Berry, Joanne May v Ballarat Health Services and VWA
[2009] VCC 1786
•3 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES/COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01049
| JOANNE MAY BERRY | Plaintiff |
| v | |
| BALLARAT HEALTH SERVICES | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 19 October 2009 |
| DATE OF JUDGMENT: | 3 December 2009 |
| CASE MAY BE CITED AS: | Berry, Joanne May v Ballarat Health Services & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1786 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134 AB serious injury – effect of aggravation of underlying condition- application in respect of pain and suffering consequences.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with | Saines & Partners Pty Ltd |
| Mr M A Nightingale | ||
| For the Defendants | Mr P D Elliott QC with | Herbert Geer Lawyers |
| Mr I S Gourlay | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages in respect of the pain and suffering consequences of an injury occasioned to her low-back in the course of her employment with the defendant as a nurse (“the injury”) which arose by reason of a work process in which the plaintiff was required to perform heavy manual duties without adequate assistance over a period of time in October 2005 (“the work process”).
2 The injury involves the aggravation of a pre-existing condition in the plaintiff’s lumbar spine. In these circumstances in order to make findings as to the consequences of any impairment associated with the injury I must contrast the consequences of any impairment associated with the plaintiff’s pre-existing condition with that which is now present and was caused by the injury.
3 The history relevant to the plaintiff’s pre-existing back condition may be summarised as follows:
•
The plaintiff qualified as a Registered Nurse Division 2 in 1981. In the early 1980s, the plaintiff developed symptoms of back pain in respect of which she consulted a general practitioner and was subsequently referred for treatment, initially to Mr Ronald Beetham an orthopaedic surgeon, and thereafter to Mr John Bourke, an orthopaedic surgeon.
•
In a report dated 8 May 1985, Mr Bourke commented that the plaintiff’s symptoms of lower back pain first manifested themselves in 1981. By 1984 they were such that the plaintiff required facet joint injections at the two lower levels of her lumbar spine and a lumbar epidural injection. In the course of his report of 8 May 1985, Mr Bourke opined that the plaintiff’s symptoms were discogenic in nature, emanating from the L5-S1 level, and were such that in the future she should look for lighter work. Mr Bourke concluded his report, expressing the following opinion:
“Obviously as a result of these injuries she will be more vulnerable to re-injury in the future. She has been advised to lose weight and continue with the exercise program and be careful in relation to the posture of her back.”
• In a further report dated 1 May 1996, Mr Bourke opined as to the plaintiff: “Her future employability is in the field of lighter work which does not involve heavy lifting or repeated bending or stooping movements of the lumbar spine.”
• Having regard to the condition of her back and the problems she was experiencing in aggravating her condition in the course of her employment, the plaintiff was required to abandon her practice as a nurse in the mid-1980s. For some ten years the plaintiff undertook a variety of jobs. She performed some receptionist duties on a casual basis at the Hall’s Gap Colonial Motor Inn and worked in a bakery. She also worked in a food processing plant. She gave birth to two children, the first of whom was born in 1989 and the second in February 1996. • Between 1985 and 1986, the plaintiff occasionally suffered from symptoms of back pain, particularly during her pregnancies. She avoided heavy lifting and managed her back condition with treatment via a chiropractor and the use of some medication in the form of the occasional use of Panadeine Forte, Panadol and Naprosan. The plaintiff’s evidence with respect to the use of this medication was that she employed the use of medication when she suffered an exacerbation of her symptoms. There is no suggestion in the evidence, however, that the plaintiff’s back pain was such that it interfered to any significant extent in her ability to engage in the activities of normal life other than in the manner which I have previously described. 4 In 1996, the plaintiff decided to attempt to resume her career as a nurse. She completed a Nursing Division 2 refresher course and in 1997 obtained part- time casual employment with the first defendant. From 1999 the plaintiff was employed on a permanent basis by the first defendant.
5 Between commencing employment with the first defendant in 1997 and the incident the subject of this application which occurred over a short period ending early in October 2005, the plaintiff was able to manage the duties required of her in the course of her employment with the first defendant without suffering an exacerbation of her underlying back condition such that she required medical treatment or recourse to prescription medication.
6 The plaintiff’s duties involved her in working 24 hours a week at a nursing home which provided high-care for aged persons. Those duties included showering, dressing, feeding and transferring patients, lifting patients using hoists, turning patients when changing bed linen and moving patients in wheelchairs. The plaintiff described the work as often being heavy and as requiring the full use of her back. Although she suffered some symptoms of pain in the area of her thoracic spine in the course of performing these duties it is the plaintiff’s evidence, which is not the subject of challenge, that she suffered no significant low-back symptoms until those which arose by reason of the employment activity the subject of this application. In my opinion, this provides a sound basis upon which to assess the consequences to the plaintiff of her low-back condition during the eight-year period between the time at which she commenced her employment with the first defendant and October 2005.
