapy. He certified her as unfit for work.[14] The plaintiff said that in 2005, she had the same sort of treatment.
[14] Transcript 13-14
25 Mr Stanley sought to draw a parallel between the nature and extent of the pain and disability the plaintiff was suffering prior to 2005 with what the plaintiff suffered in 2005. The plaintiff consistently replied that the pain was slight prior to 2005, but thereafter was severe.[15]
[15] Transcript 14
26 The plaintiff conceded that she sought medical treatment between May 1994 and prior to 2005. She said that it was not the case that throughout the whole period between May 1994 and onwards that she was taking painkilling medication for her neck and upper back. She said she would take medication when she suffered muscular soreness in order to obtain relief from the soreness, but there were other occasions when she did not take medication.[16]
[16] Transcript 16
27 The clear distinction which the plaintiff sought to draw was that it was the work she was required to do at the beginning of 2005 which resulted in her aggravating the pre-existing problem she was having with her neck and upper back, and in particular, on 28 February 2005.
The Plaintiff's Medical Treatment
28 The clinical records of Dr Lamba demonstrate that the plaintiff did suffer pain in her back from May 1994. However, the occasions on which she sought medical treatment do not support the submission made by Mr Stanley of a picture of persistent pain and disablement.
29 There are significant gaps in between occasions when the plaintiff sought medical treatment from Dr Lamba. For example, she saw Dr Lamba on 5 February 1996 complaining of back pain, but then not again until 14 October 1998. She then saw Dr Lamba on two occasions in May 2001, and then on three occasions in 2002. She did not see him after 2 October 2002 until 27 January 2005.
30 The number of occasions that the plaintiff saw Dr Lamba, if taken alone, does not suggest to me that the plaintiff was suffering from a chronic and disabling back condition. However, when the plaintiff's evidence is added, from her first affidavit and her oral evidence, it is clear that she suffered pain in her neck, upper back and shoulder from time to time and used medication when she needed to.
31 What strikes me as being obvious is that something occurred in early 2005 which altered the nature and degree of the problems the plaintiff was experiencing with her neck, upper back and shoulder. The plaintiff says it was the work she was required to undertake. The defendants say what occurred from early 2005 onwards was simply more of the same when a comparison is made with the problems the plaintiff was having from May 1994 onwards.
32 The plaintiff first saw Dr Lamba on 21 March 2005. He recorded that the plaintiff told him that she had pain in her neck and upper back. On examination, he found tenderness over the plaintiff's neck area and dorsal spine. Her neck movements were restricted and painful. He prescribed Panadeine Forte and referred her to physiotherapy.[17]
[17] PCB 107-108
33 Dr Lamba provided five medical reports spanning 2005 through to May 2010. Each report contains a consistent description of the pain the plaintiff was experiencing in her neck and upper back and the extent to which Dr Lamba considered it was disabling.
34 In his last report dated 19 May 2010, Dr Lamba found tenderness over the plaintiff's neck and upper back, and neck movements which were restricted and painful. He was of the opinion that the plaintiff had suffered an overuse syndrome and a sprain of her back and neck. At that stage, he was prescribing the plaintiff Panadeine Forte and Mobic for pain relief. He also referred her to have acupuncture.
35 Dr Lamba was of the opinion that the condition for which he was treating the plaintiff was consistent with being produced by the work duties undertaken by her. He had not seen any change in her condition over the period he had treated her since 21 March 2005. His prognosis was that the plaintiff was totally and permanently incapable of returning to her pre-injury duties.[18]
[18] PCB 116A-116D
36 The plaintiff also saw Dr Andrewes, general practitioner, on 21 March 2005. She was referred to Dr Andrewes by the first defendant. He diagnosed a soft tissue repetitive injury to the right shoulder girdle. He recorded a history that the plaintiff told him that the injury occurred three or four weeks before she saw him. He certified the plaintiff as unfit for work from 21 to 25 March 2005. He considered that she should have restrictions imposed upon her not to work with her neck flexed; to have her arms by her side or within 45 degrees; no lifting over 3 kilograms, and that she should work part-time hours.[19]
[19] PCB 93. Some of the handwriting on the one-page assessment form completed by Dr Andrewes is difficult to decipher.
37 Dr Lamba referred the plaintiff to Mr Justin McGrath, physiotherapist. He first treated the plaintiff on 8 April 2005.[20] Mr McGrath has treated the plaintiff to the present time. In his last report dated 22 May 2010, he diagnosed the plaintiff's injury as a chronic severe cervico-thoracic condition related to her employment over twenty three years.
