Borzatti v Victorian WorkCover Authority

[2023] VCC 1900

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-03906

SHARRON BORZATTI	Plaintiff
V
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 August 2023
DATE OF JUDGMENT:	24 October 2023
CASE MAY BE CITED AS:	Borzatti v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 1900

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Lumbar impairment – pain and suffering only – supervening transport accident – credit – causation – range

Legislation Cited:      Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan [2006] VSCA 254; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Humphries v Poljak (1992) 2 VR 129; Stijepic v One Force Group Australia Pty Ltd (2009) VSCA 181

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Saunders with Mr C Woolacott	Zaparas Lawyers
For the Defendant	Mr R Stanley	Lander and Rogers

HER HONOUR:

1This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with Programmed Skilled WorkForce Limited (“the employer”) from February 2011 until December 2012.

2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. 

3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a)  permanent serious impairment or loss of a body function.”

4The body function relied upon in this application is the lumbar spine.[1]

[1]Transcript “T”1

Outline of Section 134AB

5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6The impairment of the body function must be permanent.

7The plaintiff bears an overall burden of proof upon the balance of probabilities. 

8By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

9I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Peak Engineering Pty Ltd v McKenzie[3] in reaching my conclusions.

[2] (2005) 14 VR 622

[3] [2014] VSCA 67

12The plaintiff relied upon two affidavits, the first sworn in April 2022 and the most recent, July 2023. She also gave viva voce evidence.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

13The plaintiff’s case was that initially there were low grade back problems from the work injury that were then overshadowed by the subsequent transport accident. Her transport accident injuries then ameliorated and the low back condition worsened significantly to the point where she is now complaining of quite significant symptomatology and requiring quite significant treatment.[4]

[4]T2

14The defendant’s position was, despite the recent treatment, there was a difficulty identifying a causal link between any work injury and the worsening of the plaintiff’s back condition in recent years. Stability and range were also in issue. Further, the plaintiff was required to disentangle the consequences of her lumbar and thoracic conditions.[5]

[5]T3

The Plaintiff’s evidence

Background

15The plaintiff is presently aged sixty-eight, having been born in December 1954.  She is married with two adult daughters.

16After finishing Year 9, she then worked in a number of jobs in her early adult life, including supermarkets and factories.  She took time out of the workforce to have a family.

17In the late 1990s, her family moved to Queensland and they were involved in a number of family businesses. They returned to Victoria in about 2008.

18The plaintiff registered with the employer labour hire company. She then began working at Australian Pharmaceutical Industries Ltd (“API”) as a picker and packer at its Dandenong South plant (“the plant”) in February 2011.

Work injury

19Work at the plant as a picker and packer involved heavy, constant and repetitive work duties.  There was a lot of pressure on the plaintiff and other casual staff, and she did not receive adequate rest breaks. 

20In about late August 2011, she began to suffer pain in her left hip and outer left thigh doing her duties.  She applied ice and anti-inflammatory cream, but her pain worsened and she started taking Ibuprofen. 

21On or about 13 September 2011, while working at the trolley picking area, she noticed a pull in her lower right back and a few days later, noticed a pain in the right side of her lower back after doing picking duties.  She thought the pain would go away.

Post incident treatment and work

22She attended Back in Motion, physiotherapy on 20 September 2011 and was given stretching exercises.  

23Very soon thereafter, she reported back and left hip pain to her supervisor and requested a reduction of hours.  She had some more physiotherapy but was not improving.

24Her hours were increased on a couple of occasions, not reduced.

25On about 10 October 2011, she saw Dr Sigalov at Carrum Downs Medical Centre (“Carrum Downs”). She was hesitant about going on WorkCover and the doctor suggested she speak to the employer about providing some funding for physiotherapy, and referred her for an x-ray and ultrasound (“the tests”).

26Her supervisor told her that the employer could not pay for physiotherapy without going down the WorkCover path and arrangements were made for a WorkCover representative to call her. 

27On about 12 October 2011, Karen Scott, the WorkCover coordinator called the plaintiff and insisted she see one of their doctors before having the tests, but the plaintiff refused because the tests had already been booked.  As Ms Scott sounded angry, the plaintiff agreed to meet her at the McKinley Medical Centre to see the company doctor after the tests.

28That occurred and Ms Scott assisted the plaintiff to fill out the necessary WorkCover paperwork. Dr Quek gave her a WorkCover Certificate and a prescription for Mobic.

29A couple of days later, the plaintiff returned to Dr Sigalov for her test results and told her about the employer’s attitude to funding physiotherapy and that the company doctor had given her a certificate.  Dr Sigalov told her if she did not improve, she may need to have a cortisone injection into her left hip.

30The plaintiff continued to attend Carrum Downs. She was advised to stop Mobic because of its side effects and, during that time, a return to work plan was devised, involving three hours at home reading health and safety material and attending the employer’s office doing administrative duties. 

31The plaintiff had ongoing pain in her left hip, lower back and left leg, and continued having regular physiotherapy.

32While at the employer’s offices, she advised one of its representatives about the lack of rest breaks, and he told her to consider a new job and that they were trying to negotiate some light duties for her. The plaintiff commenced some light duties at Keysborough doing data entry in the office on or about 26 October 2011. 

33After a short period, API told her they did not have any work for her, so the employer sent her to their Glen Waverley office for a few hours doing computer work. 

34On about 4 November, Dr Sigalov issued a further WorkCover certificate and advised the plaintiff to continue physiotherapy and that she might benefit from a cortisone injection, which she had on 8 November.

35The following day, the plaintiff returned to API to do light duties as certified by Dr Sigalov and for several months, undertook a combination of picking and office duties. 

36On 6 February, her physiotherapist undertook some dry needling on her left hip.  At about that time, the employer asked her if she could do more picking duties and API also wanted her picking trolleys, but she told them she could not.

37On 13 March 2012, her physiotherapist advised her to ensure she adhered to the work restrictions and also take rest breaks.  The next day, the plaintiff attended a health and safety meeting with Leigh Boyle at API and was advised she could take 10 minute breaks after doing a five hour shift.  The plaintiff was then working up to five hours picking, but struggled with hip and back pain and was reliant on her rest breaks.  She was not picking trolleys – a job largely left to the employer’s staff.

38In June 2012, the employer advised the plaintiff that a new return to work plan had been devised that had her picking trolleys.  She returned to very limited duties and there was pressure from API to increase her hours in that role. They wanted to know for how long her physiotherapist would require to have the additional breaks.

39She was being pushed to work beyond medical recommendations as her physiotherapist did not want her to pick trolleys for the hours API suggested. Sometimes, her physiotherapist was not sent copies of the return to work plans for approval and the plaintiff felt stressed about the situation. She told Dr Sigalov who suggested she seek legal advice if API made her pick trolleys beyond her medical advice.

40During September and October 2012, she continued to see her physiotherapist, Nick Graham Brown, complaining of back and left hip soreness. Her right lower back ached, especially when standing.

41In about November 2012, API questioned why her pick rate was down and she told them she was struggling due to pain.  She was taking Ibuprofen to help her get through the shifts.

42While at work on 10 December, she noticed pain in her right lower back, left hip and thigh.  She also had right buttock and thigh pain and pain referred down her right leg. The pain was so strong she had to limp to her car.  She went to work the next day, but the pain was still strong and she saw her physiotherapist for treatment the following day.  She was having difficulty sleeping.

43She went to work on 13 December for the Christmas lunch and did not work a full shift.  She had used a foam roller on her left hip the night before, which helped her to get through her shift.  On 14 December, she was relieved to hear her shift had been cancelled as she could rest over the weekend.

The transport accident

44On 15 December 2012, having picked up her mother to go Christmas shopping, they were involved in a transport accident in which she and her mother sustained injuries (“the transport accident”). They were taken to Frankston Hospital. Her mother had broken ribs, and she had a fractured sternum, and upper back and neck injuries.

45As at April 2022,[6] the plaintiff continued to have ongoing pain in her upper spine as a result of the transport accident and also suffered mental injuries contributed to by the transport accident. It was very traumatic to see her elderly mother injured.

[6]First affidavit sworn April 2022

46She had intensive treatment after the transport accident.[7] The focus, initially, was on the injuries from that accident and she had more physiotherapy, psychological treatment and took painkillers and anti-inflammatories.  She also saw a number of specialists.  She did not return to work after that accident.

[7]T33

47She deposed that she was referred to pain specialist, Dr Steven Jensen, in May 2013 for all her physical injuries.[8]

[8]        There was no report from Dr Jensen  

48The plaintiff swore a further affidavit in July 2023 in which gave further details of her transport accident injuries and treatment until 2017 when her focus turned to her lower back condition. 

49After the transport accident, her upper back pain was excruciating.   In early 2013, she was again referred to physiotherapist Nick Graham Bowman for management of that pain.  Although the focus was on her upper back pain, her lower back injury and left hip injuries had not resolved, and they were still causing her pain.  She had mentioned them to him.  He treated her for her lower back, even though it was not part of her TAC claim.  She stopped treatment in March 2014.

50During 2013 and 2014, she attended Carrum Downs.  Her lower back continued to trouble her and she mentioned this to whichever general practitioner (“GP”) she saw.  The focus of her treatment, however, was on her transport accident upper back and sternum injuries.[9] That accident did not make her back pain worse.  It has always been there, but it has gradually got worse and worse.[10]

[9]T76

[10]T77

51In early 2014, she was referred to an exercise physiologist (PACE), for treatment of her upper back injuries and told them that she also had ongoing pain in the lower back and left hip. 

52At that stage, her upper back pain was having a greater impact in terms of daily activities, but her lower back and left hip were still problematic.  She was suffering from ongoing pain in her left hip and ongoing pain and dull ache in her lower back.

53In June 2014, she was referred by her GP to neurosurgeon Chris Xenos. He was the first orthopaedic surgeon or neurosurgeon she had seen with respect to her lower or upper back.[11] 

[11]T39

54In about September 2014, she attended a course, but had to stop after a few days because of severe lower back pain.

55She continued to attend Carrum Downs during 2015, including for lower back pain.  Towards the end of that year, she developed lower leg and foot pain and was referred to neurologist, Dr Russell Rollinson.  She was then getting a burning pain in her lower legs.

56In about August and October 2015, Dr Haller wrote to WorkCover requesting physiotherapy for the plaintiff’s work injuries.

57In late 2016, she started physiotherapy at Complete Health and Wellbeing for her thoracic spine. Throughout 2017, she saw Luke Poon monthly.  While he focussed on her thoracic spine, she also spoke to him about her lower back and left hip and he also treated her for those issues. In about May 2017, he treated her for a pulled a hamstring muscle while dancing. She agreed she pulled her “hammy” when doing “front splits”.[12]

[12]T64

58She saw Luke Poon three times in 2018 for lower back pain. Physiotherapy for her lower back continued in 2019. She started seeing another physiotherapist, Chelsea Maddock, at the same clinic. That year, he she saw her in May, August and November for treatment of her lower back pain. During 2020, she had four visits for treatment of her lower back pain.

