Batstra v Healthscope Ltd
[2013] VCC 1405
•12 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-10-03716
| JOY BATSTRA | Plaintiff |
| v | |
| HEALTHSCOPE LIMITED AND ANOTHER | Defendants |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 30 August and 2 September 2013 | |
DATE OF JUDGMENT: | 12 November 2013 | |
CASE MAY BE CITED AS: | Batstra v Healthscope Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1405 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Injury to lumbar spine – pre-existing injuries – whether plaintiff required to disentangle physical from psychological – whether serious permanent impairment or loss of function of lumbar spine – whether the plaintiff met the test in respect of loss of earning capacity.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:PetkovskivGalletti [1994] 1 VR 436, AG Staff Pty Limited v Filipowicz & Ors [2012] VSCA 60, Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622, MeadowsvLichmore Pty Ltd [2013] VSCA 201, JayatilakevToyota Motor Corporation Australia Ltd [2008] VSCA 167
Judgment: Leave granted to the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Walsh with Ms J. Lontos | Barbante & Associates Pty |
| For the Defendants | Mr N. Dunstan | Thomsons Lawyers |
HER HONOUR:
Introduction
1 By originating motion filed on 24 August 2010, the plaintiff sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to institute common law proceedings to recover pain and suffering and pecuniary loss damages for an aggravation injury to her lumbar spine (L3 to L5/S1 with referred pain)[1] in the course of her employment with the first defendant on 21 May 2007. Her application was brought under paragraph (a) of the definition of serious injury, namely, serious permanent impairment or loss of function of the plaintiff's lumbar spine.
[1] Opening, Transcript (TN) 6
2 The various background matters to which the plaintiff deposed in her three affidavits sworn on 19 April 2010, 9 March 2012 and 28 August 2013 and to which her husband deposed in an affidavit sworn on 7 March 2012, are summarised in the paragraphs that follow.[2]
[2] Exhibit P1, Plaintiff's Court Book (PCB) 37-45, 9-15 and 18.1-18.5 and 16-18 respectively
3 The plaintiff was born and raised in country Victoria. She is 61 years of age and married with two adult sons.
4 The plaintiff completed her schooling to Year 9 level. It appears that, save for periods of further study or injury, the plaintiff was employed for much of her adult life until she ceased employment with the first defendant in November 2009.
5 The plaintiff deposed that between 1967 and about 1971/1972 she worked as a pathology assistant at a hospital.
6 After marrying in 1972, and during the period her two sons were youngsters, the plaintiff worked part-time in a boys’ home.
7 In 1982, the plaintiff commenced full-time study. During the 1980s, the plaintiff qualified to work as a residential care and intellectual disability worker and she completed several courses, including a course in welfare studies and a certificate in business studies.
8 In 1986, the plaintiff commenced work as a machinist. She deposed that she suffered bilateral carpal tunnel syndrome affecting both hands. As a result, the plaintiff was unable to work for about two years. She was paid compensation.
9 Between 1988 and 1992, the plaintiff worked as a residential care and intellectual disability worker.
10 In about 1989, the plaintiff suffered injury to her neck, shoulder and spine during a work placement for which she also submitted a claim for compensation (the first back injury).
11 In 1992 the plaintiff commenced employment as a teachers’ assistant in a special development school. The plaintiff deposed that, in about December 1996, she suffered further injury. This also involved back injury (the second back injury). She received payments of compensation and did not return to work until 2003.
12 On 5 May 2000, the plaintiff submitted a claim for serious long-term impairment under subsection 135A(19) of the Act. This claim included the second back injury and was settled at common law in mid-2002. As mentioned, in 2003, the plaintiff returned to employment. She was employed by the Mental Illness Fellowship of Victoria, based in Shepparton. This work involved supporting the rehabilitation of mentally ill patients.
13 The first defendant operated a residential facility for disabled residents in Shepparton. The plaintiff deposed that, from June 2005, she was employed by the first defendant at this facility as an attendant care and residential worker, assisting residents with significant disabilities. These residents included persons with acquired brain injuries, amputees and paraplegics. The plaintiff described her work duties (moving patients and assisting them with their everyday living skills, including dressing, showering, using the toilet, bathing and personal hygiene) as "hands-on" and physically demanding.
14 On 1 October 2005 the plaintiff suffered a left shoulder and further back injury after an office chair, on which she had been seated, rolled back and broke causing the plaintiff to fall to the floor (the third back injury).[3] A claim for compensation was submitted. The plaintiff eventually returned to normal duties.
[3] Exhibit D1, Defendant's Court Book (DCB) 6
15 On 21 May 2007, in the course of her employment with the first defendant, the plaintiff further injured her lower back whilst pushing a wheelchair carrying a paraplegic patient, whom the plaintiff deposed weighed approximately 110 kg. According to the plaintiff, as she pushed the wheelchair down a rough path it struck a pothole and jarred her back (the fourth back injury). Her claim for compensation was submitted in or about June 2007. Among other things, the claim form indicated that, when injured, the plaintiff was working as a care attendant part-time for some 68 hours per fortnight.[4]
[4] PCB 125-129
16 Following investigation and treatment, from approximately August 2007, the plaintiff returned to work, performing alternative light duties (two hours per day).[5] However, until she ceased employment in November 2009, ostensibly because back pain prevented her from performing her work duties, the hours worked by the plaintiff varied up to 15 hours per week (when the plaintiff underwent the 130 Week Vocational Assessment on 16 June 2009 she was working modified duties for 21 hours per fortnight[6]) and her attendances were punctuated by periods during which the plaintiff was certified as unfit for work due to her back condition.
[5] PCB 44
[6] DCB 103
17 During re-examination, the plaintiff told the Court that her WorkCover claim had been accepted and she had been paid compensation for about 130 weeks, with top-up payments from May 2007 until about the end of 2009.[7]
[7] TN 109-110
18 The plaintiff alleged that, as a consequence of the fourth back injury she suffers significant pain on a daily basis for which she is prescribed medications (currently involving daily use of a duragesic patch and doses of Valium and, for sleep, Temazepam) and ongoing disability which impacts on her domestic and recreational activities.[8]
[8] See PCB 13-14, 43-44 and 18.2-18.3
19 The plaintiff, who has received a disability pension since 2010, further alleged totally incapacity for work by reason of additional impairment of her lumbar spine due to the fourth back injury. When asked in re-examination why she could not return to work, the plaintiff repeated (in substance) the explanation given to a number of the doctors, when she said:[9]
“The reason why I can’t go back to work, I believe, is because I have continual leg pain, ankle pain, lower back pain, sometimes I can't get out of bed, sometimes I can't drive the car, sometimes my husband has to take me to appointments because I can't drive, and I just find that I would be an unreliable staff member."
[9] TN 110
The Statutory Requirements
20 The plaintiff must prove that she has suffered compensable injury arising out of or in the course of her employment with the defendant on or after 20 October 1999. This was not an issue in this application.
21 In accordance with subsection 134AB (37)(a) of the Act, to establish "serious injury", the plaintiff is required to prove that she has suffered a "permanent serious impairment or loss of a body function", which is to be determined on the balance of probabilities.
22 It was common ground that where, as in this case, the injury involved an alleged aggravation of a pre-existing condition:
Ø the plaintiff was required to establish what injury was caused by the fourth back injury;
Ø the Court was required to analyse the extent of impairment of the function of the plaintiff's lumbar spine before and after this injury; and
Ø the plaintiff was required to satisfy the Court that any additional impairment involved a permanent serious impairment or loss of function of her lumbar spine.[10]
[10] See PetkovskivGalletti [1994] 1 VR 436 and AG Staff Pty Limited v Filipowicz & Ors [2012] VSCA 60 [27]and [29]
23 "Permanent" refers to impairment that is "likely to last for the foreseeable future".[11]
[11]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 [33]
24 Subsection 38(c) provides that pain and suffering and loss of earning capacity consequences of the injury must, when judged by comparison with other cases in the range of possible impairments or loss of a body function, be fairly described as being more than "significant" or "marked", and as being at least "very considerable".
25 The plaintiff was also required to discharge the burden imposed by section 134AB(e) which arises pursuant to (e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
26 It was common ground that, for the purpose of this provision, the plaintiff's without injuries earnings figure (as determined in accordance with section 134AB(38)(f)), namely the sum that most fairly reflected her earning capacity had injury not occurred, was $49,731 gross per annum or approximately $956 gross per week (if based on her gross income for the year ending 30 June 2006).[12] Using this sum, the plaintiff was required to establish that, at the date of hearing, she had a permanent loss of earning capacity productive of a financial loss of $573 gross per week or $29,838.60 gross per annum or more.[13]
[12] Section 134AB(38)(f) and Transcript (TN) 5
[13] Opening, TN5
27 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, she has a capacity for any employment which, if exercised, would result in her earning more than 60% of the pre-injury earnings as determined in accordance with section 134AB(38)(f).
28 The plaintiff must also prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[14]
[14] Sections 134AB(19)(b) and (38)(g)
29 Section 5(1) of the Act defines "suitable employment" such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
30 If the plaintiff satisfies the loss of earning capacity requirements under section 134AB of the Act, she is entitled to leave to institute proceedings for both her pecuniary loss damages and her pain and suffering damages, without further determination of the pain and suffering aspect of the application.
31 Section 134AB(38)(h) provides that any psychological or psychiatric consequences of the injury are to be taken into account only for the purpose of paragraph (c) of the definition of "serious injury" and not otherwise. This means that, any psychological or psychiatric consequences of the fourth back injury must be disregarded when assessing any consequences of the impairment or loss of function of the plaintiff's lumbar spine as a result of the fourth back injury.
The Areas of Dispute
32 The plaintiff placed particular reliance on the following medical opinions which it was submitted indicated a likely unresolved aggravation injury:
Ø the defendant's medico-legal specialist, orthopaedic surgeon, Mr Polke, who on 22 April 2008 informed the insurer that the plaintiff had sustained a lower back injury with some damage to her lower lumbar spine over the background of pre-existing degenerative changes;[15]
[15] DCB 21
Ø treating orthopaedic surgeon, Mr Critchley, who on 2 March 2009 informed the plaintiff's general practitioner that "certainly her symptoms sound like nerve root irritation or compression and probably the L4 nerve root is involved from her history";[16]
[16] DCB 271
Ø her medico-legal specialist, orthopaedic surgeon, Mr Miller, who on 24 February 2012 informed her solicitors that pre-existing asymptomatic disease of the plaintiff's lumbar spine had been aggravated with probable further superimposed injury, the effects of which persisted;[17]
[17] PCB 102
Ø the defendant's medico-legal specialist, orthopaedic surgeon, Professor Marshall who, on 18 May 2012, informed the defendant's solicitors that based on the "history and changes in imaging with an increase in protrusion of L4-L5 disc injury and continuing complaints of back pain it is likely that there has been incremental aggravation of her symptoms with aggravation as described on 21.05.(2007)" and that, whilst this was speculative, on the balance of probabilities the plaintiff's back may not have been in a similar or same condition had the aggravation injury, that is the fourth back injury, not occurred;[18]
[18] DCB 48-49
Ø her medico-legal specialist, orthopaedic surgeon, Mr Grossbard who, on 31 July 2012 informed her solicitors that, as a result of a long series of injuries and particularly the aggravation incident on 21 May 2007 and another incident on 8 October 2009 (the latter appears to be a reference a the flare-up which occurred shortly before the plaintiff ceased work for the last time in November 2009) the plaintiff had a degenerate disc bulge at the L4-5 level with associated right-sided sciatic symptoms;[19]
Ø treating orthopaedic surgeon, Mr Carey who on 2 August 2012 reported that the plaintiff's employment with the first defendant had "been a significant contributing factor with respect to any "injury" including aggravation of lumbar spondylosis" and her employment with the first defendant had "resulted in a significant aggravation of symptomatology as compared to symptomatology following… " the second and third back injuries; [20]
Ø treating pain management specialist, Dr Todhunter, who on 8 August 2012 informed the plaintiff's solicitors that the fourth back injury had aggravated and rendered symptomatic degenerative lumbar spine disease and was a significant contributing factor to the plaintiff's ongoing pain.[21]
[19] PCB 106
[20] PCB 57
[21] PCB 76
33 The defendant, however, relied on other treating and medico-legal opinion indicating the presence of a chronic pain syndrome, in particular:
Ø the report of treating orthopaedic surgeon, Dr Brighton-Knight who on 28 September 2007 informed the plaintiff's general practitioner that the plaintiff had developed a chronic pain syndrome over the previous decade;[22]
Ø the reports of treating orthopaedic surgeon, Mr Carey submitted on various dates between 1998 and 2012. In his earliest reports, directed to the second back injury in 1996, the surgeon diagnosed a diffuse pain syndrome, [23] a diagnosis repeated in his later reports (a diffuse spinal pain syndrome for which he could not find a particular cause, namely specific pathology associated with a defined set of symptoms and clinical signs) in respect to the fourth back injury;[24]
Ø the reports of the defendant's medico-legal specialist, orthopaedic surgeon, Mr Simm who, in a series of detailed reports submitted to the defendant's solicitors between 2010 and 2013,[25] diagnosed (in 2010) non-specific mechanical low back pain and referred pain into the plaintiff's right lower limb without clinical signs of radiculopathy ("No definite organic cause for the pain was established. The diagnosis remains consistent with a long-standing diagnosis of a chronic spinal pain syndrome…"[26]) and, in 2012, an exacerbation of long-standing chronic spinal pain syndrome, namely a functional diffuse pain syndrome ("I am not able to explain her clinical course on the basis of any identifiable organic pathology or physical injury. The clinical signs presented were non-organic…"[27]).