[20] PCB 94
38 Mr McGrath recorded a history that the plaintiff told him that in February 2005, she was putting heavy wet garments onto coat hangers and suffered a sharp increase in her pain in the cervical and thoracic spine and had to cease work.
39 Mr McGrath was of the opinion that the plaintiff would not be able to return to her pre-injury duties and would only be fit for light duties on a part-time basis. He was also of the opinion that the plaintiff would require up to ten physiotherapy treatments per year for the remainder of her life.[21]
[21] PCB 106A-106F
40 Dr Lamba referred the plaintiff to Mr Johnson, orthopaedic surgeon. It would appear that Mr Johnson saw the plaintiff in early August 2005. Mr Johnson recorded a history obtained from the plaintiff that she had suffered symptoms of pain in her thoracic spine for about one year, which increased on 28 February 2005. He suspected that the plaintiff's pain was related to degenerative disease in the mid thoracic region of his spine.[22]
[22] PCB 194-195
41 Mr Johnson referred the plaintiff to Dr Thomas. The plaintiff first saw Dr Thomas on 19 September 2005. He obtained a history that the pain the plaintiff experienced in her interscapular region was of gradual onset in 2004, and a history of what the plaintiff said occurred on 28 February 2005.
42 Dr Thomas was of the opinion that the plaintiff's interscapular pain had probably arisen from her thoracic spine, representing symptomatic spondylosis.[23] Dr Thomas specifically addressed the issue whether the pain the plaintiff was experiencing was constitutional. He was of the opinion that it was not, and that the plaintiff's work was a significant contributing factor and material contributor to the injury.
[23] PCB 117-119
43 Dr Thomas reviewed the plaintiff on 9 December 2005, and examined her on a medico-legal basis on 26 July 2006. His opinion regarding the nature of the injury suffered by the plaintiff did not change, nor did his opinion on the question of causation.
44 Dr Thomas advised the plaintiff to attend a rehabilitation program at the Dorset Rehabilitation Centre. When he reviewed the plaintiff on 9 December 2005, she informed him that she had not attended the rehabilitation program because she was unable to get there.[24] He was of the opinion that the plaintiff had a capacity to work partial hours on light duties with her arms extended to no more than 45 degrees; with no lifting of more than 2 to 3 kilograms, and avoidance of flexion of her neck.[25]
[24] PCB 126
[25] PCB 127
45 Dr Lamba referred the plaintiff to Mr Barrett, orthopaedic surgeon. The plaintiff saw him in about June 2009. Mr Barrett referred the plaintiff to have an MRI scan.[26] After examining the plaintiff and reviewing the MRI scan, he wrote to Dr Lamba, saying that the plain x-rays and the MRI scan showed up abnormalities in the plaintiff’s cervical spine, but overall Mr Barrett was unable to pinpoint any significant cervical pathology or injury to account for the plaintiff’s symptoms.[27]
[26] PCB 92
[27] DCB 142
46 The plaintiff continues to see Dr Lamba for treatment. He is of the opinion that she is unfit for work. He provides her with prescriptions for medication, namely Panadeine Forte, Panamax and Mobic. She uses Mobic every day. Since 2005, her medication has changed to include Panadeine Forte and Panamax, in addition to the anti-inflammatories she was using before.[28]
[28] Transcript 40
The Other Medical Evidence
47 The plaintiff was examined by a number of specialists on a medico-legal basis. Their opinions are not all that controversial. A summary of those opinions is as follows:
•
Dr Harkness, rheumatologist, examined the plaintiff in about October 2006. He diagnosed her injury as an aggravation of thoracic spondylosis. He was of the opinion that she had no capacity to do her pre-injury work or any other work involving prolonged standing, bending, lifting or carrying.
