Billings v Spotless Services Australia Limited and Allianz
[2009] VCC 531
•15 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-02971
| DAWN MARGARET BILLINGS | Plaintiff |
| v | |
| SPOTLESS SERVICES AUSTRALIA LIMITED | First Defendant |
| and | |
| ALLIANZ WORKERS COMPENSATION (VIC) LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE CAMPBELL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 18th and 19th March 2009 |
| DATE OF JUDGMENT: | 15 May 2009 |
| CASE MAY BE CITED AS: | Billings v Spotless Services Australia Limited & Allianz Workers Compensation (Vic) Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0531 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – serious injury application – injury to low-back – previous back injuries.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC with | Stringer Clark |
| Mr N Bird | ||
| For the Defendants | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens | ||
| HIS HONOUR: |
1 This is an application for leave to bring a proceeding for the recovery of damages in respect of injury pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”). It is brought by Originating Motion which was presumably e-filed, as the copy in the Court Book contains no date.
2 The claim is brought under sub-paragraph (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. The claim is now made only for pain and suffering damages.
3 The parts of the body identified in a document titled “Particulars of Injury” dated the 27th January 2009 filed on behalf of the plaintiff as being the injuries relied upon in this application were:
• injury to right shoulder • injury to lumbar spine • damage to the musculoligamentous structure of the lumbar spine • damage to the L5-S1 disc, including prolapse. 4 The claim in respect to the right shoulder was not pursued before me. In essence, it is the low lumbar spine and the alleged injuries thereto that is the body function for which it is contended there is a permanent serious impairment or loss of function.
5 In support of the application, the plaintiff swore affidavits on the 14th March 2008 and the 23rd February 2009.
6 The plaintiff also relied upon medical reports and radiological reports, the titles of which are set forth in the Index to the Plaintiff’s Court Book (“PCB”). The plaintiff also relied upon some reports obtained on behalf of the defendants. Ultimately, although it came at the end of the case, the defendants tendered a report obtained by the plaintiff’s solicitors from Mr David Brownbill, consultant neurosurgeon, and dated the 24th October 2006.
7 The defendants relied upon documents set out in the Index to their Court Book, including the plaintiff’s Claim Form in respect of the incident alleged to give rise to her impairment, and dated the 18th November 2003, medical and radiological reports as listed, and a summary of taxation returns for the years 2000 to 2006. The defendants also relied upon the report of Mr Brownbill, a copy of an award made under the Worker’ Compensation Act 1958 on the 1st July 1980 in a matter between the plaintiff and F.J. Trousers Pty Ltd, and films taken under covert surveillance of the plaintiff in October and November 2007.
8 The plaintiff was the only person required by the defendants for cross- examination. She was cross-examined at some length before me on the contents of her affidavits and the medical materials.
9 I have read all of the materials, including the transcript of proceedings and addresses of counsel. If I do not mention all of the medical reports or those from physiotherapists, I emphasise that I have taken them all into account.
10 I am obliged to determine this matter bearing in mind the definition of “serious injury” in s.134AB(37) of the Act and to direct myself in accordance with the deliberations of the Court of Appeal in the group of four cases commonly known as “Barwon Spinners Pty Ltd & Ors v Podolak” (2005) 14 VR 622.
11 I am also conscious of the decisions in Mobilio v Balliotis (1998) 3 VR 833; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Church v Echuca Regional Health [2008] VSCA 153; and Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167. This case also raises questions with regard to the decision in Petkovski v Galletti (1994) 1 VR 436, with which I am familiar.
12 The plaintiff is now aged sixty years, having been born on the 18th February 1949. She is a widow, living on her own, and has three adult, independent children and a number of grandchildren.
13 Her education was completed in Year 11 and thereafter she has worked consistently over the years save, I imagine, for periods when she was raising children. I shall need to return to her employment at a later point.
14 The plaintiff commenced employment with the first defendant in March 2002. She was employed as a casual kitchen hand at the Deakin University cafeteria operated by the first defendant. She worked three or four shifts a week and I think in total about 24 hours per week at this point. Her job involved food preparation and the sale of food from the cafeteria area.
15 The incident out of which this action springs occurred on the 11th March 2003. The plaintiff had arrived at work at 8.00 am and commenced her duties. At about 8.30 am, her supervisor asked her to make him a cup of coffee. She walked around the kitchen and serving area to undertake this task and in so doing slipped and fell on water which was on the floor of the serving area. She had not noticed the water she said because the lights were not on in that area and the linoleum floor was quite dark.
16 It seems that the water came from a leaking refrigerator.
17 The plaintiff fell and says that she landed on her buttocks and that she also put her right hand out to break her fall. She landed heavily and on the hand as well. She had a rest for a few minutes because she felt quite shocked and jarred by that fall. She swore that she was able to keep going with her work but that her lower back and right shoulder were painful.
18 At some point in her evidence she said that she was given two tablets by a workmate and she continued on. She thought that she had just sprained her back and shoulder and that the symptoms would settle, but they did not.
19 The plaintiff kept working for the next two weeks and then attended her doctor on the 24th March 2003.
20 The doctor whom she attended was one of a number who constitute what is called the Warrnambool Medical Clinic – Dr Philpot in this instance.