[22] DCB 268
[23] PCB 47-51
[24] PCB 52-58
[25] DCB 50-67c-g
[26] PCB 54
[27] DCB 64
34 The defendants submitted that this was a ‘disentanglement case’. [28]
[28] See MeadowsvLichmore Pty Ltd [2013] VSCA 201 [21]-[22], [24] and [29] and JayatilakevToyota MotorCorporation Australia Ltd [2008] VSCA 167
35 Generally speaking, the Court applies a two step approach where this issue is raised. The first step involves a determination of whether there is a substantial organic basis for the pain and suffering and loss of earning capacity consequences on which a plaintiff relies. In this case, the defendants submitted that this question could not be answered in the affirmative and, as a result, the plaintiff was required to ‘disentangle’ the various contributors to her pain and disability,[29] in order to:
[29] See Jatayilakev Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201, [19].
(a) identify the physical injuries sustained in the fourth back injury and the impairment of spinal function attributable to those injuries;
(b) identify the pain and suffering and economic loss consequences attributable to that impairment; and
(c) establish that those consequences were at least very considerable and certainly more than significant or marked.
36 If satisfied of the organic basis for the consequences alleged, the defendants nonetheless put the plaintiff to her proof by requiring that she show whether any additional organic impairment due to the fourth back injury:
a) involved serious permanent impairment or loss of function of the lumbar spine;
b) met the additional tests in respect to establishing a permanent loss of earning capacity, firstly, by proving a loss of earning capacity productive of a financial loss of 40% or more and, secondly, by proving any, and the extent of any, inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.
37 As my discussion of the multiple medical reports below shows, I was satisfied on the balance of probabilities that there was a strong body of medical opinion indicative of a substantial organic basis for the disability and consequences of which the plaintiff continued to complain. This was because the medical evidence largely indicated the presence of an aggravation/exacerbation of pre-existing degenerative disease in the plaintiff's lumbar spine and/or complicated by a chronic pain disorder, the latter involving a probable neurophysiological condition, central sensitisation of the nerve pathways.
38 In this case, none of the doctors have questioned the plaintiff's genuineness. However, while not asserting that the plaintiff had been dishonest, the defendants sought to place particular emphasis on Mr Simm's opinion that the plaintiff's symptoms were due to functional overlay.[30] The defendants did, nonetheless, challenge (from my analysis of the evidence, with good reason) the reliability of the plaintiff’s accounts where she appeared to minimise any ongoing back problems, particularly in the period between 2001 and the occurrence of the fourth back injury.
[30] TN 156
39 For instance, as to the third back injury (in 2005), in February 2012 Mr Miller recorded: “he stated she fell off an office chair which she believed was broken and had recurrence of her back pain. This persisted for a period of time, but she stated again it essentially fully settled down…”[31] and further recorded: “She stated she did have some back pain, some neck pain and shoulder pain again in approximately the 1980s, but these symptoms settled and there were previous problems with back pain as outlined above although she stated she did not have problems with back pain to the period leading up to the work event in May 2007”.[32]
[31] PCB 95
[32] PCB 96
40 Under cross-examination the plaintiff, who did not recall telling the surgeon that her back pain had “essentially fully settled down”, appeared to accept the accuracy of the record made, save for the use of the word “fully”. The plaintiff's response in this regard appeared to be based on her belief (arguably a reasonable belief in all the circumstances) that had she suffered “really acute back pain”, she would not have danced rock ‘n roll with her husband or attended dance meets all over Victoria.[33]
[33] TN 75-77
41 In July 2012, Mr Grossbard recorded that: "Prior to this incident, [the plaintiff] has had previous back problems. She had a back injury in 1996 after slipping on a floor whilst working for the Education Department. She was off work until 2002 because of her back injury but said she made a full recovery and was not on medication. In 2003 [the plaintiff] fell off an office chair but kept working following this incident, with no ongoing problem."[34] Under cross-examination, the plaintiff agreed that this was not an accurate history because she had ongoing problems in 2000, 2005 and 2006 and because she had been on medication.[35]
[34] PCB 104-105
[35] TN 83
42 Mr Simm, who first reported to the defendants’ solicitors in June 2010, was initially told that the plaintiff “had essentially recovered” from the injury sustained in 1996.[36] This specialist, however, had the benefit of extensive historical materials, as a result of which Mr Simm was able to prompt the plaintiff, who then recalled the circumstances of the fall in October 2005 and injury to her left shoulder, but (perhaps surprisingly) not the injury to her back.
[36] DCB 51
43 If the history received by any doctor was inaccurate or deficient to any material degree, the opinions formed may be less helpful than might otherwise have been the case, especially where, as in this case, the history obtained by some specialists gave the impression that the plaintiff’s lumbar spine before the fourth back injury was asymptomatic.
44 I will elaborate on these matters shortly.
The evidence called and tendered
45 The plaintiff deposed to the accuracy of her three affidavits. She was subjected to lengthy cross examination. The affidavit of her husband was sworn on 7 March 2012. His evidence, focused, as it was, solely on his wife's condition and the observation made about her pain and disability since the fourth back injury, was not challenged.
46 The plaintiff and the defendants tendered extracts from their respective Court Books and from the Defendants’ Supplementary Court Book.
47 The material tendered by the plaintiff comprised multiple reports from treating doctors and medico-legal specialists, reports relating to radiological investigations of the plaintiff's lumbar and/or cervical spine obtained between 6 December 1996 and 7 May 2012, a summary of her tax returns, dated 17 August 2012, the WorkCover workers claim form, dated 7 June 2007 and the Employer claim report, dated 17 July 2007.[37]
[37] Exhibit P1
48 The plaintiff tendered documents from the Defendants' Court Book including medical reports obtained from Mr Polke, psychiatrist, Dr Swift, Professor Marshall, Mr Simm, Dr Brighton-Knight, pain management specialist, Dr Lim and Mr Critchley.[38]
[38] Exhibit P2
49 The material tendered by the defendants comprised the WorkCover's Worker's Claim Form for the third back injury, five reports submitted by Mr Simm, a letter, dated 4 May 2010, with numerous attachments addressed to Mr Simm, a Work Streams 130 Weeks Vocational Assessment Report, dated 18 June 2009, a CoWork Occupational Capacity Analysis Report, dated 22 March 2011 and, from supplementary materials to the Defendants’ Court Book, a Prescribed Section 134A Form of Application, dated 5 May 2000 and an affidavit, sworn on 17 April 2000, made by the plaintiff in respect to injury suffered in 1996, which included the second back injury.[39]
[39] Exhibit D1
50 Neither side sought to cross-examine the doctors.
Pre-existing back condition
51 It is convenient to start by summarising the past history relating to any pre-existing condition with a view to understanding the extent of any physical impairment of the function of the plaintiff’s back prior to the fourth back injury.
52 Apart from a brief description of each of the earlier back injuries in the plaintiff’s first affidavit, the evidence of each earlier back injury is mostly found in clinical notes and the reported results of radiological investigations, in histories recorded by various doctors from time to time (before and since the fourth back injury) and in the plaintiff’s responses given under cross-examination.
The first back injury
53 As mentioned, the plaintiff deposed that in 1989, while studying for an advanced certificate in residential and community care and undertaking a placement, she suffered neck, shoulder and spinal injury for which she submitted a claim for compensation.
54 The precise nature of any injury suffered to the plaintiff’s spine on this occasion and the extent to which she had been disabled by this injury was not evident from the plaintiff’s affidavits or oral evidence. However, histories obtained by various doctors were of assistance in gaining some understanding of this injury. The very detailed history obtained by psychiatrist, Dr Epstein, who examined the plaintiff at the request of her solicitors on 2 March 2011 was particularly helpful in this regard.[40]
[40] PCB 92.1-92.11
55 According to Dr Epstein’s report, he received numerous earlier medical reports, a number of which concerned a work-related injury to the plaintiff's left shoulder and back on 4 September 1989, as she pushed a patient in a wheelchair up a steep concrete ramp.