•
Mr Brearley, orthopaedic surgeon, examined the plaintiff on 10 November 2006 and in about March 2010. On both occasions he diagnosed the injury as a chronic cervico-thoracic strain comprising a chronic musculo- ligamentous injury of the supporting structures of the upper thoracic and lower cervical spine. He was of the opinion that she was incapacitated for all of her pre-injury work and essentially had no current work capacity. However, he qualified that by saying that if she were capable of suitable employment, she would need periodic rest breaks, intermittent days off, and would only be capable of working three hours per day, four days per week.[29]
•
Mr King, orthopaedic surgeon, examined the plaintiff in about October 2006 and in about February 2010. He was of the opinion that the nature of the work undertaken by the plaintiff exposed her cervical and thoracic spine to stresses and strains superimposed upon pre-existing but symptomless mild degenerative changes causing the gradual onset of neck and upper thoracic pain. He was of the opinion that she had no current work capacity and was not fit for suitable employment for practical purposes. He did not consider that she was a candidate for retraining.[30]
•
Dr Fraser, rheumatologist, examined the plaintiff for the defendants on 16 June 2005 and 6 April 2006. Initially, he was of the opinion that the pre- existing spondylosis in the plaintiff’s thoracic spine had been aggravated by her work, but not accelerated by it. When he examined her again, he was of the opinion that she had recovered from any work-related aggravation, and that her symptoms were due to underlying degenerative changes. He considered that she was fit to return to the work referred to in three Return to Work Plans which were provided to him for his consideration.[31]
•
Dr Kenna, consultant in musculoskeletal pain management, examined the plaintiff for the defendants on 26 April 2005. He was of the opinion that the plaintiff had suffered a sprain/strain and had aggravated underlying and pre-existing degenerative changes in her mid thoracic spine. He considered that this was work-related. He was of the opinion that the plaintiff was not fit to return to work at the time he examined her.[32]
•
Mr Jones, orthopaedic surgeon, examined the plaintiff for the defendants on 20 October 2010 and 15 July 2009. He was of the opinion that the plaintiff had a mild degree of degenerative disease affecting her cervical spine and a moderate degree of spondylosis affecting her thoracic spine. He accepted that she had aggravated those degenerative changes, but that the aggravation was transient. He did not accept that she required any medication, and he considered that she was fit to undertake full-time employment with restrictions relevant to bending, lifting and heavy pulling and pushing.[33]
•
Mr Buzzard, surgeon, examined the plaintiff for the defendants on 30 September 2008. He was of the opinion that the plaintiff had degenerative disease throughout her spine. He accepted that there had been an aggravation of the degenerative changes, but by the time of his examination, her symptoms were no longer related to her work, but to an underlying degenerative disease process. He was of the opinion that the plaintiff could not work in a job requiring constant forward flexion of her neck, but that would not preclude her from all of the work she was undertaking with the first defendant.[34]
[29] PCB 135-138
[30] PCB 154-156
[31] PCB 9 and 6
[32] DCB 11-13
[33] DCB 20-21, 24-25 and 26
[34] DCB 81-82
Did the Plaintiff Suffer an Injury Post 20 October 1999?
48 The plaintiff candidly admitted that she had suffered pain in her back from about May 1994. Although Dr Lamba's clinical notes refer to “back”, it is clear from his reports that the plaintiff was suffering from pain in her neck and upper back, and to some extent in a shoulder.
49 Dr Lamba's clinical notes also demonstrate that the plaintiff had suffered from pain in her neck and upper back from about May 1994.
50 I accept the plaintiff’s evidence that while she experienced pain in her neck and upper back, she was able to tolerate it most of the time, but some of the time she resorted to medical treatment provided by Dr Lamba. I accept that she resorted to using medication when needed. However, I do not accept the submission made by Mr Stanley that once the plaintiff began to suffer pain in her neck and upper back in May 1994, that it set in and became an established pattern of fairly constant pain and disablement.
51 There are three aspects of the evidence which strongly militate against such a conclusion being open: firstly, the plaintiff's evidence of the extent to which she suffered from pain in her neck and lower back from May 1994; secondly, the clinical notes of Dr Lamba do not demonstrate such a pattern, and thirdly, I accept that the plaintiff was involved in manual work which tested her ‘day in day out’. She was able to cope with that, demonstrating that the nature and degree of her neck and lower back problems from May 1994 were not that significant.
52 Furthermore, the last occasion before 2005 when the plaintiff saw Dr Lamba for treatment was on 2 October 2002 which is some two-and-a-half years or so before the plaintiff claims that she suffered a major aggravation of the problems she had previously experienced in her neck and upper back on or about 28 February 2005. It is a significant period of time without medical treatment, and entirely inconsistent with someone characterised as having a significant pattern of fairly constant pain and disablement.