21 The clinical notes made by Dr Philpot on the 24th March 2003 are in evidence, although he did not swear an affidavit nor was he sought to be called as a witness. The reason in part no doubt is because the care of the plaintiff appears to have finally ended up with Dr Cimpoesu.
22 It is appropriate at this point that I recite those cryptic notes made by Dr Philpot, and where I can, enlarge upon the abbreviations contained therein.
23 Those notes read:
“2 weeks ago fall at work. Right buttock pain for one hour or so.
Slipped on wet floor at Deakin café.
21 March pain was niggly, going down right thigh.
Niggly over weekend.
Went to work today. Worse.
W Care [I take this to be WorkCare].
Flexion reaches tibial tubercles.
Pain on left lateral flexion. Not on right lateral flexion.
Tender over right. SI JT area. Complain of pain down back right thigh to below knee.
SLR 90 left. 60 right. 90 with passive movement although painful.
Reflexes OK. No back problems for 2 years until now.”
24 There then follows in those notes a record that prescriptions were printed for Panadeine Forte and Normison tablets.
25 The plaintiff said that she had approximately five or six days off work, although, as is seen, Dr Philpot’s notes do not chronicle that.
26 The plaintiff also said that she was thereafter having physiotherapy and taking the medication, but the problems were not going away.
27 Thereafter, the plaintiff said that she worked until the end of September 2003 and was able to do so because she was careful and given assistance to do heavier activities.
28 The plaintiff stopped work with the first defendant at the end of September 2003 because there would be no more work for her, being a casual employee, until the following year. She obtained, I think, almost immediately a job in a clothing store, in which she had worked previously, and before her employment by the first defendant.
29 The plaintiff’s work at this store started with 24 hours per week and worked up to 32 hours per week. She continued here until August 2005 when she decided to seek other employment. This was apparently because the requirement to wear high-heeled shoes exacerbated her back pain.
30 Accordingly, she got a job at what was known as the Warrnambool Co-Op, working in a menswear department. She started this job in September 2005 on a full-time basis, working 38 hours per week, and continued to do so until the 29th December 2007. This period was interspersed, she says, by episodes when her back was “just too bad to go to work”. This included apparently a three-month period between November 2006 and February 2007. She complains that even on return she was struggling to continue with restricted duties despite the assistance that she was afforded by other staff members.
31 That period of three months off, she said, was brought about by waking up with a nagging pain in her right leg and down her lower right back. Consultations with her doctor resulted in her being put off initially for two weeks and then for the three months to which I have referred. During this time she had physiotherapy and painkillers.
32 In her first affidavit she claims that she was able to continue full-time at the Warrnambool Co-Op only because of the goodwill of the management and her fellow workers.
33 The plaintiff has over the years, as will be seen, also used a back brace from time to time to assist her cope with her disability, she claims. This she wore to work, it seems, on many occasions. Nevertheless, she claims that she was “really struggling” towards the end of 2007 when it was learned that the Co-Op was about to close down. She decided to stay on so as to retain such entitlements as she had earned when that event occurred.
34 At the time that the plaintiff swore her first affidavit, namely the 14th March 2008, she then had been out of work for some three months. She described her low-back pain as being 24-hours a day, seven days a week and constant, with daily aggravations.
35 She set out at very great length in that affidavit activities which she says were either restricted or no longer available to her because of that pain and inhibition.
36 Thus, and I do not propose to detail the minutiae of those complaints, but they cover at least the following:
•
Her sleep is badly affected and she requires to take Nurofen Plus and occasionally Normison sleeping tablets.
•
Her driving is affected – after 45 minutes she will be in extreme pain and has difficulty getting in and out of the car.
• A friend has to drive her from Terang to Melbourne if she is to visit the city. • She is unable to go line dancing which was a particular interest of hers. •
She is unable to enjoy watching sport or play tennis or coach netball. She claims that her pain is aggravated, particularly if she is sitting in the car to watch.
•
As a former passionate gardener, she says that she can only now kneel and pull a few weeds, which is the most she can do without causing too much pain.
•
She used to go for a 5 to 10-kilometre walk each day before this injury but can now only walk not exceeding 1 kilometre.
•
She does light house duties but a daughter assists with vacuuming and washing of floors and windows and other household tasks.
•
She does not like having to wear the brace (I was never quite sure quite what the brace did for her). However, since she swore that affidavit she seems to have overcome this problem by wearing some form of tight-fitting girdle.
37 The plaintiff said in that affidavit that nevertheless she was very keen to get a new job, preferably some light, part-time work.
38 As it transpires, the plaintiff’s enthusiasm for work was rewarded. On the 26th March 2008, she obtained employment with R M Williams, a store in Warrnambool. I note that that was just over a fortnight following the swearing of her first affidavit.
39 Now she works 24 hours per week, having declined to work full-time she said in her evidence before me.
40 In her second affidavit sworn the 23rd February 2009, she swore that there was very little change in the condition set out in her previous affidavit and that at the end of her shift, which is normally half a day, she had “had it”. She went home and claimed to be not capable of doing anything much other than making a simple tea and going to bed by 8.30 pm.
