Antonellos v VWA
[2021] VCC 686
•31 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03179
| MARIA ANTONELLOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2021 | |
DATE OF JUDGMENT: | 31 May 2021 | |
CASE MAY BE CITED AS: | Antonellos v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 686 | |
REASONS FOR JUDGMENT
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Subject:Accident Compensation
Catchwords: Serious injury; back injury; aggravation; consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 s 325(1); s 335(2)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; TTB SMS Pty Ltd v Reading
[2020] VSCA 203Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Macnab | Slater & Gordon |
| For the Defendant | Mr C. Miles | Lander & Rogers |
HIS HONOUR:
Introduction
1Maria Antonellos was employed by Australian Scholarships Group (“the employer”) in June 2016 when she suffered an injury to her back in a fall at a supermarket during a work recess. There is no dispute that her injuries were sustained in compensable circumstances. In the present proceeding Ms Antonellos seeks leave to claim damages on the basis that she has sustained a serious injury as defined in paragraph (a) of the statutory definition set out in s 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2Mr Macnab of counsel, who appeared on behalf of Ms Antonellos, identified the low back as the body function said to be relevantly lost or impaired for the purposes of the definition. He accepted that Ms Antonellos had previously experienced some lower back problems and urged the court to grant leave on the basis that the 2016 incident had relevantly aggravated his client’s condition to the extent that leave should be granted.
3The principal consequence impacting Ms Antonellos was that of constant and unremitting back pain, which in turn restricts social, domestic and recreational activities. Mr Macnab informed the court that Ms Antonellos had returned to employment on a limited basis as a medical receptionist in 2018, eventually progressing to full-time hours when required in 2020. There was no claim made for leave in respect of pecuniary loss.
4Mr Miles on behalf of the defendant opposed leave on the basis that the consequences of the 2016 incident were such that they did not reach the threshold necessary to entitle Ms Antonellos to a grant of leave.
5Ms Antonellos was the only witness required for cross-examination. The evidence relied upon by the parties was otherwise tendered from their respective court books. For completeness I note that the hearing conducted on 24 February 2021 proceeded by way of audio visual link.
The evidence
6Ms Antonellos swore two affidavits in support of her application on 10 March 2020 and 19 February 2021.[1]
[1]Exhibit A, pp 18-27
7In her first affidavit Ms Antonellos described her background, noting her education to Year 10 in Echuca, a brief period of local work as a shop assistant, and performing office work with a firm of chartered accountants in Melbourne, interrupted by the birth of two of her three children.[2]
[2]Exhibit A, p 19 [4] to [7]
8Her affidavit goes on to describe a lengthy period working as a self‑employed cleaner between approximately 1996/97 and 2014 when she ceased due to worsening back pain. She then commenced with the employer as an administrative officer in January 2015 on a short-term contract.[3]
[3]Exhibit A, p 19 [8] to [9]
9Ms Antonellos’ affidavit refers to having surgery to her lower back on 8 May 2015 and returning to employment in early December 2015. Her injury relevant to this application occurred on 22 June 2016 when she slipped on vegetable foliage on the floor of a Coles supermarket. She became aware of pain in her lower back and right hip and consulted her general practitioner and underwent physiotherapy. She underwent a right hip replacement in February 2017 and stated:
“The surgery was very successful and the only pain I get in my right hip now seems to be referred from my lower back.”[4]
[4]Exhibit A, p 21 [20]
10The first affidavit describes Ms Antonellos returning to work as a medical receptionist in March 2018. She was working approximately 20 hours per week at that time. She described occasionally helping out her daughter (who works as a cleaner) with some lighter jobs. She otherwise no longer does any cleaning work.
11The first affidavit makes reference to consequences following the 2016 fall. She describes her lower back pain as worsening considerably, describing it was a “dull but constant pain. It is always there.”[5] The affidavit concludes by describing her limitations in terms of walking, standing, driving and domestic activities.
[5]Exhibit A, p 22 [29]
12Ms Antonellos’ second affidavit described her low back pain as constant with regular flare-ups lasting between an hour and half a day. This was contrasted to the pre-injury period when she was only suffering from intermittent low back pain which was short lived and she would only experience symptoms about three times per week.