7 I am satisfied that during this period, whilst the plaintiff may have suffered from intermittent symptoms of low-back pain, the condition of her back was such that she was able to discharge the duties to which I have previously referred without difficulty and as such that, whilst her back pain caused her to take care as to the activities in which she was engaged, she was able to undertake a broad range of activity both in her workplace and in her life outside her workplace which is appropriately described as being generally of moderate physical intensity[1] without exacerbating the condition in her lumbar spine to any significant degree.
[1] although at some times the plaintiff’s work did involve heavy physical activity – Plaintiff’s Court Book (“PCB”) 14 - paragraph 6
The Effect of the Work Process
8 A comparison between the plaintiff’s medical history in the eight years before the injury sustained by her in the course of the work process, and that during the period from that time to the present date, presents a stark contrast as to her recourse to medical treatment for low back symptoms.
9 Whilst the plaintiff’s medical records reveal that in late 1995 and early 1996 she was suffering from back pain which required the use of Panadeine Forte, Naprosan and Zantac, thereafter her medical records do not reveal any attendances upon her general practitioner with symptoms of low-back pain or the need to resort to prescription level pain control with respect to low-back pain. This history is to be contrasted with the plaintiff’s history from October 2005 onwards, which has involved regular attendances upon her general practitioner with symptoms of back pain and the ongoing use of prescription strength pain control in the form of Digesic, Ducene and on occasion Tramadol.
10 I am of the opinion that a reliable indicator of the severity of the plaintiff’s low back pain which was initiated by the work process, is the fact that since October 1985 the plaintiff has been required to make use of the regime of pain killing medication to which I have referred notwithstanding the fact that she has since that date, abandoned her vocation as a nurse and taken up employment in light administrative type work.
The Effect of the Aggravation of the Plaintiff’s Underlying Condition by the
Work Process11 In my opinion, the doctors who are in the best position to assess the effect of of the work process in aggravating the plaintiff’s underlying condition are her general practitioner Dr Carter and Mr John Bourke.[2]
[2] Dr Kevin Carter has treated the plaintiff on a regular basis since 2006. Before 2006 he had access to the medical records of his partner, Dr Robert Karmouche, who had managed the plaintiff’s condition since 2002 and her records of Dr Fraelon, who had managed the plaintiff’s condition prior to that time. Mr Bourke was the plaintiff’s treating orthopaedic surgeon during the 1980s.
12 In the course of viva voce evidence before me Mr Bourke opined as to the effect of the work process in aggravating the plaintiff’s underlying condition:
“Using the term ‘aggravation’ meaning a permanent worsening of the underlying condition, it means that the incident in October 2005 has done that.”
13 Upon the same topic, Dr Carter commented:
“So she worked for eight years. I think nursing practices have changed in the last twenty years as well, I know there’s a lot more lifting machines and there’s a ‘no lift’ policy and so forth in place, particularly in the last number of years, but nevertheless it is still reasonably heavier work than administrative type duties. So there was a risk, but nevertheless she was there for eight years, she enjoyed nursing. Even though there are some changes in the spine, they’re not – they’re not – you know she hasn’t got multiple disc injuries or anything like that. She’s got degenerative disease which is a, you know, slow process that develops over a period of years but now she has reached a critical level which appeared to occur in, you know, as the result of her shift in October 2005 so that’s my interpretation of the whole event.”
14 Having regard to the evidence of Dr Carter and Mr Bourke, no issue arises in this case as to the responsibility of the work process in aggravating the plaintiff’s underlying low back condition, and I was addressed by Mr Elliott QC, who appeared on behalf of the defendants, solely upon the issue as to whether or not the effect of the exacerbation of the plaintiff’s pre-existing condition by the work process was such that it constituted a “serious injury” within the definition of that term by the Accident Compensation Act 1985 (“the Act”).
15 The plaintiff’s evidence upon this issue which appears in two affidavits dated 20 October 2008 and 17 November 2009, together with her viva voce evidence which was given in the course of this application, is as follows:
•
Upon her return to nursing in 1997, the plaintiff worked on average a 24- hour shift which involved the activities to which I have previously referred. She said that she loved her work, including her contact with patients and other staff and that she was happy to have returned to her chosen profession.
•
Before the 2005 injury the plaintiff described herself as leading an active and happy lifestyle. Not only had she been able to return to her work as a nurse, she was involved in her husband’s interest in hotrod racing and enjoyed the social activities involved with that sport. She described enjoying dancing, attending the movies and eating out. By reason of the income earned in her work as a nurse she was able to support her husband who returned to school as a mature-aged student and was in the course of completing a degree in Arts Honours. The plaintiff described herself as having a carefree and happy attitude to life and as enjoying her relationship with her daughter, other family members and friends.