41 She described her pain level at the end of the week as “8 or 9 out of 10”. I note in parenthesis to that assertion that she told Mr Radley, a psychologist who provided a vocational assessment report to the plaintiff’s solicitors, that the average intensity of her overall pain (which includes, she says, severe periodic pain in her right shoulder and upper arm) that the scale on a 0 to 5 basis was 4, at worst 5, and at best 3. In another report obtained for the plaintiff’s solicitors from Corio Bay Sports Treatment Centre and dated the 15th November 2007, she asserted the same levels of pain as in her affidavit, although the author notes that the 10 out of 10 did not require an ambulance. This was related to right-sided lower back pain radiating into her right buttock and down her right thigh posteriorly to the knee.
42 Otherwise her second affidavit tended to confirm the complaints in her first affidavit.
43 Central to the defendants’ defence to this application is the plaintiff’s previous medical history concerning her lower back.
44 In her first affidavit, the plaintiff deposed to two previous episodes where she had suffered some injury to her back.
45 The first of those, she said, was whilst working for Fletcher Jones in approximately 1973. Other material confirms that this in fact was 1977. In her affidavit she said merely that she had injured her back whilst working for Fletcher Jones, had some treatment, and made a substantial recovery from this incident. She said that she was, after recovery, able to do quite heavy work in a range of jobs before going to the first named defendant.
46 It was in this affidavit that she deposed in paragraph 14 to that incident and said that she had had previous episodes of back and right shoulder pain in the past, and over the years on occasions used a back brace. I pause to say that there is no evidence as to who prescribed that brace, if it was a medical practitioner, or what it was meant to do.
47 The plaintiff also deposed to the fact in her first affidavit that she felt as if she had “pulled a back muscle while throwing some tree limbs into a trailer” in around the year 2000. She said that she saw Dr Page – from the Warrnambool Medical Clinic – and had some physiotherapy. She said that that was all she could recall about this incident and her back settled down well, although she had some problems over the ensuing ten months or so and recalled being x-rayed. Nevertheless, she said that she went back to her previous activities.
48 She was cross-examined at length about the 1977 incident at Fletcher Jones. In this regard, I can readily understand that recalling incidents some thirty years ago presents some difficulty for most people, and so it was with the plaintiff. However, it was shown that as a result of a claim made in respect of this incident at Fletcher Jones on her behalf, she received an award of $25,000 in respect to what was then described under worker’s compensation practice as “all claims or injuries past and future”. This award was made on the 1st July 1980.
49 As I say, I can sympathise with a failure to recollect details of an incident thirty years ago, but I do have some difficulty in that regard where a then not insubstantial amount of money was received by the plaintiff.
50 Nevertheless, there were no medical records apparently available in this regard, and as I have said, I have no explanation of the need or reason for the back brace.
51 The second incident in, she said, “about 2000”, seems to have been of sufficient moment to cause the aforementioned Dr Page to order a CT scan of her lumbosacral spine. This investigation was carried out on the 31st October
52 The findings of this scan are relevant. The report from the radiologist reads as follows:
“The alignment in the lumbar column is within normal limits. The vertebral bodies appear normal in height. Well marked degenerative disc disease with quite severe narrowing is evident at L5-S1 level and there is perhaps mild early narrowing developing at L3-4 and L4-5. Antero-lateral osteophyte formation is evident at all of these sites. There is also an impression for probable degenerative disease in the facet joints at L5-S1. The sacroiliac joints appear normal.”
53 The reason for Dr Page’s request for that scan can be drawn from clinical notes obtained by subpoena and which were put to the plaintiff in cross- examination. These notes, of course, are from the Warrnambool Medical Clinic.
54 Thus, the notes record that on the 15th September 2000, an entry of Dr Page that says, inter alia:
“Back pain ++ related to being on feet a lot. Wearing brace a lot. Dr then
and now has told me to get a medical certificate to get the pension.”
55 The plaintiff’s answers to questions about what she had told the doctor were vague or unresponsive. She purported not to understand why the doctor had written about wearing the brace a lot because she wore it in the garden, she did not understand the entry about being on her feet a lot, and she denied ever talking about a pension. She purported not to understand at first what “back pain ++” meant. She ultimately agreed that in 2000 her back was a problem.
56 An entry in the notes of apparently the 30th October 2000, the day before the CT scan, contained the note:
“Back still trouble. Old problems ++.
SLR 45 degrees on the right”.
57 Apparently the plaintiff was referred for physiotherapy and the x-ray examination.
58 When asked about the extent of her back [problem] sic, in 2000, she said:
“I don’t know, I’m not really sure.”
59 She was then asked about an entry on the 8th December 2000. It was put to the plaintiff that she had complained of severe headache, neck and back ache and that she had been provided with a prescription for some Mersyndol Forte A tablets.
60 Another entry on the 28th June 2001 by Dr Page recorded that the plaintiff was going to travel north for three months – to which the plaintiff agreed that that was the case – and then continued:
“Back has been playing up and regular physio at present. Mid back and right sciatica and some pins and needles in the right leg. Prolonged standing and sitting stirring it up.”
61 Again, the plaintiff seemed to have difficulty understanding the questions put to her about this entry. She said in answer to a question about her having this problem four years after her Fletcher Jones accident, that she “blamed it for when I thought I pulled me muscle in – throwing the rubbish on the trailer”, that is what she described as the “about 2000 incident”.