13In the second affidavit she again described difficulties with a number of activities and limitations with sitting, walking and heavier domestic activities. At the time of this recent affidavit she was working on occasions up to 38 hours per week, but stated:
“… I struggle to cope with this number of hours.”[6]
[6]Exhibit A, p 26 [12]
14When cross-examined I noted the following matters as relevant to the determination of this application:
· Ms Antonellos agreed to a lengthy history of back problems requiring medical consultations, including a low back x-ray on 5 September 2007.[7]
[7]Transcript (“T”) 8, Line (“L”) 13 to T 9, L 23
· She agreed with clinical notes from the Blackburn Medical Clinic that she was considering back surgery as early as January 2014.[8]
[8]T 9, L 27-30 & Exhibit A, p 84
· She agreed she attended a chiropractor on several occasions in 2014 before she was referred to a surgeon because of back problems in August 2014.[9]
[9]T 10, L 7-18
· She agreed with clinical notes at the Blackburn Medical Centre in December 2014 concerning a potential workplace claim against her own cleaning business. She did make such a claim in respect of her lower back, right hip and right knee.[10]
[10]T 11, L 4-18
· She agreed that she had undergone a decompression and fusion operation through the public health system in May 2015.[11]
[11]T 11, L 28 to T 12, L 2
· Ms Antonellos’ work with the employer, both before and after her back surgery, involved a series of short-term contracts.[12]
[12]T 12, L 27-29
· Ms Antonellos agreed that her right hip was part of the WorkCover claim brought in February 2015 and she was having considerable problems with it prior to resuming work in December 2015.[13]
[13]T 13, L 7-12
· She agreed that her right hip problems were longstanding, but worsened in 2014 and 2015.[14]
[14]T 13, L 18-20
· She agreed with medical notes on 29 November 2015 that she wished to see an orthopaedic surgeon in relation to her right hip.[15]
[15]T 13, L 26-31 & Exhibit A, p 81
· She agreed with a notation from the Blackburn Medical Centre on 14 February 2016 that she had severe right hip pain for over a year and was considering a total hip replacement.[16]
[16]T 14, L 19-25 & Exhibit A, pp 80-81
· She agreed she attended the Box Hill Hospital in April and May 2016 to be assessed for surgery. She also agreed with the notation of “right hip pain for the past two years which was severe.”[17]
[17]T 15, L 8 to T 16, L 4
· Ms Antonellos agreed that she had considerable pain and limitation of activities because of right hip pain approximately one month prior to the fall in June 2016.[18]
[18]T 16, L 5-9
· Ms Antonellos returned to work on the day of her fall in June 2016, and continued working for approximately a month and a half.[19]
[19]T 16, L 10-17
· After taking a month off work Ms Antonellos was told her contract would be terminated from 2 September 2016, and she challenged that termination through the industrial system.[20]
[20]T 16, L 13-21
· She agreed her right hip surgery was successful and was certified fit to return to normal duties by her general practitioner in March 2018. At that time she started her current job.[21]
[21]T 16, L 25-30
· At the time of her first affidavit in March 2020 she was still occasionally helping her daughter in her cleaning business, but no longer did so.[22]
[22]T 17, L 8-14
· She enjoyed her current job which involved her performing normal work as a receptionist, sitting, standing and moving about.[23]
· One of Ms Antonellos’ daughters, Eliesha, used to run the cleaning business. She ceased running the business either last year or the year before. It was at about that time Ms Antonellos ceased to help out in the business.[24]
· Following the fall in June 2016 Ms Antonellos changed general practitioners. She agreed also that she had only seen the surgeon who operated on her back in 2015 for a six month review after the surgery and the surgeon who operated on her hip in 2017 also for a six month review after surgery.[25]
· She has had no further specialist treatment or referral for low back pain and was taking no prescription medication for her back, nor receiving any treatment for her hip.[26]
· She agreed the relationship with her estranged husband was more practical than harmonious.[27]