56 Relying on Dr Epstein's summary of the information he received, the plaintiff had been prescribed analgesics and Valium, she had undergone physiotherapy and x-rays taken of her lumbar spine were reported as "normal". Dr Epstein also recorded that, at the time, in addition to her left shoulder symptoms, the plaintiff had reported lower back symptoms associated with occasional numbness and left sciatica down to her foot. Nevertheless, by February 1990, a specialist reported that the plaintiff had recovered from her injury, although she had been advised to avoid repetitive bending, heavy pushing or pulling and lifting weights exceeding 10 kg.[41]
[41] PCB 92.3
57 The plaintiff deposed that between 1992 and suffering further injury on 3 December 1996, she was employed as a teacher's assistant at a special development school in Ballarat.[42]
The second back injury
[42] PCB 40
58 As mentioned, the plaintiff suffered further injury on 3 December 1996 in the course of her employment. The Prescribed Section 135A Form of Application dated 5 May 2000 described a fall while supervising students at a swimming pool, causing injury to the plaintiff's neck, left shoulder, low back, left hip and legs.[43]
[43] DCB 296-297
59 Some, or a combination of these injuries (possibly affecting different body functions), appear to have contributed to disability and incapacity for work until about 2003. Under cross-examination, the plaintiff agreed that she had been paid weekly compensation from approximately 4 December 1996 to 17 June 2002 in respect to injuries which also involved injury to her back.[44]
[44] TN 31
60 The radiological evidence obtained after 3 December 1996 and before the plaintiff claimed to have returned to work in or about 2003 comprised the following:
Ø x-ray of the lumbar spine and pelvis on 6 September 1996 ("Early degenerative changes in the lumbar spine. No evidence of fracture"); [45]
[45] PCB 79
Ø x-ray of the cervical spine on 22 January 1997 including functional views ("There is no evidence of degenerative disease and intervertebral disc bases are of normal height. The intervertebral foramina are well seen bilaterally and are of good calibre and no bony canal stenosis is present. No bony destructive lesion is noted. The vertebral body alignment is normal in flexion and extension");[46]
[46] PCB 79
Ø CT scan of the cervical spine throughout the cervical region from C2 to T2 with the plaintiff lying supine on 7 May 1997 ("No bony injury is noted. The cervical cord appear normal throughout its length with no evidence of localised atrophy or expansion. There is very minor degenerative change with slight narrowing of most of the intervertebral foramina bilaterally. However there was no evidence of nerve root entrapment and no disc herniation is shown");[47]
[47] PCB 80
Ø MRI scan of the lumbar spine (series 2) obtained on 15 June 1998 at the request of treating surgeon, Mr Carey ("CONCLUSION Three levelled (L3/4 to L5/S1) disc degeneration, no focal disc protrusion is seen");[48]
[48] PCB 81
Ø MRI scan of the cervical spine obtained on 15 June 1998, also requested by Mr Carey ("CONCLUSION Minimal loss of signal intensity within the disc consistent with age related change. No focal disc protrusion is seen");[49]
[49] PCB 82
Ø CT scan of the lumbar spine obtained on 22 July 1999 at the request of general practitioner, Dr Jim Thomson. The results of this scan evidently revealed mild central dorsal disc protrusions at the L5-S1 level without evidence of deformity or displacement of either the S1 nerve root or the thecal sac and at the L4-5 level with no apparent compromise to L5 nerve roots within lateral recesses;[50]
[50] PCB 83
Ø MRI scan of the cervical spine ("Chronic neck and left arm pain") obtained on 18 April 2000 at the request of neurosurgeon, Mr Dohrmann ("CONCLUSION Small anterior disc disruptions at C5-6 and C6-7 which may be of no clinical significance. Otherwise, normal examination");[51]
Ø CT scan of the lumbar spine obtained on 22 September 2001 at the request of orthopaedic surgeon, Mr Mitchell disclosed broad-based postero-lateral disc protrusion at the L4-5 level, slightly to the left of midline with a moderate degree of subarticular lateral recess stenosis on the left, compressing the L5 nerve root and a small central disc protrusion at the L5-S1 level with no significant nerve root displacement. Relevantly, having compared the results of this scan with the earlier scan obtained on 22 July 1999 radiologist, Dr Buirski, also concluded that the degree of protrusion at the L4-5 had “certainly” progressed since the last study;[52]
Ø MRI scan of the lumbar spine (series 4) obtained on 17 December 2001 at the request of orthopaedic surgeon, Mr Mitchell ("CONCLUSION Three level (L3/4 to L5-S1) disc degeneration. No focal disc protrusion is seen").[53]
[51] DCB 194
[52] DCB 209-210
[53] PCB 56
61 The correspondence exchanged and reports from doctors during this period comprise two short medical reports dated 20 April 1998 and 15 November 1998, addressed by treating orthopaedic surgeon, Mr Carey to solicitors acting on behalf of the plaintiff and to the insurer respectively.[54]
[54] PCB 47-51
62 These reports (and a later report submitted by Mr Carey to the Accident Compensation and Conciliation Service, dated 15 June 2012[55]), among other things, relevantly indicated the following;
[55] PCB 52-55
Ø the plaintiff was first seen by Mr Carey on 25 November 1997, nearly a year after the second back injury. She was re-examined in 1998 (and possibly in 1999) and, nearly 12 years later, in January 2010;
Ø in November 1997, the plaintiff reported injury to her right ankle, discomfort in her hip on the right, some pain in her neck and shoulders and stiffness, soreness and tightness in her back and, "perhaps" three months after the fall, she noted the development of some numbness in her left leg and some discomfort in the region of her left sacro-iliac joint;[56]
[56] PCB 47
Ø based on Mr Carey’s findings on examination and the plaintiff's account of this, pain was focussed in the region of the left sacro-iliac joint. The plaintiff reported that pain varied in intensity, it prevented her from undertaking her normal home duties and she required analgesics and Valium to aid sleep.[57] Under cross-examination, the plaintiff agreed that, since the second back injury, she had experienced problems sleeping due to back pain and had used Valium to aid sleep;[58]
[57] PCB 47
[58] TN 34
Ø as to her past medical history, the plaintiff had reported that: "she ‘always’ had some discomfort in the back, neck and shoulders as a result of her normal work." While the plaintiff did not challenge the accuracy of the record made, during cross-examination, she was unable to recall telling Mr Carey that as at 1996 she had always had some discomfort in her back as a result of her normal work;[59]
[59] TN 31-33
Ø having also considered the results of the x-rays and the CT scan obtained in 1996 and 1997 (which as earlier summarised showed some evidence of early degenerative changes in the lumbar spine and very minor degenerative changes in the cervical spine), Mr Carey concluded that there was: "absolutely nothing to find on this lady other than diffuse restriction of motion in all directions in the neck and both shoulders (only the left was painful) and a diffuse and restricted range of motion of the whole of the lumbar spine with particular tenderness over the sacro-iliac joint on the left on the other hand the test for sacro-iliac dysfunction were negative". He diagnosed a diffuse pain syndrome, worse in the sacro-iliac region than elsewhere.[60] Under cross-examination the plaintiff agreed that she had been advised by the surgeon that she was suffering from a diffuse pain syndrome.[61] The content of the earliest reports and the radiological evidence to which Mr Carey had regard at that time, suggest that it is unlikely that, as the plaintiff later claimed, this surgeon had also attributed her “problems” to her “bulging discs”;[62]
[60] PCB 48
[61] TN 34
[62] TN 39-40 and 102
Ø Mr Carey recommended blood tests to exclude any co-existent arthritic condition and an injection into the sacro-iliac joint which he performed on 26 March 1998. It appears that following this procedure, the plaintiff complained of numbness on the left side in her leg and foot, necessitating an overnight stay in hospital[63] ("I wasn't able to – had no movement from my – my waist down to my toes in both sides. So I was put in a wheelchair and admitted to hospital"[64]);
[63] PCB 48
[64] TN 33
Ø when reviewed on 11 May 1998 the plaintiff reported feeling "worse" and complained that the injection had worsened her condition. She apparently denied temporary improvement and informed the surgeon that the pins and needles in her leg had taken a week to resolve;[65]
[65] PCB 50
Ø the results of the MRI scans of the plaintiff's lumbar and cervical spine, obtained on 15 June 1998 (disc degeneration between L3/4 and L5/S1 with no focal disc protrusion and minimal loss of signal intensity within the disc consistent with age related change in the cervical spine), were discussed, a self-management/pain management approach was recommended and the plaintiff was advised that surgery was not an appropriate treatment;[66]
Ø in response to a query from the plaintiff’s general practitioner, Dr Thomson, on 21 August 1998, Mr Carey reported that a left shoulder ultrasound had shown supraspinatus and subscapularis tendinitis with evidence of bursal impingement. He recommended referral to an orthopaedic surgeon specialising in management of such conditions;
Ø Mr Carey considered the plaintiff unfit for the work she was doing when seen by him (working with autistic children) and attributed her then work incapacity solely to the injury suffered in December 1996 (which I took to be a reference to any injury to the plaintiff's spine and to her left shoulder).[67]
[66] PCB 50
[67] PCB 51
63 Correspondence contained in materials forwarded by the defendants to orthopaedic surgeon, Mr Simm, on 4 May 2010, included a copy of a letter dated 12 July 1999, sent by Mr Carey to the Director of Anaesthesia & Intensive Care Ballarat Health Services Base Hospital. In this letter the surgeon summarised his view of the plaintiff's position in the following way:[68]
"[The plaintiff] has seen me on several occasions relating to a work injury in December, 1996. This work injury produced left shoulder problems and low back pain with the suggestion at one stage that she had sacro-iliac discomfort as well. Hence a local sacro-iliac injection was undertaken with a rather bizarre and idiosyncratic response for one week.
I must say that I have never been able to determine a precise cause of her pain, and without putting too fine a point on it, her pain all seemed rather in excess of the demonstrable pathology, and including some bizarre and idiosyncratic features.”
[68] DCB 205
64 I have already mentioned the results of the CT scan of the lumbar spine obtained on 22 July 1999 at the request of general practitioner, Dr Thomson (mild central dorsal disc protrusions at the L5-S1 and L4-5 levels without evidence of impingement/compromise of the S1 or L5 nerve roots) and the results of an MRI scan of the cervical spine ordered by Mr Dohrmann on 18 April 2000 (small anterior disc disruptions at the C5-6 and C6-7 which may be of no clinical significance). Mr Carey's correspondence and the further investigations undertaken during this period, suggest that the plaintiff's lower back and possibly her left shoulder/cervical spine remained problematic, although there was little in the way of revealed pathology to explain the cause of any ongoing pain.
65 During re-examination, the plaintiff confirmed that in April 2000 she had believed her ability to work was ruined or seriously impaired as a result of the second back injury. However, the plaintiff also sought to explain to the Court the circumstances, which led to improvements in her lower back symptoms such that she was able to return to work in 2003. She stated:[69]
"… What happened was we – moved from Ballarat to Shepparton, which is a warmer climate. And it enabled us to walk the lake. I went to the gym, I did hydrotherapy, I went into water aerobics. And I just got myself stronger and stronger, and fitter. And I – we used to ride our bikes anything up to nine kilometres over that period time. And then we went into dancing, and we did – we learned rock 'n' roll. And then we would go to lessons on a Monday night, and then on Saturdays we would go anywhere – all over Victoria, to really big rock 'n' roll dances. So I got myself fit enough to be able to do that."
[69] TN 106-107
66 The only evidence from Dr Thomson comprises a copy referral dated 14 February 2005 to general practitioner, Dr Sneyd at the Wyndham House Clinic in Shepparton. According to the plaintiff, this referral was generated by her relocation to Shepparton. Relevantly, the referral recorded a history of work-related back and neck injury and noted current medications, which included Stilnox (nightly) and Valium ("5mg for back spasms pm").[70] This evidence suggests that despite the claimed improvement, as at February 2005, the plaintiff's back remained symptomatic and she required medication (not necessarily nightly) to manage back spasms.
[70] DCB 265
67 The clinical notes from Wyndham House Clinic, include a record of attendances and treatment for the period March 2005 to October 2005 (contained in the materials forwarded by the defendants’ solicitors to Mr Simm in 2010[71]). These notes, among other things, indicated that these drugs continued to be prescribed before the fourth back injury, namely during 2005, 2006 and early 2007.[72] Only prescriptions for Valium, however, were renewed on various dates after May 2007 (at least until the notes end in October 2009).
[71] DCB 213-264
[72] DCB 213-217
68 Under re-examination, the plaintiff told the Court that, in the period between 1996 and 2005, her neck condition had not continued to be a problem ("No, not at all"[73]). This evidence notwithstanding, allowing for on the medical material summarised so far, I was not satisfied that any reported neck condition was fully resolved by February 2005.
[73] TN 105
69 It appears that the plaintiff's claim for serious long-term impairment or loss of body function under section 135A(19) of the Act was submitted in May 2000, well before the flare-up in back and leg pain described in September 2001.
70 The affidavit, which at hearing the plaintiff agreed was sworn on 17 April 2000 in support of the application,[74] among other things, relevantly deposed that:[75]
[74] TN 68
[75] DCB 298-304
Ø prior to 3 December 1996 the plaintiff had not suffered from any spinal, shoulder, hip or other injuries of significance;
Ø there had been a complete and prompt recovery with no continuing back symptoms from a date shortly after a back strain injury which occurred in or about 1985 (which I took to be a reference to the first back injury);
Ø initially, following the second back injury in 1996 the plaintiff had been aware of injury to her left leg and right ankle but later that day she also developed headache, stiffness, pain and aching affecting the left shoulder, leg and left hip;
Ø pain and aching affecting her left leg, left shoulder, neck and back prevented resumption of work, although in 1997 for a period of two weeks she had attempted a return to work;
Ø the plaintiff's symptoms included "pain, aching and restriction of movements in my neck and left shoulder, with symptoms affecting my left shoulder, left arm and severe headaches and migraines. I also suffer similar symptoms affecting my low back and left hip area. The symptoms were precipitated and aggravated by a wide range of activities" (this evidence also indicated that, in April 2000, nearly four years after the injury in 1996, the plaintiff was still troubled by symptoms affecting her neck);
Ø by reason of the plaintiff's injuries, her ability to work had been ruined or seriously impaired on a permanent or long-term basis ("I am unable to undertake tasks involving bending, lifting, carrying or using my arms for handling of children or young people, and any unexpected or physically demanding task involving my arms or my body, causes flare up of my pain and symptoms such that I would require rest and medication. By reason of my injuries I have been unable to travel longer distances at all, and I have been unable to drive for more than short periods. My ability to undertake any tasks involving physical work, sitting, standing or walking for long periods, is greatly impaired and if I attempt these tasks I suffer flare up of my symptoms";
Ø Gardening, recreational walking and her ability to sleep were all impacted by pain and disability and she required daily medication in the control of pain and to assist sleep;
Ø had she not been injured, the plaintiff was intending to move from working 32 hours per week to a full-time, better paid position.