59The plaintiff had a lumbar x-ray on 28 June 2018.

60While Dr Haller noted in June 2018 the plaintiff was now getting lower back pain and left hip pain, “it never went away completely.” She went to the doctor very rarely in the early days.  She went to the physiotherapist for her lower back.[13] 

[13]T52

61In about 2018, the plaintiff had experienced a flare up of pain in her left leg and also a flare up of her back pain in 2020.  The latter was about the time of her daughter’s wedding, where she was probably doing more than normal looking after her baby granddaughter. She was given Prednisolone, which helped, and the acute pain from the flare up settled not long after.

62As at April 2022, the plaintiff was taking five milligrams of Amitriptyline at night to help with nerve pain referred from her back and more predominantly down her right leg.  She was also taking Panadol as needed.

63Dr Haller referred her to Dr Akil, neurosurgeon, who advised surgery was an option, but a last resort. It was correct that he told her in March 2021 that her symptoms were not particularly severe enough to warrant surgery.[14] No one had sent her for lumbar MRI scan and she not had one.  Pain management had not been suggested.[15] 

[14]T56

[15]T60

64On 2 December 2020, the plaintiff had a lumbar CT scan organised by Dr Haller. She had further four further physiotherapy visits at Complete Health in the first half of 2021. 

65Dr Tim March at the Sports Injury Clinic in Frankston gave her a spinal injection in December 2021.

66The plaintiff had surgery to remove the top lobe of her left lung on 26 April 2022. She was hospitalised for a week. She was advised a post-operative scan showed some cells in the lymph nodes near the left lung.  Three months of chemotherapy was recommended. She attended an oncologist at Frankston on 20 May 2022.  A few days later, she developed a bad infection in her kidney and was admitted to Frankston Hospital with sepsis. She was an inpatient for a week, delaying the start of chemotherapy.  She then had chemotherapy from 27 June to October 2022. 

67Chemotherapy finished last September.[16]  It is not causing her problems currently.  She gets a dry mouth.  She does not know if it is associated with the treatment. Other than that, the treatment is “not really” causing her other problems currently.[17] 

[16]T79

[17]T80

68She had problems cleaning and doing the shopping because of her back, not the cancer. She denied her thoracic spine was her main problem at the moment- it is her lower back and she agreed, also her “unfortunate cancer treatment”.[18]

[18]T65

69The focus of medical treatment in 2022 was largely related to her cancer, however her lower back pain was continuing to be a big problem.  She saw Dr Haller, in April 2022.  When she left the practice, Dr Waks took over.

70In about August 2022, Dr Waks prescribed Panadeine Forte for back pain. Over the following months, the plaintiff saw Dr Waks with increasing lower back pain and difficulty standing and walking.  She also had pain in her right leg, with pins and needles into her foot. Her right calf was also sore.

71Dr Waks suggested the plaintiff see Dr March again.  He gave her a care plan for five sessions of physiotherapy.  On Dr Waks’ advice, she increased her dosage of Endep from 10 to 20 milligrams, and for a short period, also increased the use of Gabapentin, which she was then taking 100 milligrams, three times a day.

72The plaintiff saw Luke Poon a few times in November 2022 and the plan was changed so she could then have chiropractic treatment.  She saw Luke Vella for the first time in November 2022 and had a lumbar x-ray on 21 November.  She saw him on five further occasions until the end of the year but the treatment made her feel worse.

73She went back to Dr March on 8 December 2022.  Her lower back was very painful and she could not stand for long.  She asked him whether anything else could be done to help with back pain.  When seen by Dr Waks four days later, her right leg pain was severe, and she was prescribed a short dose of Prednisolone and also some Panadeine Forte.

74The plaintiff travelled to the Gold Coast with her family from 17 to 23 December 2022 and the Prednisolone helped her manage while she was away. 

75She had further physiotherapy at Complete Health in February 2023 and saw Dr March later that month. He gave her an injection into the epidural space on 2 March, which helped with lower back pain for about a week.

76She had further physiotherapy on 14 March and returned to see Dr March three days later and told him her lower back pain had improved for a short period, but her leg pain was the same.

77She saw Dr Waks again on 6 April.  As well as lower back pain, which was not improving, she was also experiencing increased left hip pain. An x-ray and ultrasound revealed bursitis in the left hip.

78In May 2023, Dr Waks wrote to WorkCover requesting further funding for physiotherapy.  Five sessions were approved[19] and, later, a further twelve.  The plaintiff was then having physiotherapy at Back in Motion at Carrum Downs, having changed from Complete Health.

[19]Letter dated 21 June 2023 from EML

79The plaintiff continues to see Dr Waks for treatment of her lower back and left hip and does ongoing exercises at home for her lower back.

80She currently takes Gabapentin for the pain on a daily basis - three 100 milligram tablets a day. She also takes Panadol Osteo as needed.  When pain is extreme, she takes Panadeine Forte. 

81She has been given new stretching exercises to do in place of the home exercises previously recommended by her physiotherapist.

Current pain

82The plaintiff continues to suffer constant, variable lower back pain, predominantly on the right side of her lower back, extending into her buttocks.  She gets pain in the midpoint of her lower back, which can rise to a strong level.[20]

[20]July 2023 affidavit

83She gets some relief when sitting down. Being on her feet is difficult, and she avoids walking and standing for long periods, trying to limit herself to about 15 minutes of walking before sitting and having a break.  She can walk further relying on painkillers.

84She also suffers from pain, numbness and pins and needles going down her right leg from her lower back and into her buttocks, and down the right leg into the outside of her calf and into her foot. This comes and goes, but she has it most days.  She gets relief when sitting down. There are also occasions when she gets pain and numbness in her left leg going down to her left foot.

85She continues to experience hip pain, which is constant rather than intermittent, still on the outside of her left hip and varying in strength.  It is generally mild, but she has periods of flare ups where it is more severe. Problems with standing and walking relate predominantly to her lower back, not her hip.

86Her lower back pain has been there since the work injury in 2011 and it has continued to get worse to the point where it is now much worse than her upper back pain.  It is her lower back pain which is now predominantly responsible for consequences that she now experiences in terms of her quality of life and impact on domestic activities.

87She feels she has lost strength and movement through her lower back and has stiffness most days.

88She agreed her low back pain is “intermittent” as Professor Bittar described in May 2023.  It is not constant lower back pain, it depended whether she had taken medication or not.  She also agreed she has intermittent burning and aching in both legs. Since 2020, she has reported these symptoms to her GP; pins and needles “and those sorts of things,” and she still suffers from them.[21] 

[21]T61

Restrictions

89In her April 2022 affidavit, the plaintiff described worsening lower back and left hip pain with prolonged postures. She struggled to sleep because of the pain, which woke her up through the night, and she had to avoid sleeping on her left side because it was too painful.

90Due to her lower back and left hip pain, she had to avoid any activities involving heavy lifting or repetitive strenuous use of her back.  She had to be careful with back movements and try not to aggravate the pain, and she was very restricted with her activities. The pain built up if she walked any distance.

91She had a love for tapdancing before her injuries.  She was able to return to dancing in a modified and reduced way, but she could not dance like she used to.

92Sleeping is currently reasonable. It takes her a while to get comfortable. At times, she is woken at night because of pain, but this is more occasional.  Twenty-five milligrams of Endep has improved her sleep quality. 

93Her lower back injury continues to limit her ability to dance like she used to.  She is currently doing a regular dance class for an hour a week and sometimes does an extra hour in the evening.  Dancing is a social outlet for her and her doctors have encouraged her to continue with it as much as she can.

94Before her back injury, she did five dance classes a week. She now does not enjoy the dancing as much as she used to.  She is restricted with her movements and cannot dance the way she did previously.

95Before her lower back injury, she did two types of dancing, jazz and ballet.  Her dancing is now limited mainly to jazz, although she did return to ballet and tapdancing for periods after her injuries.  Dancing has been a part of her family, her mother having been a professional dancer during the war.  It saddened her she cannot dance as much as she used to, and she does not think she could dance without pain medication.

96She is now sixty-eight. She dances once a week.  It is a social outlet, as well as an enjoyable pastime.[22]

[22]T61

97Her lower back and to a lesser extent her left hip injuries restrict her ability to do normal household chores.  She can only go slowly and did lighter tasks.  She avoids mopping and vacuuming because they aggravate her pain.  She cannot not do much bending and twisting.  She has avoided doing the gardening since she injured her back and left hip and her husband now carries the burden of domestic chores and attending to the garden.

98She has bought a stool to sit on while cutting vegetables.  She does not do as much cooking as she used to and spreads her shopping over several bags.[23]  She now pulls out the odd weed, but even if she does so, her back is not great afterwards. Before her injury, she mowed the lawn.

[23]T61

Cross examination

99The plaintiff was aware of the issues in the current application and that it related to her low back, not her thoracic spine.[24] 

[24]T6

100Cross examination was directed in particular to various histories given by her to examiners and the affidavits sworn by her in relation to her pre and post transport accident spinal condition.

The plaintiff’s lumbar condition at the time of the transport accident

101In addition to the very detailed history in her affidavits, the plaintiff gave a similar description of disability to medico legal examiners seen for the purposes of the subject application.

102She agreed she told Dr Mittal on examination in May 2023 that at the time of the transport accident she was on modified duties. She was consistently struggling with her levels of pain and resultant sleep difficulties. She continued to need pain medication for her ongoing back pain. The plaintiff also told her that the transport accident thoracic spine injury had subsequently healed over several months. These thoracic symptoms although present over time, are not her predominant source of pain.[25]

[25]T7

103She told Professor Bittar in May this year that prior to the transport accident she was struggling with back pain working part time on modified duties 30 hours a week. She was having physiotherapy and taking daily medication. Her thoracic pain had improved over the years and was now less severe and less disabling that her lower back pain.[26]

[26]T7

104She denied she intentionally painted a grimmer picture of her pre transport accident back condition to Professor Bittar and Dr Mittal.  She had never thought the transport accident affected her back or left hip condition. She thought the pain from the transport accident was the main thing at the time, so whether it masked some of the lower back pain, she was not sure.[27]

[27]        T29

105In re examination, it “sounded right” that she told Dr Thomas in September 2013 and Dr Epstein in February 2015 that she had occasional low back pain. She told Dr Powell in March 2016 that low back and left hip symptoms will still occasionally play up. She was going to Dr Haller “for all things” in 2016.[28]

[28]T76

What did happen/ contemporaneous records

106The plaintiff agreed after starting physiotherapy in September 2011, she returned to graduated duties in November 2011. It was correct when she saw Dr Ho in May 2012, she was doing normal duties five hours a day, but not working in the trolley area. She agreed she was coping at work and found the extra break helpful.[29]

[29]        T10

107She disputed there was no pain as Dr Ho had reported on examination in May 2012; she still suffered with pain.  While he said she did not have any symptoms in her lower back, hip or leg – “they come and go; they are not always bad at that stage.”  She agreed she was then doing normal activities at home.[30]  “Probably”, she then had a full range of hip movement.[31]