53 I accept the plaintiff’s evidence that while she was able to tolerate the work she was doing until 2005, that she was unable to tolerate the change in the work she was required to do at the beginning of 2005 when her job changed. On the basis of the uncontradicted evidence of the plaintiff, it was heavy work with components which were markedly different when compared with the work she previously undertook.
54 The emergence of more severe pain and disablement as at 28 February 2005, when the plaintiff was undertaking that heavy work, is more than just coincidental. I find that it was the work she was undertaking of that kind which aggravated the underlying degenerative changes in her neck and upper back.
55 Mr Stanley submitted that the weight of the evidence is such that I should not accept that the plaintiff suffered any injury in 2005. I reject that submission.
56 Firstly, I accept the plaintiff’s evidence regarding the work she was doing at that time and that it was heavy and markedly different from the work she had undertaken previously sitting.
57 Secondly, Dr Lamba had no difficulty in accepting that the plaintiff had suffered an injury, although he chose to describe it rather curiously as an overuse syndrome sprain of the back and neck.[35]
[35] PCB 116B
58 Thirdly, none of the medical practitioners who have examined the plaintiff either from a treatment perspective or on a medico-legal basis have found that there was no aggravation.
59 I do not accept the opinions of Dr Fraser, Mr Jones and Mr Buzzard that the plaintiff's present condition is due to an underlying degenerative disease process, and that aggravation caused by her work had long ceased.
60 The basis for that opinion is not explained, save that by inference in some manner, the plaintiff's work aggravated the underlying degenerative disease process and made it symptomatic, and in some way and at some time the aggravation has ceased, yet the symptoms have persisted due to that underlying degenerative disease process.
61 Just as a trial judge is required to disclose his/her pathway of reasoning, so must an expert in order to permit the recipient of the opinion to understand how it is that the expert arrived at a particular conclusion.
62 Mr Gorton referred me to Darling Island Stevedoring and Lighterage Co Limited v Hankinson[36] to demonstrate that where work accelerates a pre- existing disease process, then it is enough to entitle the sufferer to an award of workers compensation in the same way and the same extent as would be the case with any other injury.[37] Furthermore, Barwick CJ observed:
“When seeking to ascertain the result of the injury — the acceleration of the disease — I am unable myself to abstract the acceleration as if it were a causative entity apart from the disease in its accelerated state. Here, analysing the facts as did the Commissioner, the work accelerated the progress of the spinal infection. Incapacity resulted. It resulted from the then — accelerated — condition of the infection. That incapacity was permanent — it was not temporary. In my respectful opinion, it is not permissible so to isolate the acceleration of the disease as to attribute a part only of that permanent incapacity to the acceleration.[38]
[36] [1967] 117 CLR 19
[37] at 26-27
[38] at 27
63 I took the submission to go directly to the question I posed to Mr Stanley regarding the basis upon which Dr Fraser, Mr Jones and Mr Buzzard formulated their opinion.[39]
[39] Transcript 59-62
64 It seems to me whether the injury is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease,[40] the same sense of logic must apply, that is, how does one abstract any of those causes of an injury from the disease process in its aggravated or accelerated state?
[40] The expressions are taken from the definition of "injury" in section 5(1) of the Act
65 Mr Stanley submitted that the plaintiff had not given a satisfactory history, or in some cases any history, of her prior neck and upper back problems to any of the examining medical practitioners, rendering their opinions unreliable.
66 I reject that submission. It seems to me that every examining medical practitioner was exposed to some or all of the radiological studies.[41] Each of them was aware that the plaintiff had underlying degenerative disease in both her neck and upper back.
[41] a plain x-ray at PCB 91 and an MRI scan at PCB 92
67 I do not accept that the history of the plaintiff’s pre-existing problems with her neck and upper back are of any real significance principally for the reasons which I set out in paragraphs 50-54 above. I think it would be another matter if the plaintiff had suffered a serious discal injury, and without giving a history of that injury, misled examining medical practitioners into believing that a subsequent incident was a significant, or only cause of the discal injury.
68 Without repeating the analysis I have already made, it seems to me that the nature of the work the plaintiff was undertaking in 2005 had all the hallmarks of it being arduous work which was likely to cause a serious aggravation/acceleration of the underlying degenerative disease in the plaintiff’s neck and upper back such as to render it symptomatic and disabling.
69 The foregoing deals with the first four bullet points which identified the issues raised by Mr Stanley.
The Injury
70 In my experience, medical practitioners in different disciplines of medicine, and sometimes within the same discipline of medicine, will describe an injury in different ways when intending to give a description of the very same pathological process.