71 Prior to being reminded of the content of her earlier affidavit, during cross-examination, the plaintiff indicated that, due to her current back problems,[76] she suffered pain, aching and restriction of movement in her low back, precipitated or aggravated by a wide range of activities; her ability to work had been ruined or seriously impaired on a permanent or long-term basis; she was unable to undertake tasks involving bending and lifting ("Um, some days I can bend a little bit and do some tasks, and then other days I – I can't do it"[77]); she couldn't undertake physically demanding tasks; doing something unexpected or physical caused a flare up of her back pain and symptoms and really bad pain; she treated a flare up with rest and used a pain patch rather than oral medication; she could only drive and travel longer distances with breaks; her ability to undertake any tasks that involve physical work, sitting, standing or walking for long periods was impaired and if she attempted these tasks she suffered a flare up of her back symptoms; her ability to garden and go for long walks was greatly interfered with and she was only able to engage in these activities for short periods ("It's interfered with on a – the way I used to do it, to the way I do it now. I still do exercises, I still try to walk half an hour, sometimes an hour. It just depends – with breaks in between the walks. Depends on how I feel. If I'm having a better day, then I try to do that"[78]); she had difficulty both falling to sleep and remaining asleep and she required daily doses of medication to assist sleep and control pain.
[76] TN 64-67
[77] TN 65
[78] TN 66
72 The application made in May 2000 and the affidavit in support are not formal court documents. I was told by the plaintiff's counsel during final submissions that an Originating Motion was issued (it was common ground that the claim had been accepted and settled, evidently in June 2002, without a court hearing). However, whilst the application for a serious injury certificate had been accepted and a common law settlement reached in the sum of $100,000, counsel was not able to nominate the body function (or functions) which was accepted as a serious injury.[79]
[79] TN 201-202
73 Under cross-examination the plaintiff conceded that in 2000/2001, her back had continued to be symptomatic, such that a she had been referred to orthopaedic surgeon, Mr Mitchell and admitted to hospital for treatment of an acute exacerbation of back pain.[80]
[80] TN 40-43
74 The only correspondence and material relating to the admission to hospital is contained in correspondence from radiologist, Dr Buirski dated 24 September 2001, addressed to Mr Mitchell,[81] and in reports and correspondence from Mr Mitchell, all of which are found in the materials copied to Mr Simm in 2010.[82]
[81] DCB 211-212
[82] DCB 206-208
75 Dr Buirski's correspondence tells us that, six days before his correspondence, the plaintiff reported acute left-sided back pain with mild radiation into her buttock and to the back of her leg. This pain had not been relieved with simple analgesic and had interfered with her sleep. Apparently, this specialist was told that the pain was quite different to the chronic back pain symptoms experienced by the plaintiff for many years.
76 Having also considered the results of the CT study of the plaintiff's lumbar spine in July 1999, Dr Buirski concluded that the plaintiff's pain was predominantly due to muscle spasm secondary to disc protrusion at the L4-5 level, with clinical signs consistent with an L5 nerve root compression. However, in the absence of significant sciatic type symptoms, Dr Buirski was reluctant to proceed with foraminal steroid injection without first attempting to relieve the muscle spasm. This report is the first to raise any concern about possible nerve root compression.
77 Mr Mitchell's materials consisted of a report dated 19 October 2001 to the plaintiff's then solicitors and a referral dated 5 November 2011 to surgeon Mr de la Harpe. The latter seeking an opinion on whether the surgeon could assist the plaintiff in determining whether numbness in her leg and pain in her back were linked. The referral appears to have been prompted by Dr Buirski’s reluctance to proceed to inject the facet joint and no doubt a concern to investigate whether the symptoms reported were due to nerve root compression.
78 Mr Mitchell's report to the plaintiff's solicitors indicated as follows:
Ø he first met the plaintiff at St John of God Hospital on 21 September 2001 following her admission for an acute exacerbation of back and leg pain.
Ø when first seen by Mr Mitchell the plaintiff reported pain predominantly in her back and radiating into her thigh with a feeling that her left leg was weak. Mr Mitchell's examination revealed diminished sensation in the L5 distribution and weakness of the extensor hallicus longus tendon;
Ø the plaintiff underwent a CT scan of the lumbar spine the next day, on 22 September 2001. I have already summarised the results of this scan, which reported a broad-based postero-lateral disc protrusion, slightly to the left of midline, causing a moderate degree of sub-articular lateral recess stenosis on the left and compressing the L5 nerve root.[83] This is the report where the radiologist said that the degree of protrusion at the L4/5 level had progressed since the July 1999 scan;[84]
[83] DCB 207
[84] DCB 210
Ø the plaintiff had problems tolerating anti-inflammatory medication, which made pain management difficult to control;
Ø on review, facet joint injection was arranged. However, before this could be administered, an exacerbation of numbness in the plaintiff's left leg resulted in a further urgent consultation on 17 October 2001;
Ø by October 2001 the management of the plaintiff's back condition was directed to the facet joint because Mr Mitchell saw no evidence of radicular pain. In his opinion surgery was unlikely to relieve the pain reported in the plaintiff’s back, buttock and posterior thigh, although Mr Mitchell did not rule out the possibility that a specialist in spinal surgery might recommend nerve root decompression and fusion at the L4-5 level. This probably explains the referral to Mr de la Harpe. Under cross-examination the plaintiff was unable to recall either the referral or an attendance on this surgeon.[85]
[85] TN 41-42
79 The result of the CT scan obtained on 22 September 2001 was not among the many radiological reports tendered by the plaintiff. Under cross-examination, the plaintiff was unable to recall undergoing this scan, although she did recall a disc problem (a broad-based disc protrusion) at the L4-5 level.[86]
[86] TN 42
80 Accordingly, by 22 September 2001, there was radiological and clinical evidence of disc protrusion, suggestive of compression of the L5 nerve root and, as at October 2001, the treating surgeon had not ruled out the possibility of surgical intervention. However, the result of the later MRI study, tendered by the plaintiff had only reported degenerative disease at three levels of the plaintiff's lumbar spine, L3/4 to L5/S1.
81 The medical material I have summarised, suggests that, in the period leading up to a settlement of the damages claim in mid-2002, following the incident on 3 December 1996, the focus of ongoing investigation and treatment had been on symptoms affecting the plaintiff’s spine, particularly her lower back. Moreover, by late 2001 there was both clinical and radiological evidence which was thought to show deterioration in the plaintiff’s lower back condition and, at one stage, possible nerve root compression (although by October 2001, Mr Mitchell had not been satisfied that there was evidence of radicular pain. As it turned out the reported result of the MRI in December 2001 confirmed disc disease, but not compression).
82 Relevantly, none of the reports submitted by Mr Carey in 2012 indicated any knowledge of the results of investigations obtained and treatment received in 1999 and 2001 or, for that matter, any earlier pathology and symptoms suggestive of nerve root compression in the plaintiff’s lumber spine during 2001.
The third back injury
83 This apparently occurred in the workplace after a chair on which the plaintiff had been seated rolled back and broke. The claim form,[87] completed within weeks of the incident, tells us that the plaintiff was employed under contract as a teachers’ aid at the Ballarat Special Development School, working 35 hours per week. Further, that the incident on 1 October 2005 had involved both left shoulder and lower back injury and, at the time, the plaintiff was also employed as a residential worker with the first defendant, working night duty for approximately 36 hours per fortnight. If this is correct, when she suffered the third back injury, the plaintiff was working two jobs for more than 50 hours per week.
[87] DCB 6-8
84 Under cross-examination the plaintiff at first failed to recall having any further back problems between 2005 and 2007.[88] However, after being reminded of the incident involving the chair, the plaintiff recalled suffering pain in her back and attendance on Dr Sanders for treatment.
[88] TN 44
85 Neither of the treating doctors named in the claim form, Dr Sneyd or Dr Sanders, submitted reports regarding this incident. Each of Dr Sanders' three reports addressed the fourth back injury only.[89]
[89] PCB 59-72.1
86 However, as mentioned, the materials forwarded to Mr Simm included a bundle of clinical notes kept by the Wyndham House Clinic. These materials also included a short report, dated 9 November 2005, from osteopath, Dr Claire Nolle, addressed to Dr Sanders (“I am working with the provisional diagnosis of left SIJ sprain with associated muscle hypertonicity of gluteus muscles and lumber erector spinea muscles with referred pain to neck and shoulder”).[90]
[90] DCB 266
87 As mentioned, the plaintiff was referred to Dr Sneyd in February 2005 and, at the time her medications included Stilnox and Valium, the latter prescribed in the treatment of back spasms.
88 The clinical records tendered, for the period 1 March 2005 to October 2009, reveal that Stilnox was prescribed by doctors working at the clinic between 6 April 2005 and 20 February 2007 and Valium was prescribed between 6 April 2005 and 19 October 2009. These records also indicate that, the plaintiff saw Dr Sneyd on some nine occasions between 1 March 2005 and 30 September 2005. During this period, the plaintiff appears to have been treated for unrelated conditions. However, on 6 April 2005, 18 May 2005 and 18 July 2005 this doctor also renewed prescriptions for Stilnox and Valium and on 15 August 2005, 29 August 2005, 12 September 2005 and 30 September 2005 he renewed her prescription for Stilnox.
89 Under cross-examination, the plaintiff recalled being prescribed Stilnox at least as at September 2005. However, while the plaintiff did not quibble with the record made, she was unable to recall prescriptions of Stilnox and Valium from as far back as July and August 2005.[91] The records kept (and some of the concessions made by the plaintiff during cross-examination) nonetheless suggests that, from a time prior to February 2005, these medications were likely prescribed in the treatment of a back condition.