[30]T11

[31]T12

108Dr Ho did a worksite assessment in June 2012. He thought she should rotate between all sections. Return to work plans had to be signed off by her treating doctors, including the plan of 31 July 2012. She thought she was then working six hour days but was having extra breaks.[32]  There were many weeks when she was working 25 hours.[33]

[32]T13 and T14

[33]T13

109Her physiotherapist did certify that he expected her to be fit for normal duties from 13 August 2012.[34]

[34]        Fit for pre injury duties. To rotate between sections at work as detailed by Dr Ho

110The situation with her return to work duties was complicated. The return to work coordinator wanted her to pick trolleys for six hours a day.  One of the reasons that “we sort of got clearance for me to go back to work, so I could rotate myself, under Dr Ho’s recommendations. Not pick trolleys for 6 hours a day, 5 days a week.” No one wanted to do that job putting things in boxes and unloading them onto the belt. She was rotating herself.[35]

[35]T15, T67

111If she was not given the clearance, she had to do what the return to work coordinator wanted her to and she was worried she was going to get injured even more. She went and saw Dr Sigaliv herself.[36] 

[36]T17

112She was never discharged from physiotherapy treatment. She kept seeing the physiotherapist during September and October, and last saw him three days before the transport accident.[37]

[37]T18

113As at August 2012, she got sore at work occasionally, depending on what she was doing.  She would not accept she was drastically improved at that time compared to how she was the previous year. She had improved and she was working near or at normal hours. Her pain was troubling her quite a lot a few days before the transport accident. She denied she had essentially almost recovered, but accepted she had improved from when she first had the work injury.[38]

[38]T20

114By the time of the transport accident, she was not doing all the housework.  She continued dancing through 2012, although on a reduced basis.  She was doing five dance classes a week before the work injury. At the time of the transport accident, she was doing less classes than before and would pick and choose what she did.  She kept going to classes because all the doctors told her dancing was good for her mental health.

115She had performed in the annual concert in November 2012.[39]  She did less routines in that concert. Between hurting herself at work and the transport accident, she was probably doing two classes a week. For a while after that accident, she did not do any classes then got back to doing two. At the moment, she is only doing one. [40] 

Her description to examiners of her back condition immediately prior to the transport accident when seen for her TAC claim

[39]T21

[40]T71

116She agreed a number of doctors whom she saw from 2013 to 2016 in relation to her TAC claim wanted to identify what were the effects of the transport accident.[41] 

[41]T22

117She agreed as Dr Epstein reported in September 2013, that before the transport accident, she continued dancing weekly, involving initial exercise then a dance class. It was correct that over time, she gradually did more picking and packing at work.  She was using Ibuprofen occasionally and Panadol. That is how she would describe the situation if asked in 2013 what was she like just before the transport accident.  She was able to do her housework and some gardening at that stage.[42] 

[42]T23

118She agreed as Dr Thomas reported in March 2014 that she then felt there had been substantial improvement in her back and left hip problem “but (she) still had some symptoms nonetheless at the time of the transport accident”.[43]

[43]T24

119She could not remember telling Dr Powell in January 2016 that she was working between 26 and 35 hours a week before the transport accident.  She did not think was the case, but it was a long time ago that she had got up to working over 30 hours.  She denied she told him at the time of the transport accident her workplace injury had almost resolved.  It had not resolved.[44] 

[44]T25

The plaintiff’s own documents regarding her TAC claim 

120On 27 August 2013, the plaintiff wrote to the driver of the other vehicle as follows:

“As for myself, I can no longer do the job I was doing, and although I didn’t like the job & had had a workplace injury that I was almost recovered from at the time of the accident, it was still a job that I was getting paid to do & before the workplace injury I was an excellent employee.  I was reliable, punctual & a good worker.  My GP says I am fit for light duties of which my employer (a Labour Hire Company) says they have none & under TAC, by law they are not required to provide me with any.  I am looking for suitable work with the help of a rehabilitation company but I am not having any success due to a downturn in positions available.  I worry about the future & if I will ever find suitable work.”

121Having been shown this letter, the plaintiff stressed she had not recovered.[45] 

[45]T26

122On 3 March 2015, the plaintiff swore an affidavit in support of her s93 application.

123At that stage, she described continuing to suffer pain in her mid to upper back area, which was present most of the time.  She deposed as follows:

“I had previously suffered injury at API to my left hip low back and left leg (‘the prior injury’) and required treatment, time off work, and changes to my work duties. Shortly before the accident, the physiotherapist (Nicholas Graham-Bowman) cleared me from requiring further treatment for the prior injury, and I was confident that improvement would continue and that I would soon be able to resume full-time unrestricted Pick Packer duties at API. At the time of the accident my return to work plan in respect of the prior injury involved working modified duties and the further gradual increase of my work hours.

I enjoyed interests and activities outside of work at the time of the accident. I enjoyed regular attendances at jazz and tap dancing classes, played social tennis and tenpin bowling, and enjoyed going on social outings (especially with family) such as to the movies and dinners. I did the usual home chores.

The injury, and/or my altered mental state since the accident, continue to make a major impact on my lifestyle. For example, I have not worked since the accident because of the condition of my mid-upper back …

The injury, and/or my altered mental state since affected many of my usual interests and activities.” 

124Before the transport accident, her physiotherapist had not cleared her from treatment.  The plaintiff was hopeful, not confident, that improvement would continue.[46] 

[46]T26

125She was not playing social tennis very often, very rarely.  She had not been ten-pin bowling for a long time.[47] This paragraph about her activities was accurate, but she did not do the activities referred to very often.  She did not do all the usual household chores.[48]

[47]T27

[48]T28

126Three days before the transport accident, her back was “killing her”. It was wrong in a longer term picture that at the time of the transport accident her back was not interfering with work or other activities.[49]

[49]T28

127She denied as at March 2015 her low back was “not causing interference”. Her low back pain was never better.[50]  It had troubled her ever since the work injury.[51]

[50]T41

[51]T42

128In her March 2016 s93 affidavit, she confirmed that things had not changed much since her affidavit a year earlier. Constant thoracic pain and resultant restrictions persisted.

129She denied she did not mention low back pains because they were not causing restrictions – “They were.  It never resolved.”[52]

[52]T48

130She deposed that, since swearing her first affidavit, she had continued to suffer constant but fluctuating pain in her mid upper back and neck. She continued to suffer the symptoms, consequences and effects of her transport accident injuries earlier deposed to.

131At the time of the happening of the transport accident, she had been undertaking physical work as a picker and packer.  Because of the injuries suffered in the transport accident, she did not consider herself capable of returning to physical employment such as a picker and packer.

132There had been no real change in her treatment since 2015. 

133She would not talk about her back in her affidavits because - “I was just guided by the lawyers.  It’s all I can say.  No one – everyone told me not to mention the lower back so that’s basically the way it went.”  She denied the true answer was she did not have low back symptoms that impeded her activities or, if she had them, then she had purposely misled the reader so it would help her TAC claim.[53]  She did not know her TAC claim would be better if she downplayed any back pain because she is not a lawyer.[54] 

[53]T48

[54]T49

TAC claim form

134She did not type her TAC claim form. She would have filled out the form and signed it on 28 December 2012.  It was her handwriting.[55] 

[55]T72

135In terms of injuries, the typed answer on the claim form was “(Closed fracture dislocation of sternum), (Injury of hip region), (Whiplash injury to neck)” and a handwritten entry of “back injury”.

136She answered “No” to whether she had had any lower back or neck condition before the transport accident and seemed to answer both “Yes” and “No” to a pre-existing hip condition or pain.  She answered “Yes” to having seen a chiropractor, but “No” to a physiotherapist, and “Yes” to treatment requiring four weeks off work. 

137She could not remember answering “No” to having a lower back condition or pain before the transport accident, as set out in the claim form.  She denied that she had written that on her claim form because her back condition from the workplace injury had resolved, because it had never resolved.[56]

[56]T31

138She agreed she was representing to the TAC that she had suffered a back injury in the transport accident because she had pain in her upper back, but they did not know she had broken her back until later.  She denied she was wishing to identify her lower back or that really she was saying her back condition got worse.[57] 

[57]T31

April 2015 statement

139The plaintiff made a statement in support of her application under TAC protocols, in which she set out that as a result of the transport accident, she sustained injuries including back injury and a psychological reaction to trauma. 

140She denied that entry meant she was incorporating a worsening of her lower back.  That was the upper back.  She did not know she had a fracture in her upper back until later.[58] She denied she aggravated her back pain in the transport accident.[59] 

[58]T32

[59]T33

141She also stated that prior to the transport accident, she had suffered injury to her left hip, lower back and left leg, and required treatment.  However, shortly before the transport accident, her physiotherapist cleared her from requiring further treatment for the prior injury.  Apart from the transport accident injury, she had not suffered from any conditions of lasting significance prior to the transport accident.

142The plaintiff repeated this paragraph in her August 2015 statement in support of her application under the Impairment Protocols. Further, she noted as a result of the transport accident, she sustained back injury and sternum and psychological reaction to trauma. She experienced pain and stiffness in her upper back, anxiety associated with car travel, and flashbacks and panic attacks. 

What she told examiners about the seriousness of her transport accident injuries

143She agreed she told Dr Epstein in September 2013 that she had difficulties with housework, constant pain in her upper back and occasionally right-sided neck, upper back pain, worse with sitting, bending and twisting.[60] 

[60]T35

144When told that Dr Thomas in March 2014 recorded complaints by her of pain just below the shoulder blades and that there was a normal examination of the lower back which revealed no lower back tenderness and normal posture, she responded “it used to come and go; it depended on what (she) had been doing”.  She agreed that the transport accident had an impact on her ability to function domestically, socially and recreationally.[61] 

[61]T36

145It was possible when she saw Dr Baker in March 2014 that she was suffering upper back pain every day.[62]

[62]T36

146Dr Hocking in 2014 accurately described her pain, limitations with housework, vacuuming and mopping, and standing to prepare meals.[63]

[63]T37

147When it was put to her that her complaints until and including 2014 were principally around thoracic pain, she said:

“Because nobody wanted to know about the lower back because I was there to be examined for the upper back and the sternum.  Every time I would mention the lower back they would say ‘We’re not here to talk about that.  You might want to take that up later’.”