71 The identification of the injury for the purpose of an application like this does not require the plaintiff to identify the actual pathological process said to constitute the injury with any particular precision. I think all that is required is that it be described sufficiently for the purpose of enabling the identification of the body function said to be impaired.
72 Here, there was little doubt that the plaintiff had an underlying degenerative disease process which has been aggravated/accelerated. The fact that many of the medical practitioners who have examined the plaintiff have chosen to use different terminology to describe the aggravation/acceleration does not mean that I cannot conclude that the plaintiff has suffered an aggravation/acceleration of underlying degenerative disease in her neck and upper back which is now symptomatic.
73 I think that is all a judge is called upon to determine. Having reached that point, it is clear enough to me that the injury as I have defined it permits me to understand that the body function that it impaired is the plaintiff’s spine, and if I need to be more particular about that, then the plaintiff's upper spine.
Aggregation
74 I do not accept that the fact that medical practitioners refer to the spine as the cervical spine, thoracic spine and lumbar and lumbosacral spine are intended to mean that they are each discrete areas of the spine, and therefore, must be treated as separate body functions.
75 There was no evidence put before me to support such a conclusion. It was asserted in the defendants’ statement of issues.
76 In most cases, a conclusion whether the body functions are discrete and separate, or are actually part of the same body function, is a question of fact.
77 It seems to me that the spine is made up of bony blocks called vertebrae, with intervertebral discs and other structures which, when combined, create a functioning mechanism called the spine. I think the fact that it may be conveniently described by different terms is a matter of convenience rather than designating that each term indentifies a separate body function.
78 Therefore, I reject the submission that the cervical spine and the thoracic spine are separate body functions.
Serious Injury
Pain and Suffering
79 I accept the plaintiff’s evidence that the work which she undertook in 2005 was the cause of an aggravation/acceleration of the underlying degenerative disease in her neck and upper back.
80 I accept that the aggravation/acceleration was major in extent and degree, because it took the plaintiff from someone who was quite capable of working in a manual occupation, who suffered pain intermittently and who used medication intermittently, to someone who was incapacitated and required more vigorous medical treatment.
81 The plaintiff has been prescribed a variety of medication which is both designed to reduce the pain she experiences and the inflammation in her neck and her mid back. She has also undergone a significant degree of physiotherapy since Mr McGrath took over her treatment, and according to him, she will require physiotherapy treatment for the balance of her life.
82 None of these features were present prior to 2005, but rather the medical treatment she obtained previously has given me the strong impression that it was rather modest and of little consequence given the way in which the plaintiff was able to keep working and go about her social, domestic and recreational routine.
83 I find that the impairment of the function of the plaintiff’s neck and upper back is permanent. I think that is an obvious inference from all of the medical evidence which I prefer. It is clear that Dr Lamba considers that the plaintiff requires ongoing medication to treat the pain and inflammation in her neck and upper back, and that Mr McGrath considers that the plaintiff requires ongoing physiotherapy treatment.
84 The plaintiff swore two affidavits, on 21 May 2009 and 16 June 2010. I accept the evidence deposed to by the plaintiff in those affidavits.
85 I accept that the plaintiff has suffered significant pain in her neck and upper back. I accept that the plaintiff's capacity to move her neck in a full, free and unrestricted manner is now dramatically reduced. I accept that she has further pain when she raises her arms to shoulder level or engages in episodes of lifting.
86 I accept that the plaintiff's husband and son assist her with domestic tasks such as vacuuming and mopping. I accept that she has difficulty washing the dishes, washing and hanging out clothes and going shopping.[42]
[42] PCB 42-43 and 45C-45E
87 I accept that the plaintiff is not able to engage in her pre-injury duties. I accept that she is probably unfit for most factory and labouring work, but is probably fit for some light work on a part-time basis.
88 It seems to me that the plaintiff's pain and suffering consequences bear all of the characteristics of consequences which deserve the description “at the least very considerable”.
89 The fact that the plaintiff requires active medical treatment, and will require it indefinitely, experiences significant pain and interference with her social, domestic and recreational routine, and has been and will be unable to return to work consistent with her work pattern before she suffered the injury on which this application is based, are consistent with pain and suffering consequences which are at least very considerable. I have reached the foregoing conclusion after having made the relevant comparison with other cases.