· Ms Antonellos was doing yoga regularly, twice a week. She had ceased going to gym approximately two years ago.[28]
· Although she was not taking any prescription medication, she would occasionally take Panadol for pain.[29]
· Ms Antonellos agreed that between the time of her first affidavit and the second affidavit her walking, standing and sitting had improved. She agreed that when work was available as a receptionist she would work up to 38 hours in that job.[30]
· Ms Antonellos agreed that she was independent in her activities of daily living.[31]
· Finally, in cross-examination she agreed that the hip surgery resulted in an increased ability to walk and the back surgery was successful in treating the curvature in her spine.[32]
[23]T 18, L 3-7
[24]T 18, L 24 to T 19, L 3
[25]T 19, L 4 to T 20, L 4
[26]T 20, L 15-20
[27]T 21, L 2-7
[28]T 21, L 10-18
[29]T 21, L 21-26
[30]T 21, L 29 to T 22, L 19
[31]T 23, L 2-4
[32]T 23, L 12-29
15When re-examined Ms Antonellos agreed that she did minimal cleaning in her home and if she were to do activities such as vacuuming or cleaning bathrooms, her lower back pain would increase and she would need to lie down or rest.[33]
[33]T 24, L 3-13
16Additionally, activities such as getting in and out of a car or up and down from a seat would not cause her any back problems prior to the fall, nor would walking lengthy distances, nor sitting for long periods of time.[34]
[34]T 24, L 15-26
17In relation to her treatment Ms Antonellos described the yoga as involving a lot of stretching that she believed would be of benefit. She would take Panadol perhaps three times per week, a total of six tablets.[35]
[35]T 26, L 21 to T 27, L 4
18The only further lay evidence tendered on behalf of the plaintiff was an affidavit from her daughter, Eliesha Antonellos, sworn 23 February 2021.[36] This affidavit described observations of Ms Antonellos following the June 2016 incident and noting that:
“… my mother now avoids general household duties such as vacuuming, mopping and cleaning. The rest of the family have since needed to undertake these activities. My mother now rarely performs any of the cooking. The rest of the family also have been required to assist with the majority of the cooking.
My mother now also is no longer able to perform professional cleaning work.”[37]
[36]Exhibit A, pp 331-332
[37]Exhibit A, p 331 [3] – [4]
19This affidavit by Ms Antonellos’ daughter also describes witnessing an improvement in her mother following back surgery in 2015:
“… I witnessed my mother’s low back improve to the point she could undertake cleaning, cooking and other general household duties. She performed these tasks with caution; however up until her fall in June 2016, she was still able to perform these tasks on a consistent basis.”[38]
[38]Exhibit A, p 332 [6]
The medical evidence
20Mr Macnab on behalf of the plaintiff tendered into evidence four reports from the general practitioner, Dr Jaime Cayetano, from the Forest Hill Medical Centre.[39] Dr Cayetano had first seen Ms Antonellos on 30 June 2016 some eight days after the fall.
[39]Exhibit A, pp 30-54
21Dr Cayetano’s first report addressed to the Accident Compensation Conciliation Service was dated 27 April 2018. In that report he noted Ms Antonellos had a long history of low back pain since 2013 and had also suffered chronic right hip pain with radiological evidence of advanced osteoarthritis. He noted that she had undergone a total hip replacement in February 2017 recording:
“Since the surgery, her right hip has improved but she was still struggling with pain on her lower back. She also reported some tingling and numbness in her thigh and hip joint.”[40]
[40]Exhibit A, p 31
22He expressed a view at that time that the fall had greatly impacted and contributed to her current incapacity.
23Dr Cayetano wrote in similar terms to the plaintiff’s solicitors on 23 June 2018 stating:
“… patient had exacerbation of her lower back pain and right hip pain after said injury due to her accidental fall in 2016.
Patient’s fall has greatly impacted and exacerbated her low back pain and right hip pain due to her pre-existing surgery of her lower back and advanced osteo-arthritis of her right hip joint.