[91] TN 45
90 It appears that the plaintiff first consulted Dr Sanders after the third back injury. The clinical notes record an attendance four days after the incident on 4 October 2005 and some 32 further attendances (mostly on Dr Sanders) up to and including 20 February 2007. Many of these attendances involved treatment of lower back symptoms, while some appear to have only involved renewal of the plaintiff’s prescriptions, particularly Stilnox and Valium.[92]
[92] DCB 220-225
91 I don't propose to set out in full each of the entries made during this period. In summary:
Ø on 4 October 2005 the plaintiff presented to Dr Sanders having: "Hurt left shoulder, and lower back, recurrence, pain radiating to buttock, not down legs, or in groins." On examination, Dr Sanders noted no bruising, normal but painful movement of the left shoulder and soreness over the left supraspinatus and "no # Lower back, no spasm, no limp, diff with flexion (sic)." I took the latter to mean that the examination in respect to the plaintiff's lower back had only demonstrated difficulty with flexion. Relevantly, the plaintiff reported that she was seeing a physiotherapist regularly for treatment of past lower back injury and further, that she had been able to continue her normal work duties because these did not involve lifting. A WorkCover certificate was provided on this occasion;[93]
[93] DCB 220
Ø on review on 11 October 2005, the plaintiff’s account left Dr Sanders with the understanding that the plaintiff’s lower back was still sore "around L3", as was her left shoulder and that she was seeing Kevin Colley (a naturopath whom the plaintiff agreed had treated her lower back condition[94]). On this occasion, the doctor placed the plaintiff on alternative duties for one month. As to any prescription medication, I note that the plaintiff, who has an intolerance to steroid-based medication, asked for, and was refused, prescription of the painkilling medication, 'capdex' (this is probably a reference to the analgesic, Capadex). In keeping with the entry made, the plaintiff had not requested other analgesic medications.[95] However, under cross-examination the plaintiff agreed that, as recorded, she had requested prescriptions for Valium and Stilnox. She indicated to the Court that this medication was to aid sleep;[96]
[94] TN 45
[95] DCB 220
[96] TN 45
Ø on review on 17 October 2005, the record only refers to ongoing soreness in the plaintiff's left shoulder, with additional treatment from the naturopath predicted to take some six weeks. The clinical notes made by Dr Sanders also record her understanding of a discussion with the plaintiff about WorkCover. According to the notes made, the plaintiff indicated to this doctor that she hoped to leave the mental health position and only work with the first defendant – a job she did not wish to jeopardise by revealing her WorkCover claim. The record also shows that the discussion extended to the plaintiff's concern that, if she returned to normal duties, this would prevent her claiming her physiotherapy expenses.[97] Under cross-examination, the plaintiff was able to recall attending for physiotherapy treatment of her lower back ("for just a short period of time"), but not the discussion with the doctor as recorded.[98] Entries in the clinical notes in succeeding months suggest, however, that the plaintiff’s physiotherapy treatment was ongoing. Furthermore, whether or not the plaintiff had, as she also claimed, informed the first defendant of an injury suffered in her other workplace, this record suggests that in October the plaintiff continued to require treatment of a symptomatic lower back condition;
[97] DCB 220-221
[98] TN 45-46
Ø on 2 November 2005 Dr Sanders recorded that the plaintiff was "on WorkCover for back, shoulder and neck, seeing claire, at tara o’calloghans physio clinic, back to normal duties now, but still needing the physio regularly (sic)".[99] This appears to be a reference to Dr Claire Nolle. As mentioned, on 9 November 2005, she relevantly advised Dr Sanders of her provisional diagnosis of left sacroiliac joint sprain.[100] On this occasion, the plaintiff was again prescribed Stilnox and Valium. Under cross-examination, the plaintiff was unable to recall Dr Nolle or having received osteopathic treatment for her back injury.[101] Further, she was unable to recall this attendance on Dr Sanders or that she had returned to normal duties and was undergoing regular “physiotherapy”. She did, however, agree that, at that stage, she was still being prescribed Stilnox and Valium because back pain interfered with her sleep; [102]
[99] DCB 221
[100] DCB 266
[101] TN 64
[102] TN 47
Ø the plaintiff’s prescription for Stilnox was renewed on 22 November 2005.[103] Under cross-examination, the plaintiff conceded this had been prescribed to aid sleep;[104]
[103] DCB 221
[104] TN 47
Ø on 8 December 2005 in a discussion with Dr Sanders about her back condition, the plaintiff informed the doctor she saw a physiotherapist regularly and she suffered chronic insomnia. The record indicates that the plaintiff also told this doctor that she found it cheaper to attend the surgery for a prescription, rather than pay $10 for a prescription. She was again prescribed Stilnox.[105] Under cross-examination, the plaintiff agreed that during this discussion the doctor had advised against the plaintiff remaining on sleeping tablets in the long-term;[106]
[105] DCB 221
[106] TN 47-48
Ø on 20 December 2005, the plaintiff's prescription for Stilnox was renewed;
Ø on 12 January 2006, the plaintiff saw Dr Sneyd ("Is needing medication"[107]) who, among other things, renewed her prescriptions for Stilnox and Valium. Under cross-examination, the plaintiff agreed that these medications were prescribed for sleep and back pain because back pain interfered with her sleep;[108]
[107] DCB 221
[108] TN 49
Ø on 30 January 2006, the plaintiff again saw Dr Sanders who recorded complaints of "frequent headaches back of head, feels coming from upper back, wanting to see Kevin Collie for physio to alleviate headaches, went to a physio, had pain + + for 3 days after, taking valium prn only, and the odd Stilnox when trouble sleeping (sic)".[109] Stilnox and Valium were again prescribed. This record indicated to me that the plaintiff had undergone physiotherapy with another practitioner and, while she was unable to recall complaining about headaches coming from her upper back, the plaintiff did not challenge the record. Moreover, the plaintiff agreed that as at 30 January 2006 she was taking Valium and the odd Stilnox tablet when she had trouble sleeping;[110]
[109] DCB 221-222
[110] TN 49
Ø on 15 February 2006, the plaintiff again attended Dr Sanders to renew her prescriptions. On this occasion, among other things, she told the doctor that she was taking Valium "one at night to sleep, gets back pain at night."[111] Prescriptions for Stilnox and Valium were renewed. The plaintiff did not challenge the record and agreed that as at February 2006 she still required Stilnox and/or Valium for back pain at night;[112]
[111] DCB 222
[112] TN 49
Ø on 3 and 20 March 2006, the plaintiff obtained further prescriptions for Stilnox from two other doctors;[113]
[113] DCB 222
Ø at hearing, the plaintiff agreed that on 6 April 2006, in addition to obtaining further prescriptions for Stilnox and Valium, she sought a letter from Dr Sanders to support ongoing massage treatment of her work-related back injury;[114]
[114] DCB 222 and TN 50
Ø while the plaintiff did not seek to challenge the record, at hearing she was unable to recall having informed Dr Sanders on 12 April 2006 that she had jarred her back "the other day, accidentally knocked into brick ledge with leg, which put lower back out, to see Kevin Colley";[115]
[115] DCB 222 and TN 50
Ø on 28 April 2006, Dr Sanders again prescribed Stilnox, which the plaintiff agreed was prescribed for sleep, because she suffered back pain at night;[116]
[116] DCB 222-223 and TN 50-51
Ø attendances on 1 and 9 May 2006 appear to relate to other conditions;
Ø on 17 May 2006, the plaintiff obtained a further prescription for Stilnox;
Ø at hearing, the plaintiff was unable to recall a long discussion with Dr Sanders on 7 June 2006 about her use of Stilnox and Valium. According to the record, the plaintiff denied abusing these medications and told her doctor that she required them to sleep "to function the next day”. At the same time, she indicated that she was “thinking of weaning off them."[117] The record further indicates that the doctor suggested that this process occur during spring or summer time. The plaintiff was again prescribed Stilnox and Valium. The plaintiff did, however, recall "being on Stilnox for a little while, yes. For a period of time, yes"[118] and, when pressed, agreed that from at least as far back as April 2005 she had taken Stilnox and Valium to help her sleep. However, notwithstanding earlier evidence through which the plaintiff had clearly indicated that these medications were prescribed because back pain interfered with her sleep, on this occasion, the plaintiff resisted the suggestion that she had taken these medications for more than a year due to back pain.[119] I found the plaintiff's evidence in this regard unconvincing;
[117] DCB 223
[118] TN 51
[119] TN 52
Ø on 27 June 2006 and 15 July 2006, the plaintiff obtained further prescriptions for Stilnox. On July 2006, she saw another doctor for an unrelated condition;
Ø on 2 August 2006, in addition to treatment for unrelated conditions (including ongoing problems with her left ear), the record shows that the plaintiff sought a letter from Dr Sanders to confirm that the plaintiff required Stilnox and Valium in the treatment of a "sore back related to a fall, takes these so she can work the next day."[120] On this occasion, the plaintiff obtained further prescriptions for Stilnox and Valium. Moreover, it appears that Dr Sanders prepared a certificate dated, 7 August 2006, to the effect that, if the plaintiff was to continue in the workforce, she required Valium (to manage muscle spasm related to her back injury) and Stilnox (to get good quality sleep “without pain hindering her”) in the treatment of a back condition.[121] Under cross-examination, somewhat surprisingly, the plaintiff recalled a conversation with the general practitioner about her ear but not the conversation about the matters to do with a sore back and her request for a letter.[122] She did not challenge the record and, having later read the letter, without recalling whether this had been submitted to the WorkCover insurer in respect to her back injury, nevertheless agreed that the letter was accurate. In these circumstances, I was satisfied that as at August 2006, the plaintiff probably did continue to suffer muscle spasms related to the third back injury and back pain at night which necessitated the taking of these medications.[123] I note that Mr Simm, took these clinical notes into account, when, in June 2010, he informed the defendants’ solicitors: “There were further references to back pain in 2006 and the fact that (the plaintiff) required Stilnox and Valium for chronic symptoms presumably related to the original injury in 1996”;[124]
[120] DCB 223
[121] DCB 267
[122] TN 52-53
[123] TN 57-58
[124] DCB 51
Ø on 22 August and 12 September 2006, the plaintiff obtained further prescriptions for Stilnox;
Ø at hearing the plaintiff said that she was able to recall some of the record made by Dr Sanders on 2 October 2006 in which it was indicated that the plaintiff reported "sore back 2 weeks ago, settled quickly, aware of good back regime…"[125] The record also shows that there was further discussion about the plaintiff's use of Stilnox (which she reported taking nightly) and Valium. According to the record the plaintiff told her doctor that she was working night shifts in a psychiatric ward, she needed proper sleep and she also suffered back pain when in bed which affected her ability to sleep. Further prescriptions were obtained for Stilnox and Valium;
[125] DCB 224 and TN 53
Ø the plaintiff obtained prescriptions for Stilnox on 31 October 2006, 21 November 2006 and 6 December 2006;
Ø at hearing the plaintiff was able to recall a long discussion with Dr Sanders on 20 December 2006 and having suffered insomnia, but not also hurting her lower back in December 2006.[126] She did, however, recall being addicted to sleeping medication and needing to cease use of this medication. The record shows that, on this date, the plaintiff reported having "stilnox, and using the odd valium, get anxious if can't sleep or she can't cope throughout the day with no sleep, No trouble falling asleep but wakes up 2 hrs later if doesn't take sleeper Taking less medication the month before, but hurt her lower back and started stilnox up again, and has not got back into old pattern… (sic)".[127] Stilnox and Valium were amongst the medications prescribed on this date. Under cross-examination, while she recalled taking Stilnox and Valium, the former to sleep, the plaintiff again resisted the proposition that she took these medications because of back pain, indicating that she recalled being addicted to the sleeping medication, which she had to “get off”;
[126] TN 54-55
[127] DCB 225
Ø on 17 January 2007 and 6 February 2007, the plaintiff obtained further prescriptions for Stilnox;
Ø on 20 February 2007, the plaintiff was treated for an unrelated condition. However, on this occasion, in addition to other prescription medication, the doctor again prescribed Valium and Stilnox. This was the last attendance recorded prior to the fourth back injury on 21 May 2007. Even were an addiction one reason for the plaintiff renewing her prescription of Stilnox, the further prescription of Valium indicates that, as late as February 2007, the plaintiff probably required both medications in the management of her lower back condition.
92 The plaintiff was further questioned about her use of Stilnox and Valium when, during cross-examination, the accuracy of the history given to various specialists in 2012 was challenged. [128] I will discuss their reports later. However, through her responses on this occasion, the plaintiff indicated:
[128] Orthopaedic surgeons, Mr Miller and Mr Grossbard, TN 78-84
Ø she had accepted that from at least February 2005 Stilnox and Valium had been prescribed to aid sleep. However, the plaintiff at first sought to blame her shift work for problems with sleep, not lower back pain. She told the Court that, the main reason for taking Stilnox had been because she could not sleep due to working multiple shifts (3 to 4 different shifts each week);[129]
[129] TN 78
Ø in August 2006, she was taking one Valium at night for back pain;[130]
[130] TN 79
Ø while she could recall taking Stilnox and Valium after the third back injury in 2005, she could not recall whether she took these medications “all through 2005 and 2006”.[131] However, the plaintiff did not contest the content of Dr Thomson's letter of referral dated 14 February 2005 in which, among other things, he had indicated that the plaintiff had a history of the work-related back injury and she was taking Stilnox at night and Valium, "5 mg for back spasms pm";[132]
[131] TN 80
[132] DCB 265
Ø acceptance of the proposition that she had ongoing lower back problems in 2000 and again in 2005 and 2006;[133]
Ø acceptance of the proposition that in 2005 and 2006, she had ongoing problems with her back and sleep, for which medication had been prescribed.[134]
[133] TN 83-84
[134] TN 84
93 In re-examination, the plaintiff sought to clarify her evidence about the use of Stilnox and Valium. In summary, the plaintiff indicated the following:[135]
[135] TN 98-100
Ø from the period after her return to work in 2003 until the further back injury in 2007, she had been addicted to Stilnox;
Ø the third back injury in October 2005 had caused: "just a sore back. I didn't have a massive flare-up or anything, just a sore back";
Ø she had taken Stilnox in the period between October 2005 and May 2007, not for back pain (or as she later added "Not very often" for back pain), but because she was addicted to this sleeping medication.