Loss of Earning Capacity
90 I accept that the plaintiff is not fit for her pre-injury duties, but I am not satisfied that the plaintiff is unfit for all suitable employment.
91 Mr Johnson referred the plaintiff to Dr Thomas for the express purpose of Dr Thomas treating the plaintiff and advising her on the best course to pursue to regain what she had lost.
92 Dr Thomas was aware that the plaintiff had attempted to return to work in July 2005,[43] and that the return to work had failed. When he first saw the plaintiff on 19 September 2005, he was of the opinion that the plaintiff had a capacity to return to work. He considered that a carefully orchestrated return to work plan needed to be formulated in conjunction with a rehabilitation program.
[43] PCB 41
93 Dr Thomas organised for the plaintiff to attend the Dorset Rehabilitation Centre. However, the plaintiff refused to attend. Dr Thomas recorded the plaintiff's reasons for not attending, as follows:
"When I reviewed her on 9 December 2005, she told me that she had not attended a rehabilitation program. She stated that she was not able to get to the centre because she had anxiety and nervousness when she was driving. She told me that she was not able to get a lift. It seemed to me that she was quite keen not to attend Dorset Rehabilitation Centre."
94 He then said:
"I felt that her physiotherapy could still be more actively based and I strongly recommended that she attend Dorset Rehabilitation Centre, but at the end of the day conceded that there would be no point attending unless she were (sic) strongly motivated to do so."[44]
[44] PCB 125
95 Dr Thomas obviously considered that rehabilitation would be of benefit to the plaintiff and might return her to a better level of functioning and a capacity for work which she could exercise.
96 Mr Stanley submitted that the plaintiff's reasons for not attending rehabilitation were unimpressive. He submitted that if the plaintiff had some fear of driving then she could have taken a taxi or had her husband or son drive her. The plaintiff’s husband drives a car. He does not work, and has not worked for many years due to an injury which he suffered in an industrial accident.
97 The plaintiff lives in Epping. Dorset Rehabilitation Centre is in Pascoe Vale. According to my Melway's ‘Greater Melbourne Street Directory’, the distance from Epping station to the Dorset Rehabilitation Centre is a little less than 12 kilometres. It does not strike me as being a distance presenting a great obstacle to the plaintiff travelling by public transport at least. She did not give any evidence that she is not capable of using public transport.
98 Subsection (38)(g) is a rather convoluted piece of drafting. Essentially, it means that the plaintiff does not establish a loss of earning capacity if she could have undertaken rehabilitation, or made reasonable attempts to do so, with a view to determining whether she has a residual capacity for employment which, if exercised, would result in her earning more than 60 per cent of her gross income from personal exertion.
99 The plaintiff's refusal to undertake rehabilitation appears to me to be unreasonable. The only impediment to getting to the Dorset Rehabilitation Centre was the plaintiff’s alleged inability to drive. It is obvious from her evidence that she did not investigate alternatives which might have been available to her to get there, which was no doubt the reason why Dr Thomas observed that the plaintiff was not strongly motivated to undertake rehabilitation, and therefore, that there was no point in her attending.
100 As harsh as the legislation might be, the purpose behind subsection (38)(g) is essentially to determine whether there are steps reasonably available to the plaintiff to exploit whatever residual capacity for employment she might have by pursuing rehabilitation and retraining.
101 If the plaintiff could have pursued rehabilitation and retraining, but does not, and refuses to undertake it, then this has a direct impact upon whether she can establish a loss of earning capacity or not.
102 The conclusion I have reached is that I do not know whether the plaintiff has a residual capacity which she can exercise in suitable employment in the absence of her pursuing well-considered advice given by an experienced medical practitioner specialising in rehabilitation.
103 Balanced against that is the evidence which Mr Gorton referred me to where the emphasis was very much directed to the plaintiff’s incapacity for her pre- injury duties, and a theoretical capacity to undertake part-time light duties, and some medical opinions which suggest that the plaintiff has no realistic capacity to return to suitable employment.
104 However, those opinions seem to me to be inferior to that of Dr Thomas who was in a very good position to make an assessment of whether rehabilitation would be of any benefit to the plaintiff, and there is no doubt that he was of that opinion.
105 Therefore, I have reached the conclusion that the plaintiff has failed to discharge the onus she bears to prove that she has suffered loss of earning capacity.
Conclusion
106 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of her employment with the first defendant.
107 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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