Since the said injury, patient has not been able to go back to her previous work doing administrative duties or do any of her part time duties as a cleaner due to ongoing pain of her back and right hip joint.
As stated, her fall has contributed significantly to her ongoing incapacity to go back to her usual occupation.”[41]
[41]Exhibit A, p 34
24Dr Cayetano wrote again to the plaintiff’s solicitors on 2 August 2016 confirming his diagnosis that the fall had aggravated the lower back and right hip. He regarded her prognosis as being “guarded due to the progressive nature of her medical conditions which is expected to deteriorate with time.”[42]
[42]Exhibit A, p 36
25Dr Cayetano did not see any likelihood that she would be physically able to go back to work as a cleaner, but believed her to be fit to do lighter duties which did not require heavy lifting, bending or long periods of sitting and standing.
26Dr Cayetano’s final report was dated 16 December 2020. He expressed a similar opinion as to her functional limitations by reason of her lower back and right hip conditions. His report concluded in the following terms:
“It is of my opinion that the accidental fall has contributed to her ongoing pain of her back/hip joint which exacerbated her distress and anxiety due to her inability to go back to her previous employment which also greatly impacted her social activities (going for walks, dancing and socialising).[43]
[43]Exhibit A, p 39
27Mr Macnab also tendered three reports from Mr Peter Moran, orthopaedic surgeon. He had first examined Ms Antonellos for medico legal purposes on 24 June 2019. His three reports were dated 26 June 2019, 18 October 2019 and 18 February 2021.[44]
[44]Exhibit A, pp 55-62
28In his first report Mr Moran noted that Ms Antonellos had a relevant past history of suffering from a longstanding scoliotic deformity of her spine:
“… which had deteriorated to the point where in May 2015, she underwent a corrective instrumented fusion of her mid lumbar region at the Austin Hospital.”[45]
[45]Exhibit A, p 55
29He also recorded at that time that she had symptoms of hip osteoarthritis but had not required any specific treatment and was still capable of walking without restrictions. Mr Moran expressed an opinion that the fall in 2016 had severely aggravated Ms Antonellos’ back pain. He also noted ongoing hip problems stating:
“Since the fall, there has been a marked deterioration in her level of back pain, and certainly, in her tolerance of standing and walking, in large part due to her back but also due to progressive deterioration in her right hip. This hip issue has resolved since she underwent a right hip joint replacement. It is relevant that prior the fall, right hip pain was trivial but since the fall, her symptoms had accelerated to the point where surgical intervention while she was still relatively young was necessary.
Her feeling is that, were it not for the fall, her hip would have been well tolerated for many years to come.”[46]
[46]Exhibit A, p 57
30Mr Moran regarded her capacity for employment as enabling her to work as a receptionist/secretary, but she was incapable of assisting the family business which involved cleaning and gardening activities run by her husband.
31On 18 October 2019 Mr Moran wrote a further short report clarifying his earlier opinion and the initial history relating to Ms Antonellos’ hip. In that report he stated:
“When I examined your client in June 2019, she stated that ‘I knew I had an arthritic hip’ but her pain was trivial.
This contrasts somewhat with your history that she had reported right hip pain to her GP on multiple occasions in 2015 and 2016, with x-rays taken in November 2015 indicating ‘significant OA right hip’, and at this point she was referred to an orthopaedic surgeon.
Mrs Antonellos’ pre injury hip pain appears to be the crucial element as to whether this fall has significantly accelerated the point which she was required to have a total hip joint replacement.”[47]
[47]Exhibit A, p 59
32Mr Moran went on to state:
“If Mrs Antonellos was placed on the waiting list for hip surgery after the fall then it must be concluded that the fall was a major factor in her seeking help in the form of total hip replacement, but if she was already on the waiting list at the time of the fall then I would suggest that she already had significant symptoms.”[48]
[48]Exhibit A, p 59
33Mr Moran reviewed Ms Antonellos on 8 February 2021 and provided a further report dated 18 February 2021. In that report Mr Moran noted the history of Ms Antonellos working as a medical receptionist:
“… for between 20 - 30 hours and sometimes more per week.