148It was not a “nonsense” that she was dissuaded from mentioning her back. She denied she did not mention her back because there was no lumbar impairment.  It was not correct in 2014 her lower back was not impeding her at all with respect to activities.  It was.[64]

[64]T39

149She did not complain about her lower back to Mr Xenos in October 2015 because “it wasn’t all the time.  It depends on what (she’d) been doing.” Possibly he had no reference to low back pain because she did not mention it to him.[65]  It was not always there.  She “supposed” there was absolutely nothing preventing her from telling him about lower back pain.  All that she could say was that on that day, she did not have lower limb pain.[66] 

[65]T40

[66]T41

150On examination in October 2015, Dr Slesenger mentioned thoracic pain and resultant limitations and effect on sleep and made no reference to the lower back because “it was all about the upper back”.[67] 

[67]T42

151As Dr Slesenger noted, she had not been discharged from care.  She had not been cleared by a physiotherapist. She was still having physiotherapy.[68]  Normal findings on that examination by Dr Slesenger meant nothing – she would “examine the same way now except (she) is in a lot of pain”.[69] 

[68]T43

[69]T44

152She did not remember specifically which doctors told her not to mention her low back, “but that was what was happening.”[70]  Her back was always a feature in her life then.[71]

[70]T42

[71]T43

153Possibly Dr Bates from Metro Pain Group correctly described her thoracic problems as at 10 November 2015 – constant ache across her back. She did not remember. She was using Panadol and anti-inflammatories at that time to treat all her pain, not just thoracic.[72]

[72]T45

154She did not recall telling Dr Hocking in February 2016 that her hip condition had resolved.  There was no reference to back pain because it was all about the upper back pain.[73]  Activities he mentioned, like lifting her new granddaughter, caused both low back and upper back pain.[74]

[73]T45

[74]T46

155It was probably the case as Dr Powell reported in January 2016, there was neck pain and stiffness and pain radiating between the shoulder blades and that household activities were affected. There was no mention of the lower back because nobody wanted to know about it.  She again denied that was nonsense – “I have told you it was not all the same level all the time.  It never resolved completely.”[75]

[75]T47

156In response to the suggestion that she was exaggerating her lumbar condition pre transport accident when the true situation was that her lower back old injury had almost resolved, had steady progress and was cleared from treatment, she explained:

“When I was going through the TAC injury nobody wanted to know about my lower back injury.  It was all about the upper back.  Nobody wanted to know about the lower back because it wasn’t relevant.”[76]

[76]T29

157She agreed that a number of medical reports showed her thoracic pain interfered with recreational and domestic activities, constantly required medication that increased to Tramadol at one point, affected her ability to pick her grandchild, and interfered with jazz dance classes – “they both did, both injuries.”[77]

[77]T49

Current thoracic

158She continues to experience pain in the upper back as a result of the transport accident.  It is still sore and stiff, and she gets an occasional ache.  She is not currently having any treatment for these injuries and they no longer impede on her daily activities in any material way.  Her upper back pain is manageable. Her lower back pain is much worse.[78]

[78]July 2023 affidavit

159Her thoracic pain is a lot better now.  It still bothers her from time to time, but it is a lot better than it was.  She had had a lot of treatment for it as of March 2017.  She had done a lot of work on her thoracic spine.[79]  It just gradually got better and better.  It still bothers her today, but it is not really bad.  Some days it aches but it is not too bad. She has difficulty with a range of tasks now because of her lumbar spine.[80]

[79]T49

[80]T50

160Her thoracic pain did not get a lot better after the settlement of her TAC claim- “it gradually improved.”[81]

[81]T51

161She continued to get upper thoracic spine pain and had it since the transport accident.  It had never completely gone away; it is a lot better than it was- “It caused a little restriction to some degree.”[82]

[82]T52

162She could not say exactly when her back pain started to become a bigger problem than her thoracic.  It was maybe three or four years ago.[83]   

[83]T79

163She denied she was exaggerating her symptoms in her affidavits and was prone in both her cases to exaggerate for the benefit of compensation.[84] 

[84]T51

Worsening of lower back

164Her low back has gradually got worse and worse since Dr Haller’s February 2022 report.  Nothing had happened.  There was no particular date.  It would just flare up from time to time.  It would be all right for a while, then it would flare up again, and “it’s now at the stage where I can’t be on my feet for more than about 10 or 15 minutes and I’ve had two cancers and I’ve had enough”.[85]

[85]T53, the plaintiff then needed a break as she was upset

165After having a break, the plaintiff confirmed there was no event which caused her back pain to worsen with now recurring paraesthesia,[86] as Dr Haller outlined in her referral letter to Professor Bittar.[87]

[86]Dr Haller’s referral letter to Professor Bittar

[87]T54

166Nothing occurred in 2018/2019 in her back pain development.  Pins and needles started in 2020.  She could not identify any trigger about that.  She was just actually nursing her granddaughter at the time, not lifting.[88]

[88]T57

167Her back pain has got a lot worse recently.[89]

[89]T56

168She agreed with Dr Haller that at the start of last year her chronic pain was related to both spinal areas, except the upper back pain is now not too bad and the lower is giving her more grief.[90]

[90]T53

The new leg pain

169Since 2020, her newer symptoms of burning and pins and needles in her legs are fairly debilitating in themselves. Both the back and leg symptoms affect her life in many ways.[91]

[91]T62

170A couple of times a week she gets an intermittent ache in both legs, mostly the right, occasionally the left.  These last until she takes pain medication.[92]

[92]T80

Plaintiff’s medical evidence

Treaters

Dr Haller, GP

171In August 2016, Dr Haller advised CGU that the plaintiff continued to have discomfort in the lower back and hip but had a good range of movement. She requested a review for further manual therapy.

172The plaintiff had a WorkCover injury to her lower right back and left hip, and had physiotherapy for about a year and was on a work plan, working four days a week, when she had the transport accident.

173She again wrote to CGU in October 2016, confirming there had not been a four year gap in the plaintiff’s treatment. The plaintiff was not originally seen at the clinic for her WorkCover injury, but unfortunately suffered a transport accident while still getting treatment for this injury and, as such, was being treated for the TAC accident during this time.  Her transport accident injuries took priority over the workplace injury.

174In July 2018, she referred the plaintiff to Back in Motion physiotherapy, noting she had persistent left hip and lower back pain and did a lot of dancing, but warmed up each time.  Medication then included slow release Tramal.

175On 23 January 2021, Dr Haller referred the plaintiff to Professor Richard Bittar. She advised that the plaintiff had had back pain for a long time, worse over the past 12 months.  The plaintiff had recurring paraesthesia in the right leg, knees to foot, and a hot and cold sensation in the upper thigh.  Trialling Lyrica.

176In her February 2022 report to the plaintiff’s solicitors, Dr Haller noted the plaintiff stated she had gradually a sore left hip and was diagnosed with trochanteric bursitis, treated with physiotherapy and was able to keep working.  Two weeks later, while bending down, she had a sudden rip sensation in her lower back. This was Treated conservatively and she gradually returned to work part time.

177In December 2012, just prior to returning to full time duties, the plaintiff was involved in a transport accident sustaining a number of injuries, in particular, a fractured sternum and fractured T2 vertebral beds with associated soft tissue injuries.

178The plaintiff had never returned to work due to the ongoing chronic regional pain of both her thoracic and lumbar spinal regions.

179The plaintiff’s chronic pain was related to both her working duties and the car accident.  She was not able to work on a permanent basis for a number of medical reasons.  She was on a pension and unfortunately she had other serious medical problems and required further investigations and treatment.  She would never be fit enough to return to the workplace.

Dr Hazem Akil, Neurosurgeon

180Dr Akil saw the plaintiff on referral from Dr Haller in March 2021. 

181He was aware of the workplace injury, as well as the transport accident.  Since then, the plaintiff had been experiencing elements of lower back pain, but apparently over the past two to three years, the lower back pain had been worsening in intensity and about a year ago, she started feeling pins and needles involving her right leg all the way to her foot.  Since Christmas, those sensory symptoms started becoming more constant and started bothering her significantly and started becoming associated with cramp in her right calf.

182So far, the plaintiff’s symptoms were not particularly severe to prompt any surgical intervention and his advice was to preserve the core strengthening and do extra sessions of yoga and Pilates.  The chances of worsening her symptoms was about 50/50 in the future.  However, currently, surgical intervention was unnecessary. 

183In his report to the plaintiff’s solicitors in June 2023 relating to the March 2021 attendance, he thought the lumbar pain was primarily related to aggravation of lytic spondylolisthesis. On balance, and taking into account the type of duties the plaintiff used to perform, he believed work was a contributing factor rather than the sole cause of pain. It was the workplace injury rather than the transport accident that was a significant contributing factor. 

184He was asked to separate the consequences of the work injury with the injury suffered in the transport accident on functional limitations and ability to perform ADLs.

185If this question was related to the history he had taken directly from the plaintiff, then he did not know the details of the effects of it on the activities of daily living.  He did not discuss that with her on his only assessment.  With regard to functional limitation at the time he saw her, they were not really that bad, particularly standing, walking, sitting, lifting and bending.  That is why he did not feel a need to review her again.

186At that time, he felt the plaintiff still had symptoms related to her lower back pain and symptomatic spondylolisthesis, which he felt would continue for the foreseeable future to a varying degree.

Luke Vella, Chiropractor

187The plaintiff presented to Total Health Chiropractic on 18 November 2022 with constant, worsening right sided lumbar pain, which she described as being there for years.   

188In his June 2023 report, he noted his initial diagnosis of chronic segmental joint dysfunction of the cervical, thoracic and lumbar regions, complicated by previous trauma and right sided sciatica. The injury was consistent with lifting injuries. 

189As he had not seen the plaintiff since 2022, it was difficult to comment on her current incapacity for work, but in his notes, her capacity to work was hindered.  Alternative employment would suit her best until her pain/ injury was treated properly. Prognosis would be fair to good, considering she got the best care and treatment and to stick to it going forward.

Dr Tim March, Sports and Orthopaedic Medicine

190The plaintiff was referred to Dr March by Dr Haller in October 2021 with a history of right, more than left, leg symptoms, which include pins and needles and burning.

191He thought the plaintiff had a Grade 1 spondylolisthesis with resultant foraminal stenosis at L5-S1. On examination, a right quadrant test brought on the symptoms of tingling and burning in the right leg. He gave her information regarding epidurals and also recommended an MRI scan.[93]

Medico-legal  

Professor Richard Bittar, neurosurgeon

[93]        He later gave the plaintiff spinal injections in December 2021 and March 2023

Transport accident

192Professor Bitter saw the plaintiff in February 2016 at the request of Shine Lawyers.  She then complained of back pain and had not worked since 14 December 2012.

193The plaintiff told him that she had experienced low back pain in the past which had been ongoing, but had not been worse since the transport accident.[94]

[94]T77

194The onset of symptoms occurred following a transport accident, where the plaintiff’s vehicle was t-boned.  She was diagnosed with a fractured sternum however her spine was apparently not investigated.

195Since the transport accident, she had complained of ongoing upper interscapular back pain, which she described as an ache, constant, with an average severity of five out of ten.  Her back pain was exacerbated by repetitive arm movements, lifting more than five kilograms and any pushing or pulling.

196The plaintiff was then taking Panadol Osteo and codeine-based medications as required.  She had a gym membership and was seeing an exercise physiologist until recently.

197On examination, she had bilateral paravertebral tenderness over the upper thoracic spine and no muscle spasm.  Neurological examination did not reveal any evidence of radiculopathy of myelopathy.

198A cervical CT scan of December 2012 did not demonstrate any fracture.