94 Having regard to the evidence earlier summarised, I have accepted that the plaintiff probably had developed an addiction to this medication, possibly before the third back injury. I have, however, rejected the plaintiff's evidence in re-examination, where she appeared to resile from the evidence given under cross-examination and to contradict the record through which it was clearly shown that the plaintiff reported sleep interrupted by back pain and gave this as a reason for regularly renewing her prescriptions for Stilnox and Valium.
95 Accordingly, without repeating this in detail, analysis of impairment of the plaintiff’s lumbar spine before the fourth back injury has shown that:
Ø by late 2005, three WorkCover claims had been submitted and accepted in respect to injury to the plaintiff’s lower back;
Ø there was radiological evidence of degenerative disease in plaintiff's lower back from at least 1998;
Ø there was evidence of a chronic pain syndrome, which the treating surgeon had not been able to link to any underlying pathology;
Ø there was later evidence suggestive of progression of the degree of protrusion at the L4/5 level and possible compression of the L5 nerve root. However, as at December 2001 there was no evidence consistent with there being radicular pain or the need for surgical intervention. The reported result of the more sophisticated MRI imaging had only shown evidence of degenerative disc disease affecting this level of the lumbar spine and the levels above and below; and
Ø following each of the earlier back injuries the plaintiff had largely rehabilitated and she had returned to work (working as an attendant carer some 68 hours per fortnight at the time of the fourth back injury), albeit with some ongoing lower back pain and symptoms, which in 2005, 2006 and early 2007 interfered with her sleep and necessitated treatment from time to time, mostly in the form of sleeping and antispasmodic medication.
Medical Investigation, Treatment and Diagnoses Following the Fourth Back Injury
96 It is convenient to deal with the evidence relating to investigation, treatment and diagnoses mostly in the order in which these events occurred.
97 Dr Sander's clinical notes and reports indicated as follows:[136]
[136] PCB 60-61 and DCB 226
Ø the plaintiff first attended on 23 May 2007, complaining of a sore lower back, having, on 21 May 2007, jarred her back when she pushed a client in a wheelchair over a pothole. Examination had revealed pain on back extension. No record was made of radiculopathy, nor for that matter prescription of painkilling medication (as was deposed by the plaintiff in April 2010[137]). Rather, the record shows that Tramal was discontinued. This had been prescribed in February 2007 after the plaintiff sought treatment for a sore left wrist. The doctor diagnosed lower back injury caused by the workplace incident two days earlier. She provided a WorkCover Certificate for one week. The plaintiff also deposed that she had been referred to a physiotherapist, Aaron Plant. The clinical notes do not mention this, although the notes record: "to Jim Marx", who was also mentioned during later consultations. He was probably a treating physiotherapist;
[137] PCB 40
Ø on review on 30 May 2007, the notes record complaint of continuing low back pain, referral for CT scan of the lumbar/sacral spine, that the plaintiff was undergoing physiotherapy and prescription of painkilling medication, Capadex;
Ø the CT scan on 30 May 2007 reported a normal examination "with no cause for the patient's current symptoms identified".[138] More particularly, the report stated that no lumbar disc lesion or spinal canal stenosis had been demonstrated;
[138] PCB 67
Ø a number of further attendances for treatment occurred during June and early July 2007, with complaint of increased back soreness, muscle spasm and poor sleep. The plaintiff reported some benefit from traction, evidently administered by Jim Marx, but no improvement in back pain. During this period a further prescription for Valium was obtained;
Ø on 26 July 2007, the plaintiff reported twice weekly physiotherapy and her readiness to return to alternative duties. The clinical notes made suggest that, initially, the plaintiff was certified as fit to return to alternative duties for two hours per day on alternative days;
Ø on review on 13 August 2007, the plaintiff complained of work-related exacerbation of low back pain. This prompted the doctor to notify the insurer that the plaintiff was to take a break every 20 minutes. On this occasion Dr Sanders referred the plaintiff to orthopaedic surgeon, Dr Brighton-Knight.
98 Dr Brighton-Knight's report, dated 28 September 2007, addressed to Dr Sanders, was tendered by both parties.[139] The salient features of this report are summarised as follows:
[139] Exhibit P 2 and DCB 268-269
Ø as a result of the workplace incident the plaintiff reported severe and disabling back pain and significant disability on the alternate days not worked;
Ø pain was predominantly in the back, although the plaintiff reported some radiation down to her legs when pain was very severe;
Ø examination had not revealed any neurological deficiencies, although straight leg raising and hip examination had produced mechanical low back pain on the left-hand side of the lumbar spine;
Ø the surgeon had access to the CT scan which, in his opinion, showed no diagnostic features to explain the extent of the plaintiff's pain;
Ø it appears that this surgeon had some knowledge of previous issues with chronic low back pain in the 1990s. In his opinion, the back injury in 1996 had led to "significant physical and mental trauma". It was, he added: "quite possible that these have led to a degree of sensitisation that has been well managed up until the events of this year";
Ø the surgeon diagnosed chronic pain syndrome due to sensitisation of the plaintiff's spinal cord in relation to chronic pain issues over the last decade ("I am sure that Joy has a degree of central sensitisation which is a true neuro-physiological syndrome and she needs an expert to help her manage this");
Ø the surgeon referred the plaintiff to pain management expert, Dr Lim and arranged for an MRI scan of the plaintiff's lumbar spine which he anticipated (correctly as it turned out) would not reveal any diagnostic features amenable to surgical invention. I did not, however, have a report of the result of any MRI scan ordered by Dr Brighton-Knight.
99 Accordingly, if, as submitted by the defendants, the plaintiff is suffering from a long-standing chronic pain syndrome, this treating specialist’s evidence suggests that, in 2007, any chronic pain condition was likely mediated by organic, not psychological factors.
100 The results of MRI scan reported on 1 October 2007, addressed to "Dr D Mitchell" indicate, firstly, the plaintiff presented with chronic lower back pain radiating into both legs and, secondly, the radiologist had not had the opportunity to compare the results obtained with any earlier film. Lastly, the report shows that, in addition to the evidence of lower three level disc degeneration (involving broad-based disc bulge and right foraminal annular fissure at the L3-4 level, left sided broad based disc bulge with superimposed left paracentral annular fissure at the L4-5 level and a small central disc protrusion at the L5-S1 level) the radiologist had noted evidence of bilateral subarticular recess canal stenosis (worse on the left than the right) with mild posterior displacement (without impingement) of the traversing left L5 nerve root.
101 Returning to the clinical notes, kept from October 2007 and throughout 2008, these indicate that the plaintiff continued working reduced hours (albeit with some difficulty) and was treated for lower back pain. Repeat prescriptions relevantly included Capadex and Valium.
102 The plaintiff was first examined by the defendants' orthopaedic surgeon, Mr Polke, some 11 months after the fourth back injury, on 22 April 2008.[140] At the time, the materials available to this surgeon included the MRI imaging obtained on 1 October 2007, but not the result of the earlier CT scan ordered by the general practitioner.
[140] Exhibit P2 (DCB 18-23)
103 Mr Polke took a history of the incident on 21 May 2007, the treatment received and the plaintiff's return to part-time light duties on a return to work program (working three hours per day, three days per week). He was told that the plaintiff could drive her automatic car and she was able to undertake activities of daily living.
169 In July 2012, Mr Simm provided a supplementary report,[201] having, he said, received documents prepared by Mr Carey and dated 7 January 2010 and 11 January 2010. These documents were not tendered. However, by Mr Simm’s account in January 2010, Mr Carey had advised that there was: "absolutely no evidence of nerve root irritation or conduction deficit in either lower limb. She does on the other hand have altered sensation all the way down the front of the right lower limb from the groin to the toes to pinprick and light touch of a non-dermatomal distribution". Mr Carey had further advised that there was no clinical reason for operative intervention and reiterated his opinion the problem remained one of pain management.
[201] DCB 66-67
170 On this occasion, Mr Simm advised the defendants that his earlier diagnosis, exacerbation of a long-standing chronic spinal pain syndrome, was unaltered. He could not, he said, explain the plaintiff's clinical course on the basis of any identifiable organic pathology or physical injury. He reiterated his earlier advice that assessment by specialists in the management of chronic pain and psychiatry may be an appropriate course to pursue.
171 Professor Marshall reviewed the materials on 18 May 2012.[202] These included copies of the multiple radiological and medical reports previously provided to Mr Simm in June 2010. Unlike Mr Simm, who had re-examined the plaintiff two days earlier, Professor Marshall was not also given the results of the most recent radiological images obtained on 7 May 2012. Nor did he receive copies of psychiatrist, Dr Swift's reports and the earlier reports submitted by Mr Simm.
[202] Exhibit P2 (DCB 44-49)
172 Professor Marshall apparently responded to a number of questions (as repeated in the body of his report). The salient features of his further report are summarised as follows:
Ø Professor Marshall summarised the radiological findings reported between December 1996 and 8 April 2009. Dr Buirski’s letter reporting, among other things, the results of the CT scan performed by him on 22 September 2001, not the report of this scan, was included in the material forwarded;
Ø the earlier reported personal and injury history and the results of physical examination were summarised, as was the earlier diagnosis and recommendations made in 2009 for treatment;
Ø as to the difference between the radiological evidence obtained before and after the fourth back injury, Professor Marshall contrasted the earlier MRI imaging showing degenerative changes in the cervical and lumbar spines at multiple levels without evidence of neural impingement with the later imaging of the lumbar spine which he said: "showed bilateral subarticular recess canal stenosis more on the left than the right with some mild posterior displacement without definite impingement of the traversing left L5 nerve root. Other imaging showed impingement on the S1 nerve root sheaths";[203]
[203] Exhibit P2 (DCB 48)
Ø as to the extent of the aggravation injury suffered on 21 May 2007 (taking into account the results of the CT scan obtained on 22 September 2001 in which the radiologist had reported progression in the degree of protrusion at the L4/5 level, the complaints of back pain throughout 2005 and 2006 when Stilnox and Valium were prescribed and evidence of treatment for back pain by a physiotherapist and an osteopath), Professor Marshall advised that, in his opinion, there had been incremental aggravation of the plaintiff's symptoms with aggravation "as described" on 21 May 2007;
Ø while he considered this opinion to be speculative, Professor Marshall, further advised, on the balance of probabilities: "that (the plaintiff's) back may not have been in a similar or same condition had the aggravation of 21. 5.007, not occurred (sic)";[204]
Ø as to whether the changes revealed by imaging obtained before and after 21 May 2007 were due to factors other than work-related aggravation on 21 May 2007, Professor Marshall advised that the imaging suggested progressive degenerative changes associated with age and constitutional change. In particular the change described in the CT scans from 1999 to 2001 was consistent, he said, with constitutional change and with incremental progression of symptoms;
Ø in Professor Marshall's opinion, age-related and constitutional change have "resulted in incremental increase in symptoms of low back pain from 1999 to 2009, with an aggravation/recurrent exacerbation of pain associated with work activities on 21.5.2007, following which further incremental slow age-related and constitutional changes likely to have occurred but without reversion to the pre-injury condition, and with continuing effect of the work injury of 2007 contributing to symptoms. The proportionality of effect of continuing constitutional change and of work injury exacerbation in 2007 in May is speculative but a figure of 50% of each component may be appropriate(sic).[205]
[204] Exhibit P2 (DCB 49)
[205] Exhibit P2 (DCB 49)
173 By a report, dated 1 June 2012, treating general practitioner, Dr Sanders responded to a series of questions posed by the plaintiff’s solicitors.[206] The questions were not tendered. However, it was clear from the report that Dr Sanders’ evidence was supportive of the view that the plaintiff’s injury and ongoing disability, chronic lower back pain, was an organic condition to which her employment with the first defendant was a significant contributing factor. While she considered the plaintiff not then fit for employment, Dr Sanders nonetheless considered part-time employment (“starting off on something like 2 hours per day would be sufficient”[207]) that did not also involve lifting or prolonged sitting or standing, was possible.