62 When it was put to her that whatever the reason, in June 2001 she still had problems with her legs, she said that she never thought she had any pain in her leg. She acknowledged that if that is what the doctor had written, then that must be so.
63 She also agreed that as a consequence apparently of this consultation, further prescriptions were provided for an anti-inflammatory and more Normison.
64 She claimed that notwithstanding what had been put to her, that whatever problems she was having, “it never prevented me from doing anything”.
65 I do not propose to reproduce the cross-examination following this part of her history in detail. It is sufficient to say that she ultimately agreed that immediately prior to the accident she did have niggling backache, although not so much pain in her right leg.
66 She ultimately agreed that she was also having intermittent physiotherapy treatment before this accident and before she started with the first defendant and that she was receiving and taking medication in the form of anti- inflammatories (I take it from time to time) up until March 2003 before she had her fall. She agreed that the level of her treatment just prior to the accident and the level of her treatment now in terms of physiotherapy and medication are very similar.
67 In re-examination, Mr Brookes sought to establish from the notes of the Warrnambool Medical Clinic practice that the plaintiff had made no complaint about back pain to any of the members of that practice between the 28th June 2001 consultation and the date of Dr Philpot’s consultation on the 24th March 2003.
68 Thus, in reverse order, he sought to establish that the notes showed that on the 11th November 2002, the 20th May 2002, the 4th October 2001, the 22nd October 2001 and the 16th October 2001, the plaintiff had attended the clinic and had consultations about matters other than that relating t her back, legs or shoulder.
69 To a series of leading questions about those dates, her counsel managed to elicit affirmative answers to questions as to whether she remembered them. I very much doubt that that is the case but it probably does not matter.
70 The difficulty for the Court is that it seems that the plaintiff continued to have prescribed for her anti-inflammatories and sleeping medication which are not reflected in the materials put by counsel to the witness.
71 Certainly in the course of cross-examination, she said that she was taking a non-prescription tablet to ease her pain but in the absence of the tendering of the notes by either counsel, which presumably was deliberate, I cannot resolve this conundrum.
72 This problem is further pointed up by a letter written to the plaintiff’s solicitors on the 11th October 2006 by Dr Michael Page of the Warrnambool Medical Clinic. After noting that Dr Philpot had seen the plaintiff on the 24th March 2003 after her fall, he says that:
“There is no record of my having seen her for that particular
incident/injury at any time.
She presented to me with right hip and right leg pain on 25th October 2004 but there is nothing in my notes to suggest that this pain was related to the injury she had sustained in March the previous year. Our records show that [she] (sic) had been seen on five occasions prior to my consultation on the 25th October 2004 with no relationship to back pain.
I would suggest you contact Dr Philpot upon his return from annual leave. He may be able to provide you with notes relevant to Mrs Billings’ initial injury. He has also been managing her chronic neck and back pain, although I am not sure what this is related to. I note that Dr Cimpoesu has also been treating Mrs Billings.”
73 Dr Philpot apparently did not provide a report to the plaintiff’s solicitors but Dr Cimpoesu, according to the plaintiff’s Court Book, did so on three occasions.
74 The first of those is a letter dated the 25th February 2007. It recites that the plaintiff first presented with regard to these injuries to her on the 10th August 2006. At that time she was complaining of back pain radiating to the right leg, and right shoulder pain exacerbated by a recent trip on a bus. On examination, apparently the plaintiff had upper and lower back tenderness, restricted range of movement, and mild right leg weakness.
75 Dr Cimpoesu, following this consultation, seems to have ordered a plain x-ray of, inter alia, the lumbar spine.
76 A report dated the 14th August 2006 from Western District Radiology reported in this regard:
“The scoliotic curve in the lumbar region is convex to the left and maximum in the lower lumbar area. Vertebral bodies and disc spaces appear normal. Sacrum and sacroiliac joints are within normal limits. No definite bony pathology is seen. There is no significant facet joint disease or other bony change at any of the scanned levels.”
77 In that report of the 25th February 2007, the doctor noted that analgesia and rest and physiotherapy should bring about a gradual improvement in her symptoms.
78 In that letter the doctor referred to recent x-ray and CT scans of the plaintiff’s back. It is not clear why or when Dr Cimpoesu asked for a CT scan of the plaintiff’s back, but one was performed on the 6th November 2006, again by Western District Radiology.
79 The report of the radiologist of that date in respect to the L5-S1 level is as follows:
“At the L5-S1 level there is obvious disc space narrowing and some minor osteophyte formation. There is a little retrolisthesis of L5 on S1 leading to a shelving effect at the axial images. The shelving effect is somewhat asymmetric, being apparently more marked to the left side of the canal, and the fat in the anterolateral angle on the left is obliterated, suggesting there is significant disc prolapse present at this level. However, on the images symptoms would be more likely to be left- sided.”
80 I should pause in this recitation of the plaintiff’s general practitioner’s reports to say that the plaintiff’s solicitors had the plaintiff seen by Mr David Brownbill, a consultant neurosurgeon, on the 20th October 2006. His report is dated the 24th October 2006.