199He thought the plaintiff presented with back pain emanating from her thoracic spine.  The differential diagnoses would include:

(a)   Musculoligamentous back pain (that is unlikely as the condition tends to improve and resolve, usually over a period of several months);

(b)   Aggravation of thoracic spondylosis, which was the most likely diagnosis, with specific structures implicated and her pain may include the intervertebral disc, facet joints, costotransverse and costovertebral joints, and thoracic spinal fracture.  It was impossible to give a specific diagnosis without appropriate imaging of the thoracic spine.

200The condition was accident related, particularly the transport accident remained the dominant contributing factor to her pain, disability and requirement for treatment.

201He recommended thoracic spine x-rays and a SPECT CT scan.  He also recommended review by pain specialists for the consideration of invasive treatment options.

202The condition had rendered the plaintiff totally incapacitated for work and her pre- injury duties and that she did not have any realistic capacity for suitable employment. Her condition would have a detrimental effect on her ability to undertake a full range of recreational and domestic activities.

203The plaintiff’s condition was likely to remain stable in the long term.   

Work injury

204Professor Bittar saw the plaintiff in May 2023 in relation to this application.

205The history was that, prior to the transport accident, she was working modified duties 25 to 30 hours a week on a return to work program, however was struggling with lower back pain at that time.

206During the course of her employment in late 2011, she began to experience pain in her left leg and then there was the bending down a week or so later with immediate severe lower back pain.  She remained at work for several days and then was put on light duties and had some analgesia and physiotherapy.

207Her condition improved over the following 12 months before stabilising and she was able to increase her work hours to pre-injury hours, 25 to 30 a week, but was unable to return to her full pre injury duties.  She characterised her work on her return to work program at that time as being of a fairly light nature, with avoidance of heavy lifting, as well as bending or twisting.  There was some conflict with her return to work coordinator at the time, who was in dispute with her physiotherapist, because the return to work coordinator was requesting the plaintiff increase her physical activities.

208At the time of the transport accident, the plaintiff was experiencing ongoing lower back pain and was having physiotherapy, as well as taking daily non-steroidal anti-inflammatory medication and paracetamol. 

209In the transport accident, she sustained an injury to her thoracic spine and has experienced ongoing thoracic back pain since, although that had improved over the years.  It was less severe and less disabling than her ongoing lower back pain.

210Following the transport accident, the lower back pain persisted, but did not worsen to a significant degree.  She had experienced persistent lower back pain over the years and had been treated by a variety of practitioners, including physiotherapists and sports physicians.  She had also seen neurosurgeon, Mr Chris Xenos, but that was in relation to her thoracic back pain following the transport accident.  She reported over the previous four to five years her lower back pain had worsened slightly.

211The plaintiff reported intermittent lower back pain which tended to occur several times a day depending on activity. It was generally dull, burning or aching in character. It ranged from 3-7 out of 10.

212She also experienced intermittent burning and aching n both legs more so the right. This pain was of similar severity to her low back pain and tended to occur when her back pain was present.

213The plaintiff also experienced thoracic back pain however that related to the transport accident and had been stable over a number of years.

214On examination, the plaintiff walked with a non-antalgic gait.  She had a mild restriction of lumbar flexion and severe restriction of extension, which was more painful.  She had bilateral paravertebral tenderness, more on the right side in the mid and lower lumbar area.  There was associated with muscle spasm.  There was no neurological abnormality and no abnormal illness behaviour.

215The plaintiff presented with aggravation of lumbar spondylosis.  The facet joints were most likely the source of her pain.  She also had aggravation of pre-existing, but asymptomatic spondylolisthesis at L5-S1, with probable L5 nerve root compression, which would account for her leg pain and sensory disturbance.

216The plaintiff’s employment was the dominant contributing factor to her lumbar spine condition, specifically the heavy and repetitive work.

217The plaintiff did sustain a significant thoracic spine injury in the transport accident, however there was no evidence that that accident resulted in any further injury to her lumbar spine.  Her lower lumbar related symptoms were more severe than her thoracic and had a greater functional impact in relation to her ability to bend, twist, lift, sit and stand.  The lumbar condition was the dominant contributor to her overall disability when compared to her thoracic spine condition.

218The plaintiff should be assessed by a pain specialist and undergo lumbar medial branch blocks to determine whether the facet joints were the cause of her pain.  She should also be considered for bilateral L5 nerve blocks to see whether these improved her leg pain.

219The plaintiff was permanently incapacitated for her pre injury duties as a picker/packer as a result of her work related lumbar condition. If the transport accident had not occurred, she would have remained totally incapacitated for her full pre injury duties as a result of her work related lumbar condition.

220She did not have any realistic capacity for suitable employment on a reliable and consistent basis.  In the absence of the transport accident, she would probably be able to undertake very light work three to four hours a day, three to four days a week if work was available, given her age, education, training, skills and work experience. It would be unlikely she would be able to find such work in the open market.  He thought her incapacity for work was permanent.

221The plaintiff’s lower back conditions were causally connected in a material way to the work injury.

222It was important to note, while the plaintiff had ongoing symptoms as a result of the transport accident, these were in a different area of the spine and had improved over the years, whereas her work related lower back symptoms had deteriorated in recent years, therefore her lumbar condition was now the dominant contributor to her impaired function and disability, as well as ongoing treatment requirements.  Her back injury was likely to continue for the foreseeable future.

Mr Stephen Doig, Orthopaedic Surgeon

223Mr Doig saw the plaintiff in May 2023 in relation to the work injury. 

224The plaintiff told him of her work with the employer.

225The plaintiff was diagnosed with bursitis by her local doctor. She was seen by a physiotherapist and had a steroid injection in the lateral aspect of the left hip which was of some help. She returned to light duties and started a return to work plan with some physiotherapy. She gradually increased her hours but felt she could not do six hours of picking because of the back and left hip pain. About 12 months after this pain had come on, she said she started to develop a similar type of thing on her right side.

226She was involved in the transport accident where she fractured her sternum and T2. She was never able to return to work.

227She told him her left hip was still sore and she got some lateral pain. She still had some ongoing lower back pain which occasionally radiated down her right leg to the foot as a result of which, she got some paraesthesia.

228Overall, she felt her back pain had slowly and steadily deteriorated.

229On examination, there was restriction of lumbar movement and some tenderness. There were no neurological abnormalities. That was consistent with the stated cause.

230The plaintiff had evidence of a chronic disc injury affecting the lower part of her lumbar spine. This was separate from the injury to the upper back. The injury was consistent with the stated cause.

231From the clinical point of view, he considered the plaintiff’s lower back condition was connected to the injury that she sustained while working with Programmed Skill.  There was minimal effect from the trochanteric bursitis of the left hip.

Transport accident

232Mr Doig saw the plaintiff in 2015 for the purposes of an AMA assessment in relation to the transport accident, which essentially had resulted in a superior endplate fracture of T2.

233The plaintiff told him that she had continued to get an ache in the upper part of the thoracic spine and it was hard to stand for long periods.  She also told him there were no other injuries. At the time of the transport accident, she was fit and well. Since that accident she had not worked primarily because of her upper back injury.

234He thought the prognosis was reasonable and it was likely the plaintiff would have continuing ache and pain in the thoracic spine no matter what else was done.

235Having read through both of his reports, Mr Doig provided another report in August 2023.

236He considered the plaintiff’s work injury was a gradual process type injury affecting, primarily, her left hip and lower back.  The lower back pain was not referred to in the previous assessment for her transport accident and, in fact, when he saw her, he specifically asked about that, and she said there was not anything else apart from her cervical spine and thoracic spine injured in the transport accident.

237Having read the plaintiff’s affidavits in this application, he agreed with Professor Bittar that employment was a dominant contributing factor to the lumbar spondylosis.  Dr Mittal’s clinical assessment went along with his and Dr Akil’s report also went along with a similar diagnosis, and he thought the workplace injury, rather than the transport accident was a significant contributing factor. He still considered the lower back injury was specifically related to work with the employer and that that was the “major causation of the plaintiff’s lumbar spine problem”.

Dr Meena Mittal, Pain Physician and Specialist Anaesthetist

238Dr Mittal examined the plaintiff in May 2023.

239She noted the work injury and the plaintiff’s commencement on light duties on a return to work program, which was a combination of picking and packing, as well as sedentary activities, which she was able to continue on modified duties until 2012.

240The plaintiff was then involved in the transport accident and had been unable to work since.  Despite the fact she was on modified duties in December 2012, she reported consistently struggling with her levels of pain and having difficulty with sleep and she was continuing with analgesic medication.

241The plaintiff indicated there was no specific change to her pre-existing back pain and left sided hip pain as a result of the transport accident.  This continued to persist after the transport accident.

242Neck and upper thoracic spine and anterior chest wall pain subsequently healed over several months.  Those symptoms, although persistent over time, were not the plaintiff’s predominant source of pain.

243The plaintiff described lower back pain, mainly on the right hand side, radiating into the right buttock.  There was also left hip pain.

244On examination, there was reduced lumbar movement and evidence of right sided paravertebral muscle spasm.  There was a lesser component of sacroiliac joint pain.  There was also right lower limb pain, most likely secondary to the right L5 nerve root irritation.

245Dr Mittal did not believe the plaintiff had had adequate treatment for her lower back and bilateral lower limb pain and left sided lateral hip pain, and recommended she be referred to a pain management specialist and investigations he performed. 

246The plaintiff had aggravation of pre-existing asymptomatic lumbar spondylosis.  There was an element of facetogenic pain and sacroiliac joint pain, as well as bilateral L5 neural irritation.

247The injury was consistent with the stated cause and was causally connected in a material way to the work injury.

248The plaintiff’s back injury was likely to continue for the foreseeable future due to the duration of her symptoms and lack of adequate treatment provided earlier on.  The left hip was also causally related in a material way to the work injury.

249The plaintiff had significant functional limitations as a result of the work injury, with difficulty with repetitive lifting, bending, a lifting capacity of not more than three to five kilograms, problems with prolonged postures and weightbearing activities were more problematic.  She also had difficulty with household duties.

Investigations

250There was a left hip and pelvis x-ray and left hip ultrasound in October 2011.

251On x-ray, there was no bone or joint abnormality seen.  On ultrasound, there was no abnormal fluid seen in the left hip joint space.  There was slight bursal thickening around the insertion of the gluteus medias and minimus tendons and a very small amount of fluid also seen in the greater trochanteric bursa.

252There was a steroidal infiltration of the trochanteric region of the left femur in October 2011.

253There was a renal ultrasound, and also an ultrasound of the left hip in January 2013.

254In June 2018, there was an x-ray of the lumbosacral spine, and pelvis and both hips.

255A CT scan of the lumbosacral spine in December 2022 was reported to show marked degenerative change at the L4-5 disc with associated mild thecal sac narrowing, with slight dorsal disc bulging under the PLL and ligamentum flavum hypertrophy.  There was Grade 1 L5-S1 spondylolisthesis with bilateral L5 pars defects and with mild thecal sac narrowing relating to the spondylolisthesis and facetal arthropathy and hypertrophy.  Spondylolisthesis related to lateral L5-S1 foraminal stenoses. 