[206] PCB 60-61
[207] PCB 61
174 The plaintiff was examined next by Mr Grossbard on 24 July 2012, at the request of her solicitors.[208] While it was evident from Mr Grossbard's report that he had examined a series of radiological studies, the only specific studies discussed by him were the x-ray and MRI studies obtained in May 2012. Unfortunately, the series of documents to which Mr Grossbard said he had regard were not also identified in his report.
[208] PCB 104-107
175 As mentioned, under cross-examination the plaintiff conceded that the history given to the specialist as to any problems with her back prior to the fourth back injury, had not been accurate. Apart from this matter, the salient features of Mr Grossbard's report are summarised as follows:
Ø the plaintiff described constant low back pain in the mid-lumbar area radiating into both buttocks (worsened by bending over to make a bed, but helped by stretching exercises), right leg pain she likened to an electric shock, in association with spasms in her foot and calcaneal area, paraesthesia and numbness under her foot with numbness in her second toe, pain that felt like an ankle sprain, reduction in her ability to walk sit and stand over longer periods, difficulties in activities such as putting on her shoes and variable capacity to undertake household tasks;
Ø on examination there was tenderness at the L4-5 level, a reduction in flexion and extension, diminished sensation in the whole of the left leg in a non-anatomical distribution and reduced sensation to cold on the left side (in view of the plaintiff's complaints regarding her right leg the reference to the left leg was likely an error in the report) no muscle wasting and power in both lower limbs was normal;
Ø Mr Grossbard noted evidence of a degenerative disc bulge at the L4-5 level in association with right-sided sciatic symptoms, which he attributed to a long series of injuries aggravated in particular by the circumstances of the fourth back injury (and by what he understood to have been a further incident of aggravation in October 2009, in the lead up to the plaintiff ceasing her employment);
Ø there was evidence of symptoms of back pain and intermittent sciatica without evidence of nerve root compression causing radiculopathy. In Mr Grossbard's opinion (despite the absence of radiological evidence supportive of ongoing radiculopathy), the nature of the plaintiff's pain and the aggravating and relieving factors reported were highly suggestive of foraminal stenosis in association with degenerative disc disease and disc bulging at the L4-5 level in particular. He advised that functional radiology, such as an upright and weight-bearing MRI scan provided a means of proving intermittent nerve root irritation caused by dynamic factors;
Ø while Mr Grossbard had identified what he believed to be psychological issues associated with the plaintiff's injury (I expect the clinical finding of diminished sensation in a non-anatomical distribution was one of these issues), he was satisfied that most of the plaintiff's symptoms were mechanically-based;
Ø the plaintiff's work had been a significant contributing factor to the onset of pain and aggravation of her underlying degenerative spinal disease;
Ø despite fluctuations in the level of her discomfort from time to time, the plaintiff's long-term prognosis for recovery was likely very poor and she remained prone to further aggravations in the future;
Ø having also noted that the plaintiff had tertiary qualifications and good computer skills, Mr Grossbard opined that the plaintiff was partially and permanently incapacitated for all employment, although he felt that she would cope with simple sedentary duties on a limited hours basis and that such employment needed to take into account her age and the recurrent and delicate nature of her back injury;
Ø Mr Grossbard advocated ongoing conservative treatment with an appropriate exercise program.
176 The plaintiff deposed that in June and July 2012, she participated in a pain management program at the Albury/Wodonga Hospital. For five days per week over a five week period, the plaintiff was an inpatient, under the care of pain management specialist, Dr Todhunter.[209] According to the plaintiff, the program, which had provided various therapies and a range of strategies to cope with pain, had been helpful.
[209] PCB 18.2
177 Dr Todhunter's only report is dated 8 August 2012. I understood from this report that Dr Todhunter had seen the plaintiff intermittently during the period she participated in the last mentioned pain management program and, more recently, on 3 August 2012 he saw her for an individual consultation.
178 In a fairly lengthy report, Dr Todhunter responded to a series of questions (some of which were not fully articulated) posed by the plaintiff's solicitors. It is not necessary to canvass in any specific detail all of the responses given, as a number of the questions asked were directed to seeking an opinion on the biomechanics of the pain described by the plaintiff and the diagnostic benefits, if any, of obtaining functional MRI imaging. These questions, were no doubt prompted by Mr Grossbard's recommendation that the solicitors arrange for functional imaging to help prove that dynamic factors were contributing to nerve root irritation.
179 In summary, the salient features of Dr Todhunter's report were as follows:
Ø while he had observed generalised reduced range of movement of the plaintiff's lumbar spine, Dr Todhunter had not found signs of any neurological deficit or weakness peripherally in the right leg ("There were no symptoms or signs of any significant issue suggesting sinister or major neurological problems"[210]) The absence of signs of neurological deficit accord with the clinical findings reported by Dr Brighton-Knight, Mr Polke and Mr Miller in 2007, 2008 and 2012 respectively and with those reported by Mr Carey and Mr Simm in 2010 and Mr Grossbard in 2012 (if I accept as I have that Mr Grossbard was probably referring to the right leg). Each of these specialists found altered sensation in the right lower limb in a non-anatomical distribution. Their findings in this regard are to be contrasted with Professor Marshall's clinical findings in 2009 when he recorded evidence of numbness below the right knee in the L5/S1 distribution;
[210] PCB 74
Ø he diagnosed non-specific low back pain (namely pain, the exact anatomical cause of which was not evident from the multiple scans obtained) relating to the earlier lower back injuries. Notably, he diagnosed non-specific lumbosacral pain caused by the fourth back injury (this diagnosis generally accords with the conclusions reached by Mr Polke, Mr Carey, Mr Simm, Mr Miller and Mr Grossbard) as well as right leg pain extending down to the foot with associated pins and needles. The latter Dr Todhunter believed to be indicative of radicular pain/sciatica. I understood this to mean that he considered the right leg pain could be caused by irritation from damaged discs. This conclusion accords with the opinions expressed by Professor Marshall, Mr Miller and Mr Grossbard, each of whom accepted that recurrent right leg pain was likely due to the effects of an unresolved aggravation injury;
Ø in Dr Todhunter's opinion the main reason for persistent pain was the development of complex neurological changes in the transmission and processing of pain signals within the spinal cord and the brain ("This is referred to (as) a central sensitisation and wind up in the context of what is known as neuroplasticity, that is, changes in the function of the central nervous system without any physical change…"[211]);
[211] PCB 74
Ø the plaintiff had indicated that pain interfered moderately with her general activity, walking ability and sleep but interfered "profoundly" with her overall enjoyment of life;
Ø Dr Todhunter drew attention to the very poor relationship between reported pain and what is seen on imaging. He explained that MRI and CT scan do not reveal the complex changes which occur in spinal cord transmission of pain signals to the brain, which involve a functional, not physical, change within the spinal cord;[212]
[212] PCB 75
Ø pain is not purely a mechanical problem as there are complex changes in the central nervous system ("The intervertebral disc is innervated and this is the originating site of pain sensation to disc pain"[213]);
[213] PCB 75
Ø based on evidence and research into chronic pain, in Dr Todhunter's opinion the main cause of chronic pain relates to neurophysiological changes. I have assumed that this would be so, where, as in this case, any significant psychological contribution, such as a functional overlay has been ruled out by psychiatrists from both sides;
Ø the exiting spinal nerve can be affected by a disc protrusion physically pressing on a nerve and, in this case, the MRI scan obtained on 1 October 2007 indicated minor posterior displacement without impingement of the traversing left L5 nerve root, although at the time of the plaintiff did not have ongoing left leg pain. In Dr Todhunter's opinion, this finding was irrelevant to the plaintiff's current symptoms because the plaintiff reported pain confined to her right leg. However, research, which he said had indicated that material leaking out of the intervertebral discs, particularly the nucleus of the disc, can irritate the adjacent nerve roots and cause anti-inflammatory reaction. This, Dr Todhunter explained, meant that individuals can develop radicular symptoms in the absence of neurocompression. In his opinion the pain reported in the buttock/gluteal region of the plaintiff's spine was probably part of her radicular symptoms, rather than being caused by the sacroiliac joint;[214]
[214] PCB 75-76
Ø in Dr Todhunter’s opinion the only treatment with a high likelihood of reducing lumbosacral and leg pain in the long term, involved neuromodulation with a combination of spinal cord stimulation and superior cluneal nerve stimulation. This was treatment for which Dr Todhunter sought approval from the insurer and had arranged for a second opinion from another pain specialist. Based on the plaintiff’s affidavit and oral evidence, her husband's recent ill-health had delayed seeking this second opinion, although she stated that she still intended to attend to obtain this opinion;[215]
[215] PCB 18.2 and TN 109
Ø relying on the evidence that the plaintiff had returned to the workforce and was working some 34 hours per week prior to the fourth back injury, Dr Todhunter accepted that, "even if her back wasn't perfect any problem with her back was not interfering noticeably with her physical function… Therefore, in terms of her ongoing lumbosacral and right leg pain, bearing in mind she did not have any right leg pain previously, the event as described… which resulted in the development of further back pain and right leg pain was a significant event.Therefore in my opinion her injury and therefore her work… was a significant contributing factor to cause an injury and her ongoing pain. In the sense that she had documented previous degenerative lumbar spine disease this would necessarily be seen as an aggravation of her degenerative lumbar spine disease in terms of causing it to become symptomatic. The actual physical changes in her lumbar spine have not really progressed to any extent over the years interestingly enough but again that can be well explained by the neuroplasticity changes…";[216]
[216] PCB 76-77
Ø Dr Todhunter clearly attributed the plaintiff's pain to both the physical changes in her lower back and neuro-physiological changes in the spinal cord. In doing so, he rejected the suggestion that the plaintiff's pain was psychogenic in origin;
Ø while he thought the pain management program completed in 2012 had helped to rejuvenate the plaintiff and improve her function, Dr Todhunter considered that the plaintiff's pain would continue indefinitely, with some prospect of the neuromodulation treatment reducing but not curing her pain;
Ø Dr Todhunter considered the plaintiff to be permanently, partially incapacitated for all employment, adding that, at the time of making his report, she was not fit to work more than eight hours per week reliably or consistently in any occupation.[217]
[217] PCB 77
180 Mr Polke was given a copy of Dr Todhunter's report by the defendants’ solicitors. Without reassessment of the plaintiff, by letter dated 14 August 2012, Mr Polke indicated that his earlier opinion was unaltered. He, nonetheless, also indicated his agreement with Dr Todhunter's opinion that:
Ø the plaintiff probably had an ongoing partial permanent incapacity for employment and was not totally permanently incapacitated for employment for which she is suited by education and past employment experience;
Ø neuromodulation in combination with spinal cord stimulation of the superior gluteal stimulation was a reasonable option in this case. I took this as an indication that Mr Polke accepted Dr Todhunter’s diagnosis, in so far as it also identified central sensitisation as a main contributor to the plaintiff's reported pain levels;
Ø even if the plaintiff's back had not been perfect, any problem with her back had not interfered noticeably with her physical function and she had been able to work up to 38 hours per week prior to her injury in 2007.
181 I note that by letters dated 14 and 16 August 2012, Professor Marshall informed the defendants' solicitors that, having read the reports of Dr Todhunter, Mr Carey (June and August 2012), Mr Grossbard and another specialist whose report was not tendered, the opinion expressed in his report dated 18 May 2012 was unaltered.[218]
[218] Exhibit P2 (DCB 49a)
182 I note further that following re-examination on 15 August 2012, Dr Swift reiterated his earlier advice to the effect that he had found no indication of psychiatric disorder. On this occasion, Dr Swift was provided with a copy of Dr Todhunter's only report,[219] as well as the Occupational Capacity Analysis Report, dated 22 March 2011 (prepared for the defendants by CoWork Pty Ltd).[220]
[219] PCB 73-78
[220] DCB 117-163
183 Having read Dr Todhunter's report, Dr Swift appears to have proceeded on the basis that the pain and disability of which the plaintiff complained was probably due to underlying physical causes, namely aggravation of pre-existing degenerative lumbar spine disease and sensitisation of the central pain pathways.