…
She said that her work kept her on her feet for most of the shift.
…
In addition to working as a medical receptionist, she also worked part-time in the family business, undertaking domestic cleaning, as well as running her own home.”[49]
[49]Exhibit A, p 60
34He also noted that she was on the waiting list for a total hip replacement prior to the fall in June 2016. Her role in the family business had changed from domestic cleaning to simply managing, invoicing and office work. Mr Moran expressed the opinion that there had been a clear deterioration in her spinal function as a consequence of the fall and he would expect accelerated degenerative change as a consequence:
“To fall heavily onto the buttocks is a significant issue with people of any age, but particularly someone in your client’s age with a pre-existing deformity and degenerative change which had, until this time, been well managed and well tolerated.”[50]
[50]Exhibit A, p 62
35Finally, Mr Macnab tendered clinical records from the Blackburn Medical Centre covering the period 20 March 2011 to 30 March 2017,[51] together with the later clinical records from the Forest Hill Medical Centre covering the period 30 June 2016 to 15 March 2018.[52] The medical records had been the subject of much of the cross-examination of Ms Antonellos.
[51]Exhibit A, pp 79-88
[52]Exhibit A, pp 146-152
36Mr Miles on behalf of the defendant tendered a referral letter from Mr David Williams, physiotherapist, to Mr David De la Harpe, orthopaedic surgeon, dated 8 August 2014.[53] This made reference to Ms Antonellos’ pre-existing spinal condition nothing at that time:
“Deformity is extremely obvious and causes her untold discomfort, more recently abdominally as the viscera twisted and distorted.”[54]
[53]Exhibit 1, p 2-2
[54]Exhibit 1, p 2
37Mr Miles also tendered an x-ray report of the lumbar spine which had been taken at the DaVinci Hospital in Malta on 7 November 2014.[55] This noted:
“Moderate thoraco-lumbar scoliosis with multilevel lumbar degenerative changes. Significant neural foraminal narrowing involving the L2 to L4 foramina. An MRI of the lumbar spine is recommended for further evaluation.”[56]
[55]Exhibit 1, p 3
[56]Exhibit 1, p 3
38Also tendered was a report from Mr Clive Jones, orthopaedic surgeon, dated 16 March 2015.[57] This report was addressed to a WorkCover insurer and related to Ms Antonellos’ earlier compensation claim relating to her cleaning activities.
[57]Exhibit 1, pp 4-8
39In that report Mr Jones provided the following diagnosis:
“The diagnosis as I would see it is a pre-existing and probably adolescent scoliosis complicated by severe degenerative change in the upper lumbar disc spaces.
…
I believe that her spinal problem is a longstanding injury and it is difficult to see any employment contribution by way of acceleration or exacerbation due to work.”[58]
[58]Exhibit 1, p 6
40The final report tendered into evidence on behalf of the defendant was from Dr Michael Lucas, occupational physician, dated 5 January 2018.[59] Dr Lucas had examined Ms Antonellos on 3 January 2018 and recorded a detailed and generally accurate history.
[59]Exhibit 1, pp 9-15
41He noted complaints of lower back pain and, at the time of his examination, some right hip discomfort. I note that Dr Lucas’ examination occurred a little over one year after the hip replacement surgery. Although Ms Antonellos was not working at the time she was examined by Dr Lucas, he noted her intention to return to an office-based role towards the end of 2018 or in early 2019.
42Dr Lucas regarded Ms Antonellos’ symptom concerns as an exacerbation of her pre-existing condition. As to the relationship of her then current condition he stated:
“Whilst an acute contributory component to Ms Antonellos’ experience associated with the events of 22.06.2016 has not been excluded, indications of significant acute injury findings appear limited. Confidently attributing fall incident significance to subsequent outcomes appears somewhat challenging.”[60]
[60]Exhibit 1, p 14
43Finally, Dr Lucas believed Ms Antonellos may have limitations in performing aspects of her previous cleaning work, but would not restrict her from returning to her previous contact employment on an unrestricted basis.[61]
[61]Exhibit 1, p 14
44Mr Miles also tendered into evidence various medical records to which reference had been made during Ms Antonellos’ cross-examination.[62]
[62]Exhibit 1, pp 16-26; Exhibit A, pp 61; 80-87; 92; 114-116; 295 & 316-17
Analysis
45Both counsel agreed in final address that the plaintiff’s entitlement to leave fell to be determined as an aggravation injury in accordance with the longstanding authority set out in Petkovski v Galletti.[63] In order for leave to be granted, the plaintiff must satisfy the court that the consequences of the aggravation injury to her lower back sustained on 22 June 2016 are sufficient to satisfy the statutory test.