81 Mr Brownbill was only provided with what he said was some solicitor’s notes of interview and no other documentation or radiological reports. It is plain then that the plaintiff’s solicitors did not forward the Western District Radiology report of the 14th August 2006 or the report of the CT scan of 31st October 2000.
82 The plaintiff told Mr Brownbill that she had not had any accidents, illnesses or operations or injuries in the past save that in 1973, she suffered low-back pain as a result of an accident at Fletcher Jones. She said she was admitted to Ballarat Base Hospital and the pain slowly improved and went away after two years. She told Mr Brownbill that there would always be some occasionally low-back aching after that, after a heavy day’s gardening, otherwise there had not been any neck, arm, back or leg injury or pain.
83 The plaintiff told Mr Brownbill, with regard to the complaint of low-back aching, that:
“This occurs intermittently. She can go a day without it. It comes as a
spasm.”
84 On his examination, and dealing only with the lumbar aspect of it, Mr Brownbill said:
“Active thoracolumbar spinal movements were full and freely performed. There was no lumbar tenderness or spasm. Circumferential measurements showed the thighs to be equal at 43 cm and the calves to be equal at 33 cm. Power was full and equal in all muscle groups. Reflexes were present on reinforcement and symmetrical.”
85 Under the heading “Comment”, Mr Brownbill said, inter alia:
“Examination on the 20th October 2006 has shown a full range of shoulder, cervical spine and thoracolumbar spinal movements. There was no neurological abnormality of the cranial nerves or of the peripheral nervous system in upper or lower limbs.
On the information provided I consider that on probability, this lady suffered soft tissue damage to structures about the right shoulder and the lumbar spine in the described fall.
A full assessment would require lumbar spine and cervical spine scanning, but this is not clinically indicated at this stage.”
86 Mr Brownbill went on to say that the assessment of soft tissue injuries lay within the orthopaedic surgical province and that the plaintiff should avoid heavy lifting and the like.
87 The second defendant had the plaintiff examined by Mr Robert Carey, orthopaedic surgeon, on the 30th January 2007. Mr Carey was provided with the plaintiff’s claim for impairment benefit which was dated the 7th November 2006, the report of Mr Brownbill and a report from Dr Page dated the 11th October 2006. He also had the plain x-rays of the 14th August 2006 and the CT scan of the lumbar spine of the 6th November 2006.
88 Mr Carey took a reasonably detailed account of the circumstances of the plaintiff’s accident of the 11th March 2003 and her consequent progress. At the time of his examination, the plaintiff was not working, which she ascribed to her symptoms.
89 The plaintiff complained to Mr Carey at that point of time of pain in the lower back and the right lower limb. She told him that these symptoms had become worse about one month ago, but that she had considerably improved and that she now complained of pain in the lower back and the posterior aspect of the right thigh, but not in the leg. She apparently told him that walking did not cause her any significant trouble, although she felt sore afterwards, but that she had ceased her line dancing since August 2006.
90 Under the heading “Past History”, Mr Carey recited that:
“In 1973 she had a fall whilst working at Fletcher Jones and hurt her lower back. She said that she had recovered fully and had been active and had played netball until 2001.”
91 Mr Carey examined the plaintiff, both as to her shoulder complaints and as to her back. Upon examination of the back, he found her to be tender across the lower back and in the midline of the lower lumbar area. He said that lumbosacral flexion, extension and lateral flexion to the right was markedly restricted with lower back pain but there was full and painless lateral flexion to the left side. He said the thoracolumbar spinal rotation movement was full and did not cause pain. Lower limb reflexes were all present and normal and there was no muscle atrophy. The plaintiff was able to weight bear upon her toes and heels.
92 In regard to the plaintiff’s back, it was Mr Carey’s opinion, on the basis of his examination and the investigations that he was given, that the plaintiff had a complaint of lower back pain and intermittent right sciatic symptoms which are attributable to her having sustained a lower lumbar intervertebral joint and disc injury at L5-S1 level. He said there were no objective findings of radiculopathy.
93 Incidentally, Mr Carey could not find any injury specific to the right shoulder joint and thought that her symptoms indicated a strain injury to the soft tissues of the right scapulothoracic region. He was asked to make an assessment of permanent impairment, which he did, but which is irrelevant for my purposes.
94 I observe that although Mr Brownbill and Mr Carey come from different disciplines within the medical fraternity, there is a marked difference between their findings on examination as to the plaintiff’s backache.
95 Mr Carey apparently did not find it necessary to question the plaintiff about her prior history and he reports that, as I have said, she had fully recovered from her work accident at Fletcher Jones, as he told her.
96 I return to Dr Cimpoesu. She provided another report to the plaintiff’s solicitors on the 11th December 2007. In that report she said that the plaintiff’s last presentation to the doctor in relation to these injuries was on the 6th November 2007. The doctor recites that, at that time, the plaintiff told her that her back pain was stable when performing modified duties. The plaintiff also stated that she has discomfort and mild stiffness when sitting or standing for a longer time. On examination, the plaintiff then had upper and lower back tenderness and a good range of movement.