256In November 2022, an x ray of the thoracic spine was reported to show mild scoliosis concave to the right inferiorly.  In the lumbosacral spine, there was slight elevation of the left hemipelvis.  Mild scoliosis concave to the left.  Marked disc narrowing and mild spondylosis at L4-5 Grade 1, spondylosis L5 with bilateral pars defect.

Defendant’s medical evidence

257Most of the medical evidence relied on was to show improvement in the plaintiff’s lumbar spine before the transport accident and lack of mention of it thereafter, with focus on the thoracic injury.

Treaters

Work injury    

258Nick Graham-Bowman from Back in Motion Physio wrote to Dr Sigalov in late November 2011 advising of the plaintiff’s hip complaints and the suggestion of an injection. He also mentioned her intermittent low back pain.  

259He reported to the return to work coordinator on 13 August 2012 having discharged the plaintiff that day from one physiotherapy treatment. He had given her a gym program. He had also been given an updated certificate of capacity ruling that she is fit for normal duties, it being important that she rotated between the three sections for the day. He advised that:

“Sharon feels she is at pre-injury level in regards to her pain and function, and whilst she still does get sore at work occasionally, I feel her exercise program will prevent future recurrences.”

260On that day, he certified he expected the plaintiff to be fit for normal duties from 13 August 2012.  The diagnosis was trochanteric bursitis.  She was “fit for pre-injury duties to rotate between sections at work as detailed by Dr Ho”.

Transport accident

Kris Wood, Psychologist

261The plaintiff sought psychological treatment from Kris Wood, from April 2013.  Treatment related to anxiety and low mood in relation to the transport accident.

262As at February 2015, the plaintiff was still suffering an adjustment disorder with mixed anxiety and depression.

Mr Chris Xenos, Neurosurgeon

263The plaintiff saw Mr Xenos, in June 2014 on referral from Dr Caroline Hardy, with chronic spinal pain following the transport accident.

264The plaintiff described persistent thoracic posterior pain which fluctuates in severity if she stands or sits for more than an hour or is active. The pain does not shoot down into the back. He noted she only had mild discomfort in her neck and she had radiation of pain in a mechanical and muscular nature across both shoulders. He was unsure if the right should itself sustained any injury.

265Of significance, the plaintiff had no radicular pain or weakness or numbness shooting down either arm into the hands.

266On assessment, the plaintiff looked slightly anxious and depressed but her gait was normal. Palpation of the thoracic spine demonstrated no mid line tenderness. Neck examination demonstrated a good range of movement and upper limb neurological examination is normal, in particular there was no focal C5 or C6 weakness and her reflexes and sensation were all present. He reviewed the cervical CT scan and noted a minor healed and stable T2 superior end plate fracture and no spinal canal compromise.

267He diagnosed cervical spondylosis, slightly worse at the C3/4 level with some bony spur formation causing bilateral foraminal stenosis. Possibly some other discomfort in the right shoulder may relate to C4 nerve compression but otherwise thought her symptoms were minimal. Surgery was not recommended.

268There was no mention of any work injury or any problem with the lumbar spine on that examination.

Medicolegal – transport accident claim

Dr Michael Epstein, Psychiatrist

269When seen in September 2013, the plaintiff told him about her work injury and subsequent treatment.  She was having physiotherapy twice a week. She had continued doing dancing weekly, involving initial exercises and a dance class.  Over time, she gradually did more picking and packing. 

270He noted that the plaintiff attended her dance group weekly and performed in the end of year concert in November 2012.  She continued to have some pain in her left hip and some occasional lower back pain.  She was able to do her own housework and gardening.

271The plaintiff had some confusion and was upset about what was involved in a return to work situation before her transport accident. 

272As to her current condition, she said she had constant pain in her upper back and occasional right sided neck pain and back pain.  She had occasional left hip pain that had become slightly worse since the transport accident and was present every few days.  She had occasional lower back pain and occasional pain in her sternum.  She had ceased gardening and her husband did most of the cooking.

273On re examination in February 2015, the plaintiff told him that she continued to have constant upper back pain made worse by activity, occasional low back pain, and only very occasional left hip pain.  She had not resumed any gardening because of her upper back pain.  She had resumed her dance class weekly after the Christmas break, but remained more limited with exercises and with some dance moves.

274He noted she had some time off work in late 2011 in relation to trochanteric bursitis in her left hip and had some time off work.  Her employer was not supportive about her work restrictions in relation to her injury.  Prior to her transport accident, she was working four days a week, six hours a day, with occasional pain in her left hip and lower back, and occasionally used Ibuprofen and Panadol.

275At the time of the transport accident, she was experiencing some apparently work related left hip and occasional lower back pain and had a WorkCover claim.  She was working four days a week doing picking and packing and attended her dance group regularly.

Dr Clayton Thomas, Pain Specialist

276On examination in March 2014, the plaintiff described stiffness and soreness in the interscapular area just below the shoulder blades and also a crawling pins and needles type sensation in the left shoulder girdle.  She had a past history of lower back pain and left hip bursitis.

277On examination of her lower back, there was no lower back tenderness and normal posture.

278The plaintiff had a past history of lower back pain and left hip bursitis.  She had previously worked as a picker/packer with a labour hire company.  She had developed pain in her lower back and left hip around September/October 2011.  She had only one week off and returned to work to do data entry and then, with time, moved back to her picker/packer type duties. 

279The plaintiff had previously worked 30 to 32 hours per week in a casual manner, but at the time of the transport accident was back working 24 hours per week.  She felt there had been a substantial improvement in her back and left hip problems, but she still had symptoms, nonetheless, at the time of the transport accident.

Dr Chris Baker, Occupational Medicine

280On examination in March 2014, the plaintiff told him that she had pain every day.  The main pain she suffered was in the upper back above the bra strap.  It was in the same region all the time.

281The plaintiff was working 30 to 32 hours at the time of the transport accident.  She was also on restricted duties as she had had a left hip bursitis and pulled a muscle in her lower back on the right side.  She stated she was off work for about a week.

282The plaintiff had had physiotherapy and cortisone injections which helped.  She was on a return to work plan and estimated she had a 60 to 70 per cent work capacity at the time of the transport accident. 

Dr Bruce Hocking, Occupational Medicine

283When first seen in May 2014, the plaintiff reported constant stiffness across her mid back area between her shoulder blades.

284In terms of past history, he noted that, prior to the transport accident, the plaintiff had been diagnosed with work related trochanteric bursitis, which had been treated with cortisone injections.  At the time of that accident, she was in a return to work program and had reached 24 hours per week, but that had not continued.

285When re examined in February 2016, the pain between the plaintiff’s shoulder blades had improved but continued. She took Panadol Osteo two tablets three times a day.

Dr Joseph Slesenger, Occupational Physician

286On examination in October 2015, the plaintiff told him that she had ongoing pain in her anterior chest wall, which was intermittent, mild and aggravated by deep breathing.  She had upper back pain of four to five out of ten, which was constant and dull in character.  It disturbed her sleep.

287The plaintiff told him that, at the time of the transport accident, she had just recovered from a work related left hip injury, bursitis, which had lasted for 10 months.  She had remained at work during this time, but had been allocated pre injury hours, but was working lighter duties.  She gradually increased her duties until she had increased to her normal duties at the time of her injury.  She had been cleared by her physiotherapist and had been discharged from care.

Mr Stephen Doig, Orthopaedic Surgeon

288When seen in October 2015 for an impairment assessment relating to the thoracic spinal injury, the plaintiff told him that her cervical spine was not too bad.  It was still a little bit stiff.  She continued to get an ache in the upper part of her thoracic spine.

289The history was that at the time of the transport accident, she was working as a picker and a packer approximately 30 hours a week, but was actually on a return to work program for the trochanteric bursitis, which was apparently a work related injury.  Since the transport accident, she had not returned to work, primarily because of her injury to her upper back.  She said she felt as though she was capable of doing her light duties job, but did not feel as though she could do a picker and packer job. 

Work injury

Dr David Ho, Occupational Physician

290On assessment in May 2012, the plaintiff was then working normal duties with API.  She was not working in the trolley area.  She had been taking extra or additional rest breaks and was currently working five hours a day.  She was reportedly coping at work and found the extra rest breaks helpful.

291Initial treatment included Mobic, which was reportedly beneficial.  When asked of progress to date, she stated it was good currently, but her symptoms had not gone completely.  Currently, she did not have any symptoms in her left lower back, hip or left leg. She was then reporting minimal symptoms in her left hip and thigh.

292Clinical examination was essentially normal without any local tenderness in the left hip and he thought the plaintiff had recovered well from that condition.

293The plaintiff was currently at work on selected pre injury duties and a worksite assessment was planned.

294He thought the plaintiff had clinically recovered well from the trochanteric bursitis, which presented in August 2011.  She was almost on her pre injury hours.

295At a worksite assessment by Dr Ho on the 4 June 2012, the plaintiff then told him that her left hip had improved further, having in May told him that she had minimal symptoms in her left hip and thigh.

296He believed the plaintiff was currently doing essentially her pre injury duties, but only in the CLS area.  With good progress to date and good improvement since last seen, he believed she was able to rotate increasingly to her other duties in the trolley, picking, binning, or the pigeonhole picking section.  He suggested she continue with an additional rest break for a further month and it was likely she would be able to resume her pre injury duties with regular rotations during her pre injury hours within one to two months.

Dr Gerald Powell, Consultant Orthopaedic Surgeon

297When seen for an AMA assessment in January 2016, the plaintiff told him that she told him that she had suffered neck pain since the transport accident, which was aching in nature and associated with stiffness.  The pain radiated down to between the shoulder blades.

298She told him of her injury at work.  She attended physiotherapy for both complaints and stated her symptoms of lower back pain and left hip pain were gradually resolving by the time of the transport accident.  She stated her symptoms would still occasionally play up.

Mr Paul Kierce Orthopaedic Surgeon

299In August 2017, Mr Kierce saw the plaintiff for an AMA assessment relating to the work injury.

300The plaintiff indicated she still suffered with right sided lower back pain and pain on the outer aspect of the left hip with some pain on the outer side of the right hip. While she suffered with some constant right sided low back pain, she felt her  major spinal problem was pain between her shoulder blades that started after the transport accident.

301On examination, there was some restriction of lumbar movement.  

302He diagnosed a soft tissue injury to the lumbar spine and possible trochanteric bursitis and aggravation of early degenerative arthritis of her left hip.

Overview

Compensable injury

303There was no dispute that the plaintiff suffered injury at work in September 2011.[95] However, causation was in issue – namely, whether, nearly 12 years later, any lower back issues remain referable to that work injury.[96]

[95]T83

[96]T82

304While attention must be focussed on the impairment, not the injury,[97] diagnoses in this case include a soft tissue injury and aggravation of spondylosis or spondylolisthesis.[98]

[97]Humphries v Poljak (1992) 2 VR 129 at 134

[98]Dr Akil, Professor Bittar, Mr Doig and Dr Mittal 

305Soon after the work injury in early 2022, the plaintiff’s GP at that time, Dr Haller, diagnosed chronic regional pain both in the lumbar and thoracic spine. 