[63][1994] 1 VR 436
46A court must not consider the totality of the low back injury as aggravated, but must in essence identify the state of the lower back as it was prior to the incident and make an assessment of the extent to which the aggravation caused by the incident has produced consequences which are then assessed as serious.
47The Court of Appeal stated in Petkovski v Galletti:
“The accident did not cause the pre existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of the body function before and after the relevant injury.”[64]
[64]Ibid at [444]
48Ms Antonellos had undergone corrective spinal fusion surgery to stabilise a developmental scoliosis of her spine in May 2015. There was no report tendered in evidence from the treating surgeon who had performed that procedure on her, nor was there any report from any general practitioner who had provided treatment to her prior to the fall on 22 June 2016. Ms Antonellos did not initially attend her present general practitioner, Dr Cayetano, until just over a week later on 30 June 2016.
49The earlier medical records put to Ms Antonellos during cross-examination demonstrated, as a matter of probability, that she had experienced ongoing low back problems on a regular basis since 2007. Indeed, it would be fanciful to suggest that she would have undergone surgery in May 2015 unless her lower back symptomatology was a serious concern for her.
50Additionally, Ms Antonellos has now undergone a right total hip replacement operation in February 2017. Once again there was no evidence provided to the court from the treating surgeon.
51At the time of his first examination Dr Cayetano recorded as follows:
“… she was complaining of intractable pain of her lower back and right side of her hip and buttocks which she said was radiating to her right foot.
…
She tried to manage her right hip and low back pain conservatively with physiotherapy and pain medication for several months without much relief.
In February 2017, she underwent total hip replacement of her right hip in Box Hill Hospital. Since the surgery, her right hip has improved but she was still struggling with pain on her lower back. She also reported some tingling and numbness in her thigh and hip joint.”[65]
[65]Exhibit A, p 31
52The absence of any medical reports from Ms Antonellos’ earlier general practitioners, or her spinal surgeon who treated her prior to the incident makes an assessment of her pre-injury back condition largely dependent on an acceptance of her own evidence.
53Whilst I do not suggest that Ms Antonellos has attempted to mislead the court, there were numerous entries in clinical records pre-dating the June 2016 incident which supported the proposition that the state of her lower back prior to the fall was such that she was significantly limited in a range of day-to-day activities.
54In final address Mr Miles on behalf of the defendant noted that Ms Antonellos was unable to return to work following her spinal surgery until December 2015. Mr Miles submitted that whilst the plaintiff maintained that the success of her spinal surgery introduced her to what Mr Miles described as a “golden era”, the court would need to be concerned with the history recorded by her earlier general practitioner on 20 November 2015 as follows:
“multiple problems.
c/o pain right hip and knee.
had back surgery in the past.
getting worse.”[66]
[66]Exhibit A, p 81
55It is clear that by that time, when Ms Antonellos was shortly to return to work, that she was being referred to an orthopaedic surgeon initially at the Austin Hospital and was considering a total hip replacement. She was then subsequently referred to the Box Hill Hospital where that surgery was performed in February 2017.[67]
[67]Exhibit A, pp 80-81
56Given the absence of relevant before and after medical opinion to assess the extent of the injury sustained in the fall, the court is left with some factual evidence from which the seriousness or otherwise of consequences in that fall can be inferred.
· First, she did not require referral to any specialist medical practitioner at or about the time of the fall.
· Secondly, she continued in her employment with the employer for a period of at least one month after the fall before taking any time off work.