97 The chronology of investigations into the plaintiff’s complaints becomes a little confused at this time. On the 3rd March 2007, she was sent for an MRI investigation of her thoracolumbar spine. However, a report from Mr Tiew Han, a consultant neurosurgeon, dated the 13th August 2007 and addressed to the plaintiff’s solicitors, suggests that a Dr Jing Pan from the Warrnambool Medical Clinic had referred the plaintiff to him. He records as having seen the plaintiff on two occasions, namely the 26th February 2007 and later on the 26th March 2007. By the latter date he clearly had a copy of the MRI investigation at his disposal and obviously he did so before writing the report to the plaintiff’s solicitors.
98 The results of that MRI investigation in regard to the L5-S1 disc area was:
“Moderate desiccation and loss of disc height with a shallow left paracentral posterolateral and foraminal disc protrusion measuring 2-3 mm. This minimally indents the left anterior thecal sac and does not appear to be causing significant neural compromise. It also causes mild to moderate narrowing of the left L5-S1 exit foramen with effacement of the fat around the exiting L5 nerve root but no convincing flattening or compressing of the nerve root. No compromise of the right L5 or S1 nerve roots. Mild bilateral facet arthropathy.”
99 Under the heading “Comment” the radiologist reported as follows:
“Minor disc degeneration of L2-3 and mild disc degeneration from L3-S1.
No substantial disc herniation or convincing neural compromise. In particular, there is no evidence of compromise of any of the right-sided nerve roots.
There is a foraminal annulus fissure at L4-5 on the left and there is mild to moderate narrowing of the L5-S1 exit foramen without convincing compression of the exiting L5 nerve root.”
100 Mr Han first saw the plaintiff on the 26th February 2007, at which time he was supplied with the reports of Dr Page dated the 11th October 2006, that of Dr Cimpoesu dated the 25th February 2007, and Mr Brownbill dated the 24th October 2006.
101 Mr Han, with the benefit of Mr Brownbill’s report, says that the plaintiff presented to him with a long history of lower back pain.
102 Mr Han recites the plaintiff’s history of the fall at the first defendant’s premises and records that since then she had been complaining of ongoing lower back pain which had been quite severe in the two months prior to her seeing him. She also described radiation of pain up to her neck and shoulders and interscapular pain, and the lower back pain seemed to radiate into her right buttock and at times to her right heel, but there was no left-sided leg pain at all.
103 On examination, Mr Han found that there was normal straight leg raising to 90 degrees bilaterally and that the reflexes were normal.
104 I should pause to observe that the pain to the right shoulder area is not persisted with in this application but seems to be prominent in the plaintiff’s complaints to various doctors. It is nevertheless a matter which seems to be at the forefront of her presentation to doctors at times.
105 Mr Han reviewed the plaintiff on the 26th March 2007, where she maintained the same complaints made to him a month earlier.
106 Mr Han then made reference to the MRI scan, commenting that it showed minimal change in the lumbar disc which is contralateral to her symptoms. He said he believed that the disc protrusion could give her lower back pain but not sciatica – of which she has complained from time to time on the right side. Mr Han said therefore that he believed that the plaintiff had a soft tissue injury rather than a specific nerve root impingement in her right lower limb.
107 Mr Han said he advised her not to perform heavy lifting and repetitive twisting and bending to her neck and lower back.
108 He went on to say that in general terms, pain arising from the area of the back the subject of his examination tended to improve with the passage of time and he believed that that was a likelihood in her case. It was important for her to avoid repetitive bending and twisting. She could return to the workforce, he said, but needed to avoid excessive manual type work.
109 In the meantime the second defendant had had the plaintiff examined by Mr R Marshall, orthopaedic consultant.
110 In taking a history from the plaintiff, Mr Marshall, in his report of the 8th February 2007, said that the plaintiff told him that she had never had any past history of back pain. This was a matter denied by the plaintiff, who claims that she told every doctor of her previous problem in 1973 – or 1977 as it transpired.
111 She told Mr Marshall that her symptoms over the preceding four years since the accident had just continued, notwithstanding her having regular physiotherapy and exercises. She told Mr Marshall, amongst other things, that at that time she had great difficulty sitting for any length of time and said that travelling, “absolutely wrecks me”.
112 Mr Marshall, in his report, says that his findings on examination of the plaintiff were a little difficult to interpret. He found that she had pain in her back and complaint of pain on flexion, extension and lateral flexion movements of her lumbar spine. He said there was some limitation of the full range of movement. He went on to say that the sciatic nerve stretch tests seemed to be positive on the right side, and when the straight leg is lifted from the examination couch, she complained of pain down the back of her leg. However, on repetition of the test a little later, he said that the leg could be lifted to 90 degrees and there was no leg pain but only pain in the back. Mr Marshall’s report at the end of this entry records, in brackets, a question mark and an exclamation mark.
113 Mr Marshall said that the only unequivocally positive sign is that she had normal reflexes apart from the right ankle jerk which was absent, which would seem to suggest that she did indeed have a lesion of the right S1 nerve root. I pause to compare this with Mr Brownbill’s finding as a neurosurgeon that in October of the preceding year he could find no fault with her reflexes.
114 Mr Marshall thought that the plaintiff’s presentation was “very fragile” and that there seemed to be a considerable degree of non-organic input into her symptomatology.