306Soon after the work injury, in late 2011, the plaintiff’s main symptoms and treatment seemed to be more focussed on her left hip, which was diagnosed as bursitis. There was no radiology of the lumbar spine until 2018, but the hip was investigated in 2011.[99]

[99]T83

307A left hip injury is not a part of the subject application, but it is a condition with which the plaintiff still has some issues.[100]

[100]      Plaintiff’s affidavits sworn 23 April 2022 and 28 July 2023

308A lumbar CT scan in December 2022 was reported to show degenerative changes at L4-5 and some spondylolisthesis at L5-S1, but no nerve root involvement and no bulging. There has been no lumbar MRI undertaken although recommended by two examiners. 

309The defendant’s position was that if it was accepted there was a soft tissue injury, there was a lot of work to be done to get a causal connection[101] - “At best, there is an amorphous soft tissue injury which makes it very difficult hang your hat on 13 years later.”[102]  

[101]T88

[102]T89

310The plaintiff’s case was her lumbar condition improved substantially, but incompletely.  Thereafter, she had intermittent low grade symptoms about which she continued to complain to treaters and medico-legal examiners.[103]

[103]T110

311The plaintiff’s lower back condition was overshadowed by the rather nasty and traumatic injuries sustained in the transport accident.  It was her case that she made a gradual and significant recovery from those injuries, and she also developed gradual worsening of her lower back condition which had never healed and continued to trouble her.[104] 

[104]T111

312For leave to be granted in relation to any lumbar impairment, I must be satisfied that any consequences thereof referable to the work injury are serious and permanent as at the date of hearing.

313Determination of these issues involves a consideration of the plaintiff’s spinal condition in the 14 months or so post work injury before the transport accident and the progression thereof post the transport accident to the date of hearing. 

314The plaintiff’s credit is a very important factor in this analysis.

Credit

315As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[105]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[105] (2010) 31 VR 1 at paragraph [12]

316The defendant’s case was there “was a lot to answer” about the plaintiff’s credit. 

“It is singing to a master who is offering compensation and it seems to change, in terms of the verse, according to who is answering to which master; that is, during the TAC claim the back is gone. The TAC claim settles, the back is back; the thoracic has gone”.[106]

[106]T98

317It was submitted that “was too cute to be credible”.[107]  The plaintiff could not have it both ways. She could not say on oath that back pain was ongoing after the work injury yet depose in her Section 93 affidavits that she was dancing and engaging in other activities at the time of the transport accident. Her credit was impeached whichever way you looked at it. Both answers worked against her in this case.[108]

[107]T98

[108]T99

318Further, doctors who had seen the plaintiff for her TAC case considered the thoracic condition from that accident would beset her for the rest of her life.  That case was settled and then there was a hiatus in treatment, and the plaintiff claims a remarkable recovery of thoracic pain which cannot be credible.[109]

[109]T99

319It was submitted the history and presentation of this case has shown that the plaintiff has not been entirely frank about the consequences of her thoracic spine injury.[110]  If it was accepted she was exaggerating these complaints, the question was posed, why not take the same view of her depositions with respect to her current lumbar condition, where she is saying back pain impedes everything.[111] 

[110]T108

[111]T99

320Any attempt to blame her solicitors for the unsatisfactory affidavit material should be disregarded as the plaintiff herself was the author of a number of statements about her level of activity at various times, not her solicitor.

321In response, counsel for the plaintiff submitted the plaintiff gave every effort to give frank and honest answers to questions and gave direct and responsive answers in cross examination.  She did not prevaricate, she was not evasive.  She made a number of concessions against her own interests, such as being very frank there had only been a very small reduction in her work hours from 25 to 30 hours pre to 24 hours post injury.  If she was seeking to mislead, she could have easily overstated this without fear of contradiction because there was no evidence.[112] 

[112]T138

322Similarly, she was very frank about the extent of her improvement before the transport accident and accepted, without hesitation, her low back had improved considerably.  She gave frank concessions about the nature and extent of her transport accident injuries and freely accepted what she had told doctors as being largely correct.[113]

[113]T139

323It was submitted the plaintiff was a relatively unsophisticated woman, certainly a non lawyer, who relied on the advice and expertise of her then lawyers in making her affidavits.[114] 

[114]T124

324Most importantly, her evidence that she had persisting pain from the time of the work injury was corroborated by the contemporaneous complaint to doctors well before this litigation and the Court should have no hesitation in accepting what is recorded is accurate.[115]

[115]T139

325It was submitted if the evidence was carefully analysed, in particular, the clinical records, but also the complaints the plaintiff made to medico legal witnesses, there is a pattern of continued complaint of lower back pain to treaters, albeit intermittent.[116]

[116]      T125

326It was however conceded the plaintiff’s first section 93 affidavit in particular was not wholly satisfactory.[117] The plaintiff had difficulties with that affidavit, in particular her description of a level of recovery from her work injury and her involvement before the transport accident in a range of activities.[118] 

[117]T121

[118]T122

327It was submitted the second affidavit section 93 was less problematic. It was a question of what was omitted, rather than what was expressly stated.[119]

[119]T125

328For a number of reasons, I had significant concerns about the plaintiff’s credit and the reliability of much of her evidence, amplifying the consequences of her work injuries while downplaying her significant thoracic problems unrelated to the present application.[120]

[120] [2008] VSCA 260

329The plaintiff’s evidence overall about both accidents cannot be reconciled. Often, she painted a picture of disability and recovery that suited the application under consideration.

330I do not accept she did not mention her lumbar pain to examiners as she was told by them they were not interested and told her not to mention it. The likelihood is lumbar pain was not troubling her to any significant extent when examined.

331The plaintiff is a relatively uneducated woman. As plaintiffs do not compose their own affidavits, any omissions of relevant matters may be understandable. That is not the case however, with positive statements made by the plaintiff in various documents before the Court in this application, in particular her letter to the other driver, her section 93 affidavits and other statements in support of her transport accident impairment claim setting out the seriousness of her transport accident injuries and the recovery from her work injury.[121] 

[121]T125

332In stark contrast to the plaintiff’s statements about recovery from the work injury in the context of her transport accident claim, her very detailed affidavits in this application referred to almost every attendance on a physiotherapist and GP for her lumbar issues before and after the transport accident.

333For the purposes of this application, the plaintiff gave a history to Dr Mittal and Professor Bittar that at the time of the transport accident, she was struggling with her levels of lumbar pain, having difficulty with sleep, continuing analgesic medication.[122] 

[122]T92

334As counsel for the defendant submitted, “the impression conveyed to those doctors was that in the first 14 months the plaintiff had a consistency of pain, difficulty going to work and relied on medication, together with treatment. When one looks at the contemporaneous records, it is not so colourful.”[123]

[123]T92

The first 14 months post work injury

335Counsel for the defendant was critical of the absence of any report from Dr Sigalov, the plaintiff’s GP at the time. An inference was sought that it would not be of assistance.[124] 

[124]T85

336A similar point was made in relation to the physiotherapist, Nicholas Graham-Bowman, who also did not provide a report relied on by the plaintiff. His 2011 reports relied on by the defendant focussed on hip problems. He simply mentioned “intermittent lower back pain”. Further, the plaintiff reported being in a lot less pain following the injection into her left femur in November that year.  Even in the August 2012 letter of discharge, the physiotherapist made no specific reference to any lumbar spine complaint.    

337That was the only material relied on by the plaintiff. There was no radiology, no report from the GP diagnosing the back condition and sporadic attendances on a physiotherapist for back pain.[125] 

[125]T86

338The most qualified contemporaneous opinion was from Dr Ho who reported in May 2012 that the plaintiff did not have any symptoms at that stage in her lower back, hip or left leg.  He also thought she had clinically recovered well from her bursitis.[126]

[126]T87

339The defendant also relied on the plaintiff’s own statements as to her recovery from her lumbar injury as at the date of the transport accident contained in her TAC claim documentation. It was submitted “the true picture from her Section 93 affidavit was that, at the time of the transport accident, she was good, she was having some physiotherapy, but essentially maintaining full activities.  So, in terms of progression over that early period, it is far from the stable deterioration that doctors have seemingly relied on.”[127]

[127]T94

340In response, counsel for the plaintiff submitted the lower back condition had not “almost resolved” at the time of the transport accident as Dr Powell described although Dr Thomas’s description of a substantial recovery was accepted.[128] 

[128]T121

341In various histories, there was more than a reference to occasional lumbar pain after the work injury - the best example was Professor Bittar in his TAC report and also references by Dr Thomas, Dr Epstein and Dr Powell, and Mr Kierce in their reports.[129]

[129]T118

342It was also submitted Dr Ho’s report should have little weight because it related to the period in 2012.[130]  The physiotherapist’s records were more helpful than Dr Ho’s report[131] although it was acknowledged there was a period of quiescence at that time.[132]

[130]T111

[131]T135

[132]T136

343Further, while there were no reports from the plaintiff’s GP or physiotherapist, the plaintiff relied heavily on contemporaneous complaints of lower back pain in the physiotherapist’s notes leading up to the time of the transport accident.[133] It was submitted the physiotherapist’s discharge in August 2012 was a snapshot in time and the plaintiff was feeling substantially better by that time, feeling “close to pre injury.”[134] 

[133]T111

[134]T114

344It was conceded there was no doubt, at that time, the plaintiff’s back condition had improved quite significantly, but the clinical records disclosed a substantial setback after the discharge.  On 12 September, she complained her back had been getting sore at work.  Four days later, she reported there was some improvement, but persisting symptoms on 25 September. Her back and hip remained “achy” on 18 October. On 1 November, her back was feeling better and then two weeks later, “it has been very sore.”[135]  An invoice established an attendance three days before the transport accident, although there was no note of this attendance.[136]

[135]T115

[136]T116

Findings

345I accept that there was a significant level of improvement in the plaintiff’s lumbar condition leading up to the clearance in August 2012 by the physiotherapist for normal duties, except trolley work. At that time, the plaintiff told him that she was at pre injury level in regard to her pain and function.

346Significantly, there was no report from the physiotherapist corroborating the plaintiff’s account of the reason for the clearance in her affidavits and viva voce evidence.    

347Early treatment and investigations focussed on the plaintiff’s left hip more than her lumbar spine. By May 2012, when seen by Dr Ho, active movements in her thoracolumbar spine were pain free to full range. She did not have any symptoms in her left lower back, hip or left leg. Further improvement was noted the following month at the worksite assessment.

348By the time of the transport accident, the plaintiff was working similar hours to before her work injury. The only task she was not doing was the very heavy trolley work – a job no one liked doing because of its physical nature.

349Physiotherapy treatment in the weeks after the August clearance showed her lumbar condition fluctuated until the time of the transport accident. She was able to perform in the dance concert in November 2012.