•
Since the injury the plaintiff said that she suffered from constant low-back pain which often flared-up. Her pain increased if she sat or stood for long periods of time or if she bent or twisted her back or engaged in heavy or repeated lifting. Her back pain disturbed her sleep. She generally had restless nights waking from back pain on a number of occasions during the night. Whereas before the exacerbation of her symptoms she generally slept eight hours each night, she now averaged only five hours of sleep per night. She said that since her injury she usually felt tired and lacking in energy.
•
The plaintiff described the effect of her back injury as restricting her ability to do things around the home, such that she expected her family members to “do everything”. She described the injury as being responsible for a number of temporary separations between herself and her husband and as having strained the relationship between herself and her daughters on an ongoing basis. She described a loss of self- confidence, a restriction in her ability to support her family and to do housework. She said that she was nowhere as active as she had been before the injury.
•
The plaintiff said that she was required to make use of medication in the form of Valium, Panadol, Nurofen or Nurofen Plus daily. Further, it is clear that Dr Carter continues to prescribe medication in the form of Ducene and Tramadol which the plaintiff attempts to use only on an intermittent basis when she is having bad days.[3]
•
The plaintiff described one of the most significant effects of her back condition as being the fact that she has had to give up her vocation as a nurse. She said that notwithstanding the advice she had been given in the 1980s that she should give up nursing, she was determined to return to that profession. She described her work with the first defendant prior to the 2005 injury as involving:
[3] T 86
“nursing, which is what I loved”.
She said:
“To have lost my last opportunity to nurse is a great blow to me and it has left an enormous hole in my life. I had been able to do this work for eight years and had it not been for the lack of assistance provided to me by my employer, Ballarat Health Services, because they were short staffed, I would still be working as a nurse and would have had the future as a nurse to look forward to.”
She described her present employment in the following terms:
“I am still in employment with the Ballarat Health Services working 48 hours per fortnight as a patient flow clerk. I obtained this job and I am grateful my employer continues to provide me with this work but it is a very poor substitute for the work I loved.”
16 The evidence given by the plaintiff as to the effect of the work process upon her level of symptomology and disability was not the subject of real challenge by the defendants.
17 The defendants rely upon a number of medical reports. I consider that the only report relevant to the issues which I am required to consider, namely the present consequences of the injury upon the plaintiff’s level of pain and suffering and enjoyment of life, to be that of Mr Michael Polke, orthopaedic surgeon, dated 30 June 2009.[4]
[4] The report of Dr Andrew Miller dated 11 January 2008 essentially involves the undertaking of a whole person assessment
18 Whilst in that report Mr Polke comments:
“It appears that her injuries no longer affect the worker’s enjoyment of life and daily activities, except for the fact that she would be unsuitable to return to her heavier nursing activities.”
and further:
“She suffers from occasional back pain but has adjusted to her new role
which she enjoys, particularly being able to work with other people.”
It was not suggested that the plaintiff’s evidence was unreliable or that she had in any way misrepresented the effect of the injury upon her life or lifestyle. Insofar as the opinion of Mr Polke as to the effect of the aggravation of plaintiff’s back condition is at odds with the evidence given by the plaintiff in this application, I accept the plaintiff’s evidence, particularly having regard to the fact that the comments made by Mr Polke were not put to her.
19 In my opinion, the fact that the plaintiff has been required to give up the practice of her vocation as a nurse is of considerable significance in this application. The importance of the plaintiff’s profession to her is demonstrated by the fact that, notwithstanding that she was advised in her early twenties that to continue in her employment as a nurse would expose her to the possibility of aggravating or exacerbating her underlying condition, the plaintiff nonetheless returned to that work motivated by her love of the duties involved in her profession.
20 In these circumstances, the fact that the exacerbation of her pre-existing condition has denied the plaintiff the ability to continue in her vocation as a nurse, in my opinion constitutes a very significant adverse impact upon her life and lifestyle. When this impact is considered in the context of the plaintiff’s evidence which satisfies me that from the relatively young age of 43 her constant back pain has:
• required her to make use of significant levels of prescription pain control; • adversely affected her day to day life by restricting her ability to sleep; • adversely impacted upon her relationship with her husband and family, • restricted her ability to undertake housework and generally to engage in physical activity as detailed in her evidence; I am satisfied that it is appropriate to describe the pain and suffering consequences of the plaintiff’s impairment of the function of her low-back as being more than significant or marked and as being at least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function.
21 In the circumstances, I am satisfied that the plaintiff is entitled to an order granting her leave to commence proceedings claiming pain and suffering damages by reason of the inappropriate work processes to which she alleges she was exposed which gave rise to the aggravation of the condition of her lumbar spine in October 2005.
22 I will hear the parties as to the precise form of the orders sought and also on the issue of costs.
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