115 Mr Marshall had access to reports of the plain x-rays of the 14th August 2006 and of the CT scan. Of course, the MRI scan had not been performed at this point.
116 Under the heading “Opinion”, Mr Marshall opined, inter alia, as follows:
• He believed that the main contributing factor to the plaintiff’s back problems were age-related degeneration of her spine. • He did not believe it possible that the fall four years ago had set off a train of events which has continued unabated since then. • He said that she had generalised changes in both the lumbar spine and the cervical spine but also had a considerable degree of psychosomatic overlay and her examination findings were somewhat equivocal. • He said that he thought that the work-related component of her problems must surely have ceased within a few weeks or months at most of the fall, and that her continuing problems should be regarded as the inevitable result of the age-related degenerative changes that are now visible in her cervical and lumbar spines.
117 He went on to say, that given her continuing generalised back pain – and her neck – that he thought physiotherapy after four years was contributing nothing. He concluded by saying that he accepted that she did have back, neck and shoulder pain which should not be gravely incapacitating and was fit for non-physical work and not for work involving repeated bending, straightening or lifting heavy weights.
118 The defendants’ solicitors sent the plaintiff to see Mr W Max Werne, who saw the plaintiff on the 19th October 2007. He was provided with the plaintiff’s Claim Form in respect of this accident dated the 18th November 2003 and reports from a Mr Grace, physiotherapist; Mr Carey and Mr Marshall.
119 Mr Werne also had all of the radiological investigations, save that of the 31st October 2000.
120 Mr Werne took a very detailed history from the plaintiff. Again, I can find no reference in that history to her previous back problems, although she did tell him of various operations that she had had.
121 I do not intend to recite the history of the plaintiff’s complaints given to Mr Werne. They replicate, in as florid a fashion as they do in her affidavits, that which appears in them. Further, there is no need for me to recite the results of Mr Werne’s examination in regard to the plaintiff’s shoulder complaints other than to say that he could not detect clinically any abnormality.
122 With regard to the plaintiff’s back, Mr Werne said that the plaintiff stood with a normal posture of her thoracolumbar spine but complained of pain over a wide area which included the back of her neck, the vertebral border of the right scapular and down into the right lumbar and right buttock areas. Mr Werne said he was unable to elicit any particular tenderness in these areas and that she resisted thoracolumbar movement and allowed no more than 40 degrees of flexion (normal 90 degrees) and no more than 10 degrees of extension (normal 30 degrees). He said, however, that she complained of pain at the limit of both flexion and extension but showed a normal range of lateral flexion to either side and a normal range of rotation to either side.
123 Mr Werne was able to view the films upon which the reports to which I have referred relate.
124 Having, as I say, reviewed those films, Mr Werne said as follows:
“I would point out that the plain x-rays and CT scan of 2006, and the MRI of 2007, reveal only moderate degenerative changes and really no more than one would normally expect in a person of fifty eight years of age who has raised a family of three children and has done a significant amount of manual work. Furthermore, the MRI of Ms Billings’ lumbar spine reveals no substantial disc herniation or convincing neural compromise, in particular there is no evidence of compromise in any of the right-sided nerve roots.”
125 Under the heading “Conclusion”, Mr Werne said:
“I consider that it defies credibility to attempt to relate Ms Billing’s current symptoms and claimed disability to the incident which took place … on the 11th March 2003. It must be remembered that over the intervening period she has worked for two different employers as a shop assistant. While working for her current employer she admits that between commencing work on the 1st September 2004 until August 2006, her symptoms were mild and she performed full time and unrestricted work.
Currently Ms Billings complains of neck pain, pain in the region of the right scapular and pain descending into the right side of her lower back, right buttock and the back of her right thigh. On physical examination she has a full range of neck movement apart from some moderate limitation of extension. …
She resits movement of her thoracolumbar spine but there is no objective clinical evidence of any radiculopathy in her lower limbs despite her complaints of sciatic like symptoms in her right thigh.
After spending an hour with Ms Billings, I came to the conclusion that her current symptoms and level of disability are comparatively mild and are due to age-related degenerative changes in her cervical and lumbosacral spine and are not related to the incident of the 11th March 2003. ….”
126 Mr Werne went on to say, inter alia, that her medication and “as needed” physiotherapy was appropriate and reasonable and that she could not then probably remain at work without this treatment but reiterated his view that such treatment as she was then currently receiving was due to an age-related condition and not due to a work-related condition.
127 Dr Cimpoesu responded to a request from the plaintiff’s solicitors for a further report on the plaintiff by letter dated the 4th February 2009. In that letter, she asserted that the plaintiff’s last presentation to her in relation to her known injuries was on the 6th November 2008, when the plaintiff told her she suffered with intermittent back pain, especially when sitting or standing for long periods. On examination, the doctor found that the plaintiff had mild back tenderness and mild restriction of movement.
128 The doctor then said that the symptoms were generally stable, that the plaintiff should avoid duties that could cause the exacerbation of pain. She thought it most likely that the plaintiff would experience exacerbations of back pain in the future.
129 The doctor said that the plaintiff’s symptoms had improved in general but she should avoid doing duties that could exacerbate her symptoms, and it was likely that she may experience exacerbations of back pain in the future and may require ongoing physiotherapy and analgesia.