· Thirdly, CT scans performed on her lumbar spine and right hip in July 2016 did not disclose any conclusion suggestive of a frank injury occurring.[68]
· Fourthly, the report from Dr Cayetano dated 27 April 2018 records the prescription of pain medications and a referral for physiotherapy treatment following the fall, but does not disclose any further referral until she was sent to the pain clinic at the Austin Hospital for a multi-disciplinary assessment in February 2018.
[68]Exhibit A, pp 28-29
57The opinion of Mr Moran in his most recent report is supportive of Ms Antonellos’ claim:
“There has been a clear deterioration in her spinal function as a consequence of this fall, and I would expect that there will be issues with accelerated degenerative change in the lower segments and also in the thoracic spine as a consequence of this injury. To fall heavily onto the buttocks is a significant issue with people of any age, but particularly someone of your client’s age with a pre-existing deformity and degenerative change which had, until this time, been well managed and well tolerated.”[69]
[69]Exhibit A, p 62
58Notwithstanding the support provided by Mr Moran, there is, in my assessment, a paucity of evidence tending to a conclusion that the consequences in terms of pain and suffering satisfy the relevant statutory threshold.
59Additionally, the affidavit provided by Ms Antonellos’ daughter, Eliesha, provides general support for the plaintiff’s application, but also lacks detail which would assist the court in making a qualitative assessment of the pain and suffering consequences flowing from the fall.
60I do accept as a matter of probability that Ms Antonellos is less able to perform her general household duties than she was before the fall. I accept that she no longer works in her daughter’s cleaning business. Regrettably, in terms of the present application the evidence as to when the cleaning business ceased, or the extent to which Ms Antonellos had worked in that business prior to the fall, is quite unclear.
61I accept that the fall would have produced an acute aggravation of Ms Antonellos’ lower back, but I am unable to be persuaded that any such aggravation has of itself produced consequences that could fairly be described as “more than significant or marked at least to the extent of being very considerable and certainly more than significant or marked.”
62The aggravation test which has been long established following the decision in Petkovski requires a court to compare the before and after condition of an applicant and to assess whether the aggravation has relevantly produced serious injury consequences. For the reasons I have stated, largely concerning the absence of medical material pre-dating the fall, I am simply unable to be persuaded as to the extent of consequences relevantly caused by that incident.
63Even if I were to accept the totality of the consequences now flowing from the plaintiff’s lower back condition as being attributable to the fall, they would in my view still not satisfy the statutory test.
64The Court of Appeal considered the qualitative assessment required by the serious injury test recently in a WorkCover case of TTB SMS Pty Ltd v Reading.[70] That case considered the consequences suffered by a worker who had sustained a hand injury. An analysis by the court in that case led to a conclusion that the impairments were certainly not trivial, but could not be fairly described as “at least very considerable”:
“The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”[71]
[70][2020] VSCA 203
[71]Ibid at [31]
65In Ms Antonellos’ case she has managed to return to work of a similar nature for at least the same number of hours, and probably greater hours, than prior to the fall. She requires no prescription medication and little by way of medical treatment for her back injury. She retains the ability to care for herself and live independently, and there is no evidence of any cognitive defect. Her mood and ability to sleep are unaffected. Her recreational and domestic activities have been impacted to some extent, but could not in my view be described as any more than a mild to moderate degree.
66In the present case I am simply unable to be satisfied that Ms Antonellos has satisfied me either as to the nature and extent of her injury resulting from the fall, other than reaching a conclusion as a matter of probability that there was some aggravation to an underlying degenerative and previously operated lower back.
67Additionally the lack of any before and after medical opinion, the absence of any significant change in the nature of Ms Antonellos’ work activities and particularly her working hours prior to and subsequent to the fall, together with the lack of any specialist treatment, militate strongly against a conclusion that the aggravation to her lower back has produced consequences in terms of pain and suffering which can fairly be described as at least very considerable and more than significant or marked.
Conclusion
68In view of the findings I have made the application for leave must be dismissed.
69I will hear the parties in relation to the formal orders sought and on the question of costs.
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