184 It appears that, having received copies of the reports of Dr Todhunter, Mr Grossbard, Mr Carey (for June and August 2012) and another doctor whose report was not tendered, Mr Simm submitted a further report dated 21 August 2012 to the defendants' solicitors.[221]
[221] DCB 67a-b
185 In this report, Mr Simm provided a short summary of the findings of each specialist. Notably, he rejected Dr Todhunter's opinion that there were neuro-physiological changes in the plaintiff's spinal cord. This was not, it seems, because Mr Simm rejected the possibility of there being a differential diagnosis of central sensitisation, but because he believed that Dr Todhunter had referred to documentation of these changes, without also explaining how these changes had been documented in the plaintiff's case.
186 With respect to Mr Simm, I was not satisfied that this criticism was well placed. Dr Todhunter's report does not at any stage indicate that the neuro-physiological changes he believed had occurred in the plaintiff's spinal cord had been documented. Rather, his opinion appeared to be based on the plaintiff’s extensive history of lower back pain and treatment, the pain management specialist's understanding of the radiology, his clinical findings and, no doubt, the material relating to the plaintiff's assessment and participation in the pain management program during June/July 2012.
187 What is plain from Mr Simm's report is that, even though he had advocated psychiatric assessment and assessment by a specialist in pain management (presumably partly as one means of identifying any contributing psychological factors), Mr Simm went further than Mr Carey’s diagnosis in expressing his view that the disabling pain affecting the lower back and right leg was primarily the result of a functional overlay.
188 Re-examination by Mr Simm of the plaintiff on 2 July 2013 did not alter Mr Simm’s diagnosis, namely an exacerbation of a long-standing chronic spinal pain syndrome.[222] However, on this occasion Mr Simm:
[222] DCB 67c-g
Ø reported finding "less evidence" of non-organic signs of chronic pain;
Ø again acknowledged that some degenerative changes on the MRI scan had the potential to cause pain but not, he said, to the level and extent claimed;
Ø indicated that in his opinion the plaintiff's chronic spinal pain syndrome had been triggered by a work-related strain injury (the fourth back injury), the physical effects of which he believed had resolved and were not responsible for the current level of pain and disability. These symptoms, he said had probably been generated, perpetuated and amplified by non-organic and/or psychological factors;
Ø confirmed that the plaintiff presented as a genuine person who seemed to him to be disabled by her non-organic condition ("she did not present overt pain behaviour"). [223]
[223] DCB 67e
189 If one accepts Mr Simm's evidence, the primary incapacity for work is likely due to psychological factors.
The nature of the injury suffered
190 As my discussion of the evidence has demonstrated, this is a complex case. However, none of the doctors have questioned the plaintiff's genuineness. The plaintiff presented as a credible witness, despite her tendency, on occasion, to minimise the extent to which her lower back had been symptomatic in the years preceding the fourth back injury.
191 Based on the evidence discussed above, I find as follows:
Ø the plaintiff has a history of earlier work-related back injury;
Ø there was evidence of pre-existing degenerative changes in the lumbar spine and, in 1998, a diagnosis of diffuse pain syndrome, for which her treating surgeon was unable to identify a precise cause;
Ø in the circumstances described, I have accepted the plaintiff's unchallenged evidence to the effect that, following each of the earlier back injuries, she had returned to employment and was rehabilitated to the extent that she had been able to return to a physically demanding pastime, namely dancing rock 'n' roll with her husband on weekends;
Ø having returned to work following the third back injury and over the period prior to the fourth back injury, the plaintiff experienced intermittent lower back pain, which she managed mostly with sleeping and/or antispasmodic medication prescribed from time to time by her general practitioner. This evidence of intermittent lower back pain, whether attributable to degenerative changes and/or a pain syndrome, indicates the likely extent of any impairment of function of the plaintiff lower spine before the fourth back injury. On any view of the evidence, there is a significant disparity between the extent of any impairment of spinal function before and since the fourth back injury;
Ø the evidence of Mr Miller and Mr Grossbard was of less assistance than it might otherwise have been in determining the extent of the impairment of the plaintiff’s lower back prior to the fourth back injury;
Ø radiological evidence obtained in December 2001 and October 2007 confirmed probable pre-existing degenerative changes affecting three levels of the plaintiff's lower spine, L3/4 to L5/S1 when the plaintiff suffered the further work-related injury to her lower back on or about 21 May 2007;
Ø the fourth back injury likely involved aggravation of degenerative disc disease in the plaintiff's lower spine. Doctors representing both sides appear to have accepted that this was the case, although Mr Carey and Mr Simm believe that the symptoms and the severity of the pain currently impairing the lower back and right leg function cannot be explained by reference to any revealed pathology, particularly that shown on repeat MRI investigations. Clinical evidence of non-organic factors, no doubt contributed to the diagnosis of diffuse chronic spinal pain syndrome;
Ø based on their (in some cases multiple) reports, I was satisfied, however, that each of the other specialists had identified a substantial organic basis for the pain and suffering and economic loss consequences of which the plaintiff complained. The evidence of the orthopaedic surgeons, Mr Polke, Professor Marshall, Mr Miller and Mr Grossbard support a finding that the plaintiff probably remained disabled by the unresolved effects of the work-related aggravation injury. Notably, when directed to Dr Todhunter’s report, while maintaining their earlier positions, Mr Polke effectively agreed with Dr Todhunter’s opinion that injury-related central sensitisation was a cause of ongoing pain and symptoms in the lower back and right leg, whereas Professor Marshall, whilst clearly of the view that there was radiological evidence that helped explained the plaintiff’s symptoms, did not reject the suggestion that central sensitisation was a contributing cause. Dr Todhunter’s evidence (not challenged by cross-examination) and the evidence of orthopaedic surgeon, Dr Brighton-Knight and pain management specialist, Dr Lim pointed to the presence of this neuro-physiological condition. Central sensitisation may explain the earlier diagnosis of diffuse pain syndrome some years prior to the fourth back injury. In either circumstance, this condition was exacerbated or triggered by the further lower back injury, it was organic in origin and while neuromodulation treatment could lead to a reduction in pain, it is not considered a cure;
Ø based on my acceptance that there is evidence of substantial organic cause for the plaintiff's complaints of pain and disability, the most recent of the medical opinions submitted by Mr Polke, Professor Marshall, Mr Miller, Mr Grossbard and Dr Todhunter supports a further finding that the plaintiff will likely remain afflicted by symptoms of significant lower back and right leg pain for the foreseeable future and she is probably permanently unfit for her pre-injury duties.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
192 I have already set out the statutory requirements for establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised in suitable employment, would result in her earning $573 gross per week or $29,838.60 gross per annum or more.
193 As previously mentioned, the plaintiff was also required to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.
194 The plaintiff deposed that she had intended to work until 67 years of age.[224] She is now 61 years of age and believes that ongoing back and leg pain permanently preclude a return to the workforce. Notwithstanding her claimed total incapacity, it was submitted that any residual earning capacity exercised by the plaintiff in suitable employment would not produce more than 60% of the without-injury earnings.
[224] PCB 18.4
The vocational evidence
195 As mentioned in passing, the defendants tendered a 130 Week Vocational Assessment Report prepared following assessment on 16 June 2009 and an Occupational Capacity Analysis Report prepared by CoWork and dated 22 March 2011.
196 The vocational assessment report was prepared in the months preceding the plaintiff's cessation of her employment with the first defendant due to work-related back pain. At the time, the plaintiff was still certified as only fit to perform modified duties. By then the plaintiff had built up the hours worked since returning to work. According to the report, she was working 21 hours per fortnight on 3.5 hour shifts.
197 The plaintiff was not interviewed by the occupational therapist, who prepared the CoWork report. The most recent of the materials to which she had regard included, reports made by Dr Sanders, the last of which was dated 30 December 2009 and certified the plaintiff as unfit for all work ("at the moment"[225]), the 130 Week Vocational Assessment Report, which acknowledged that, when made, the plaintiff had not yet been certified as fit to return to full-time duties and Mr Simm's report, dated 29 June 2010, in which he deemed the plaintiff capable of performing her pre-injury employment, although he advocated suitable alternative employment in duties that did not involve physically assisting or lifting clients.
[225] PCB 59
198 The occupational therapist appears to have proceeded on the basis that the plaintiff was not fit to return to her pre-injury duties as an attendant carer. In March 2011 she recommended that full-time work as a community worker, administrative assistant or pathology collector (as, for example, in a clinic) were suitable employment options for the plaintiff. The first two positions evidently did not require training whereas, despite the plaintiff's work as a pathology collector many years earlier, the pathology collector position required a Certificate III in pathology collection. In March 2011, the average gross weekly earnings for these positions were $907.55, $847.31 and $718.20 per week respectively.
199 As we now know, in his report, dated 17 May 2012, Mr Simm advised the defendants that he had not been able to identify any physical cause preventing the plaintiff from undertaking any of the positions nominated by CoWork on a full-time basis.[226]
[226] DCB 65
200 Neither of the defendants' reports take into account up-to-date medical evidence. On the basis of this recent evidence, the plaintiff is permanently unfit for her pre-injury employment and, in view of ongoing restrictions imposed on her physical activities, any partial capacity for employment, if exercised would involve sedentary and/or light duties occupations.
201 The plaintiff satisfied me that she does not have a physical capacity for suitable employment which, if exercised, would result in her earning more than 60% of her pre-injury earnings.
202 A number of the doctors concluded that the plaintiff was permanently and partially incapacitated for all employment. In 2009, Professor Marshall said the plaintiff was unlikely to increase her hours beyond the 12 hours per week she was then working. In 2012, without specifying the number of hours he thought she might work, Mr Grossbard indicated a likely permanent partial incapacity for all employment, whereas, Dr Todhunter, with whom Mr Polke agreed, indicated that the plaintiff’s physical capacity for work did not exceed 8 hours per week.
203 Again, in August 2012, the treating general practitioner, Dr Sanders, suggested a long-term work capacity for light duties only, not exceeding 12 to 15 hours per week.[227] Nevertheless, by May 2013, Dr Sanders was no longer confident that the plaintiff could return to even part-time alternative duties because the symptoms of her injury were unpredictable and apt to flare up at any time.[228]
[227] PCB 72.2
[228] PCB 72.1
204 The issue of the plaintiff's ability to reliably attend for work on a regular basis was central to the plaintiff's claimed total incapacity for all employment. The difficulties encountered by the plaintiff during the period over which she performed modified duties for the first defendant indicate an underlying unreliability as an employee due to flare ups in back and leg pain from time to time.
205 Both in her affidavit and oral evidence[229], the plaintiff emphasised her unreliability as a potential employee ("… sometimes I can't even get out of bed – sometimes I can't even drive a car and I don't know as to how long – I can go two days – I can go ten days, so would you employ me?… I would see myself as a very unreliable staff member"[230]).
[229] PCB 18.4 and TN 86
[230] TN 86
206 In my view, on balance, the plaintiff has established a permanent loss of earning capacity productive of a financial loss of 40% or more because any retained capacity and/or her unreliability as an employee in undertaking employment probably would not take her over the statutory threshold for the foreseeable future.
207 The plaintiff’s background, experience in the workforce and some of the medical evidence suggest that her condition would not necessarily prevent further occupational rehabilitation or retraining for alternative employment. However, on the evidence summarised, the plaintiff satisfied me that, for the foreseeable future, any rehabilitation or retraining was unlikely to improve her physical capacity for or increase her reliability in any employment to which she may be otherwise suited in accordance with the definition contained in section 5 of the Act.
208 Accordingly, by applying the test under the Act, due to likely permanent work-related impairment of the plaintiff's lower spine:
Ø the plaintiff has established a loss of earning capacity of 40% or more which is likely to continue permanently;
Ø the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of body function, her loss of earning capacity (whether partial or total) is fairly described as more than significant or marked, and as being at least very considerable. In reaching this conclusion, I have relied on loss of earning capacity attributable to likely additional impairment resulting from the fourth back injury.
209 As the plaintiff is entitled to leave in respect of loss of earning capacity consequences to which the impairment of her lower back continues to make a material contribution, I do not need to separately determine the pain and suffering component of this application.
210 I propose to make an order granting leave to the plaintiff to commence proceedings against the defendants in respect of pain and suffering and loss of earning capacity damages.
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