130 The last report in the Court Books in point of time is that of Mr Kenneth Brearley, orthopaedic surgeon. He saw the plaintiff on the 29th January 2009 and was provided with a series of reports, including two from Dr Cimpoesu, Mr Han’s report and that of Mr Brownbill. He was provided with a number of other reports which I need not now enumerate, other than that he did have the MRI scans and the reports, together with the x-rays of the 14th August of 2006 and the CT scan of the 6th November 2006.
131 Mr Brearley noted under the heading “Past Medical History”, that the plaintiff had had no problems with her back and that she had had an arthroscopy on the left knee in 1989 but otherwise had had no previous operations.
132 I find this curious because being in possession of the reports of Mr Han and Mr Brownbill, one would have thought that he would have noticed the previous episode which the plaintiff revealed to those doctors in 1977. Indeed Mr Han’s report, as I have said, cited a “long history of lower back pain”. Mr Brownbill’s report contained the history that she had had the episode with Fletcher Jones, albeit briefly.
133 Thus, his report, it seems to me, which pays no heed apparently to that prior history, has a significant omission, and in the absence of reference to that prior history with her back, raises questions as to its utility. Indeed, on page 4 of his report, he prefaces his answers to other questions asked of him in the following way, namely:
“Prior to the fall she had not suffered any back symptoms at all. Undoubtedly some age-related degenerative disc changes were present but these were completely asymptomatic, that is until the fall occurred.”
134 I observe that this assertion is in contrast not only to some of the other experts but also to the plaintiff’s own evidence and the history of back problems to which I have already referred.
135 At this point I should mention a number of other matters. Firstly, I have read the reports of Mr Grace and Mr Zeunert, each of whom are physiotherapists. I do not think that they add to, or detract from, anything that has thus far been reported upon.
136 Secondly, I should say that having reviewed the films of covert surveillance tendered by the defendants, I do not find that they are indicative of anything other than someone who appears to be moving normally in the situations in which she is filmed.
137 The next matter relates to cross-examination of the plaintiff upon her WorkCover Claim Form in respect of this incident. The plaintiff ceased work in September 2003, as I have related. She put in a Claim for Compensation which is dated the 18th November 2003. The defendants made some point in cross-examination of the plaintiff to the fact that in response to questions upon the Claim Form as to whether she had had any previous pain or disability in the areas of her present injury or condition, and whether she had had a personal injury claim for this or a similar injury condition, namely, similar to that of which she now complains, that the plaintiff had replied in the negative to each of those questions.
138 Again, I note that the matters to which the questions were directed, from the plaintiff’s point of view, were some thirty years previously, but nevertheless I found her answers in effect unconvincing. It may be that she had just forgotten her previous claim for which she received the award of $25,000.00 which was Question 32 on that form, but the previous question in Question 30 as to previous pain or disability in the area of her present injury would seem to be a significant oversight, particularly in view of the fact that she has admitted that she was receiving treatment for her “niggling” back up to the time of this incident. Although it may seem to be a small thing, combined with other lacuna in her memory about previous events, it does create an issue as to her reliability as an historian.
139 What then is to be made of this conflicting material?
140 Its assessment is compromised by the failure of the plaintiff to fully apprise examining doctors of her history of back problems. Whether this is forgetfulness on her part, or oversight on the part of some doctors, is difficult to say. She told Mr Marshall that she had never had any past history of back pain. She told Mr Carey that she had fully recovered from a 1973 fall. Mr Werne did not get a history of past back problems from her. Mr Brownbill obtained an equivocal (in my view) history with regard to back ache after a heavy day’s gardening. Mr Han had Mr Brownbill’s report and recited that which Mr Brownbill had said when saying that the plaintiff had a “long history of lower back pain”. I have already commented on Mr Brearley’s history of “no problems with her back”.
141 I cannot speculate as to whether the opinions of those gentlemen would have been the same had they been given a more complete history of the plaintiff’s pre-existing problems. Her concession in cross-examination that the level of her treatment just prior to her accident in terms of physiotherapy and medication was very similar, points up the difficulty to which I have just referred.
142 In Dr Cimpoesu’s last report of the 4th February 2009, she states that she had last seen the plaintiff concerning her known injuries on the 6th November 2008, when the plaintiff told her she suffered with intermittent back pain. The doctor’s examination found that she had “mild back tenderness and mild restriction of movement”.
143 Those observations and findings do not, in my opinion, sit well with a detailed and florid account by the plaintiff of her disability as she describes in her affidavit and confirmed in her evidence.
144 I also note that apart from a three-month period between November 2006 and February 2007, she has maintained fairly constant employment, albeit with light duties or restricted hours. I find it difficult to understand how even she, having a necessity to work, could continue to do so with the pain she says she suffers at the levels that she has indicated.
145 It was submitted that this case falls within the principles established by the Court of Appeal in Petkovski v Galletti (supra). I agree.
146 The plaintiff bears the burden of satisfying the Court that the loss of “the body function” falls within s.134AB(38)(c) of the Act. In my opinion, she has failed to so.
147 The application will be dismissed.
148 I will hear argument as to costs.
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