350Overall in that first 14 months, I accept the plaintiff’s lumbar condition was vastly improving, she working her normal hours and doing almost normal duties, without restriction as Dr Ho confirmed. This was a far cry from the picture she painted to medico legal examiners in the present application.

351The plaintiff had also told medico legal examiners Dr Slesenger, Dr Thomas and Dr Epstein in the TAC case of her improvement after the work injury and told Dr Powell, that her work injury had almost resolved by the time of the transport accident.

352In my view, medical opinion such as Professor Bittar and Dr Mittal, supportive of an ongoing involvement of the work injury in any ongoing lumbar condition, was largely based on inaccurate histories given by the plaintiff as to her level of functioning as at the time of the transport accident.

353Dr Akil, while knowing of the transport accident, was not told by the plaintiff of any restrictions relating to it so he was unable to do an apportionment as requested.

354In his supplementary report of August 2023, having been asked to comment on his two examinations of the plaintiff, first in 2015 for the transport accident and more recently in May this year for the work injury, Mr Doig did not provide any satisfactory explanation why any lumbar injury suffered at work 13 years ago continued to play a part in the plaintiff’s current spinal presentation.  

355I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors[137] that in this type of case, a plaintiff’s credibility is relevant not only to whether her evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[137][2006] VSCA 254 at paragraph [14]

356Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to her credit and what was the true state of her lumbar spine at various times.

The transport accident

357The plaintiff was involved in a high impact transport accident in December 2012 in which she fractured her sternum and suffered an endplate fracture at T2. This event is relevant to the present application as it is a supervening significant injury which was the focus of the plaintiff’s spinal complaints and treatment for the next five years.   

358Further, while the plaintiff maintains she did not injure her lumbar spine in that accident, on a number of occasions she appears to have given a contrary account.

359As counsel for the defendant submitted, on her case, the plaintiff had a very vulnerable back at the time of the transport accident, yet surprisingly no increasing symptoms thereafter. However, her TAC claim form identified a back injury. Her statement for the impairment protocols also mentioned back injury. Further, Professor Bittar noted an exacerbation of lower back pain as a result of the transport accident when he saw the plaintiff in 2015.

360Counsel for the defendant submitted in those circumstances, there was a query whether any claimed progression in lumbar symptoms was entirely due to the work injury.[138]

[138]T96

361While this point was raised by the defendant, its real focus in this application was on the lack of complaints of lumbar pain in the period 2013 to 2017 when the plaintiff was being assessed for her TAC claim.

362It was submitted that if the plaintiff had ongoing continuing back pain, while it might not have been front and centre in her mind when she was having treatment for her thoracic spine, it would have been referred to in reports.  It was remarkable to suggest the plaintiff had been told by examiners not to mention any lumbar complaint. Further, when her lumbar spine was examined, in many of the examinations, there was no lower back tenderness and normal posture.[139]

[139]T97

363It was submitted the plaintiff’s reliance on clinical notes in this period was “cherry picking.” These were incredibly modest and did not support what the plaintiff said in the witness box that her back pain never resolved, continued to be bad and to impeded.[140] 

[140]T100

364Further, of significant assistance, when Mr Xenos saw the plaintiff in June 2014, he made no mention of the plaintiff making any lumbar complaint.[141] 

[141]T100

365It was submitted there was not a consistent progression of lumbar symptoms. The medico-legal opinion did not assist in this regard – “So, even on the best case, there is a soft tissue injury, the plaintiff had some grumbling lower back pain, intermittent, she had the car accident, which took her attention away.”  She then had lower back on a sporadic basis and then, in 2020, had what appeared to be, quite significant leg pain, and that is where a lot of her problems lie.[142]

[142]      T102

366On the plaintiff’s behalf it was submitted, examining all the records, there had been a waxing and waning, improvement, worsening, improvement, worsening, and that goes to some way explaining what the plaintiff was telling doctors.  There was a further worsening in 2020, which was not controversial.[143]

[143]T134

367The central proposition was the plaintiff’s lumbar condition waxed and waned following the transport accident. Her condition was intermittent and there were periods of quiescence which went some way to explaining the nature and extent of the reportage.[144]

[144]T136

368In 2015, the plaintiff told Dr Epstein she had occasional lower back pain. Dr Powell reported in 2016 that the plaintiff’s back was still occasionally playing up.[145]

[145]T133

369It was submitted there was clearly a period of relative quiescence in 2014 to 2015, not a complete cessation of complaints, nor a complete resolution of the injury.  There was at least something to be seen in each of the calendar years as the GP or physiotherapist reported.[146] 

[146]T132

370The lack of lumbar complaint to Mr Xenos in 2014 could be explained on the basis of what was troubling the plaintiff on the day of that examination.[147] 

[147]T126

371There was an increase in attendances in 2016, which, it was submitted, constituted the first sign of a spontaneous worsening.[148] 

[148]T132

372The year 2017 seemed to be a period of quiescence, with solitary attendances on the GP and physiotherapy respectively, but in August that year, the plaintiff told Mr Kierce she was still suffering right sided lower back pain.[149]   

[149]T118

373There was a recurrence of symptoms in 2018, with increased treatment, with a waning in 2019.

374It was submitted Dr Haller was in the best position to opine as to the plaintiff’s progress having been the treating GP since August 2016 and had access to the entire clinical file. She was not required for cross examination.[150] 

[150]T127

375Dr Haller considered the back injury was “parked” because of the severity of the transport accident injuries and, as at 2016, the plaintiff continued to have discomfort in the lower back and hip, and Dr Haller requested WorkCover fund more physiotherapy. She also referred the plaintiff for more physiotherapy in 2018, for persistent left hip and lower back pain.[151]

[151]T129

376Dr Haller’s most recent report was relied on in terms of causation.  She thought the plaintiff had persisting lower back pain related to her work duties and also the transport accident – the later which counsel acknowledged was a difficulty in relation to any Peak point.[152]

[152]T129; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67

377It was submitted there was spontaneous worsening, gradually, from 2016 onwards, particularly in 2020, which has been described by doctors of lumbar spondylosis or lumbar spondylolisthesis, “which the doctors accept implicitly as being present all the way through.”[153]

[153]T137

378It was submitted there has been a persistence of symptoms which must be the genesis of the plaintiff’s present condition – “What is presently seen are manifestations of what had its genesis in 2011.”[154]

[154]T138

Findings

379I do not accept the “waxing, waning” scenario put on the plaintiff’s behalf.

380In my view, the transport accident occurred at a time when any lumbar issues had largely resolved as discussed above,

381During the next five years or so, the plaintiff’s focus, in terms of both symptoms and treatment was on her thoracic spine and other injuries from the transport accident, not her lumbar spine.

382There was nothing stopping the plaintiff telling doctors whom she saw for her TAC case that she had persisting significant lumbar symptoms if that in fact was the case. Her failure to do so, in my view, was because any lumbar issues were only of minor concern and she was more interested in emphasising her thoracic complaints for the purposes of her TAC claim. 

383Further, I do not accept the plaintiff had made a substantial recovery from her transport accident injuries by 2017 given the level of complaint to examiners about those injuries leading up to the settlement of her TAC claim and the rather pessimistic prognosis by those examiners as to her transport accident injuries. 

Recent developments  

384A further complication in this case was the change in the plaintiff’s lumbar and leg symptoms that she claims occurred in about 2020.  For the first time, the plaintiff started to experience significant leg pain. She was not able to identify a precipitating event for leg pain nine years after the work injury.[155]

[155]T101

385Counsel for the plaintiff submitted the onset in 2020 of pins and needles was part of the whole process - it was a spontaneous deterioration in her condition.[156] However, counsel did ultimately concede there was no express medical explanation for this situation.[157] 

[156]      T134

[157]T135

386In my view, there was also no medical analysis or explanation as to what had happened to cause a worsening in the plaintiff’s lumbar condition. The plaintiff was also unable to provide an explanation. In those circumstances, I am not satisfied that this worsening or onset or leg symptoms is referable to the work incident 13 years ago. 

Consequences

Pain

387As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[158] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in Court and to doctors.

[158]      (Supra) at paragraph 11

388The principal consequence relied upon was back pain associated with leg symptomology, the frequency and severity of that pain, which, in itself, was, it was submitted, at least very considerable.[159]

[159]      T140

389However, while the plaintiff described constant low back pain in her affidavits, she recently told Professor Bittar that pain was intermittent and agreed in cross examination this is the case.[160]

[160]T108

390Leg pain is of recent origin and cannot in my view be referable any incident at work.  

391The plaintiff does not experience constant pain as a result of her work injury requiring regular painkilling medication.[161]

[161]      Stijepic v One Force Group Australia Pty Ltd (2009) VSCA 181 at paragraph 48

Treatment

392The plaintiff has had limited treatment for her lumbar spine.

393Initially, treatment was mainly physiotherapy and later on chiropractic.

394The first lumbar investigation was in 2018 – seven years after the work injury. An MRI has been suggested by two examiners but has not been undertaken.

395The first specialist lumbar referral was to neurosurgeon, Mr Akil, in March 2021, 10 years after the work injury. He found a normal range of lumbar movement and then thought functional limitations were not really that bad. He did not find a significant impairment that required surgery and did not need to see her again.

396Sports physician, Dr March, administered two epidural injections in December 2021 and March 2023 without any real improvement.

397Counsel for the plaintiff conceded he could not point to the prescription of any significant medication before the 2020 worsening in the plaintiff’s condition.[162] The plaintiff currently takes Gabapentin, 300 milligrams a day; Panadol Osteo was required; Panadeine Forte was required and Endep.

[162]T144

Other consequences

398Counsel for the plaintiff did not “press the work issue” acknowledging the plaintiff had nearly got back to a normal job and then had not worked at all since the transport accident.[163] 

[163]T143

399While the plaintiff deposed her back injury gave her problems with domestic activities, sleep and dancing, when taken to her section 93 affidavits detailing her level of domestic and sporting activity at the time of the transport accident, counsel for the plaintiff conceded he was “hard pressed to take it any further”.[164]  The Court was asked to basically accept the plaintiff’s evidence.[165] 

[164]T142

[165]T143

400The plaintiff acknowledged she continues to dance, which is an enjoyable hobby.[166] She continues to shop and drive.[167]  

[166]T109

[167]T109

401In my view, the consequences of any lumbar impairment related to the work incident do not meet the statutory test of seriousness.

402Further, on the plaintiff’s own evidence, she still has some thoracic pain. Dr Haller still attributes the plaintiff’s chronic pain to both the work incident and the transport accident.  

403In Peak Engineering & Anor v McKenzie,[168] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[168] [2014] VSCA 67

404In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[169]

[169] Ibid at 1

405The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the non compensable injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[170]

[170] Ibid at 2

406This exercise is not required in the present case.

407Taking into account all the evidence, I am not satisfied that the plaintiff has a work related impairment of the lumbar spine, the consequences of which meet the statutory definition of “serious” as at the date of hearing.

408Accordingly, the plaintiff’s application for leave to bring proceedings for damages for pain and suffering is dismissed.

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