Boulter v Bendigo Kangan Institute
[2023] VCC 513
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-00680
| KYLIE BOULTER | Plaintiff |
| v | |
| BENDIGO KANGAN INSTITUTE | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 March 2023 | |
DATE OF JUDGMENT: | 5 April 2023 | |
CASE MAY BE CITED AS: | Boulter v Bendigo Kangan Institute | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 513 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – sub-paragraph (a) – injury to lumbar spine – pain and suffering – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Davidson v Transport Accident Commission [2015] VSCA 12
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Slater and Gordon Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HER HONOUR:
Introduction
1On 26 August 2019, the plaintiff, Mrs Kylie Boulter, suffered an injury to her back at work when she slipped and fell on a wet floor.[1]
[1] Plaintiff’s Court Book (“PCB”) 7
2This is a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff. She seeks leave of the Court to commence common law proceedings pursuant to paragraph (a) of the definition of “serious injury” in s325(1) of the Act for pain and suffering for an injury to her spine.
3The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[2] the question whether an injury is a “serious injury”, considers, when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as “at least very considerable” and certainly more than “significant” or “marked”?
[2][1992] 2 VR 129 at 140
4The plaintiff has a compensable back injury, the diagnosis of which is an aggravation of a degenerative condition, namely a synovial cyst in the low back.
5The defendant disputes that the plaintiff’s impairment meets the relevant statutory threshold of being at least very considerable and certainly more than significant or marked in relation to pain and suffering.
6Further, the defendant raised the plaintiff’s credit as being in issue in respect to both the history and symptoms described to doctors and when compared with her conduct in surveillance footage.
The Plaintiff’s case
7The plaintiff provided two affidavits, dated 18 October 2021 and 3 February 2023, in support of her application.
8The plaintiff is forty-nine years old. She qualified as a veterinary nurse and worked in this field for 17 years. She commenced working for the defendant as a teacher in February 2018 and at the time the injury occurred she was working part time, 24 hours a week.[3]
[3] PCB 7
9Following the injury, between September 2019 and November 2019, she worked at Melbourne Polytechnic TAFE but stopped due to back pain.[4] On 15 February 2020, she had surgery on her back performed by Mr Akil. In late April 2020, she went back to work as a veterinary nurse for three weeks before she stopped because of back pain.
[4] Transcript (‘T’) 12-13
10In July 2020, she returned to Melbourne Polytechnic TAFE, and also worked part time at the Kilmore Veterinary Clinic as the practice manager. She was made redundant from Kilmore Veterinary Clinic in July 2021 but was offered a position there as a veterinary nurse. Due to the position involving prolonged standing, lifting of animals and cleaning components, she was not able to accept.[5] Thereafter, she increased her hours at Melbourne Polytechnic TAFE and she currently works there full time in a teaching role.
[5] PCB 10
11The plaintiff’s Workcover claim was accepted. She was referred for investigations including an MRI scan of her lumbar spine and to neurosurgeon, Dr HazIm Akil who performed her back surgery.
Credit
12The plaintiff’s credit was raised as an issue by the defendant.
13Her credit was raised because it was put that she had told doctors, such as Dr Bittar,[6] she had no back pain before the injury. In cross-examination she stated, “I had a really strong back. I used to lift dogs all day long.”[7]
[6] PCB 124
[7] T 15-16
14The plaintiff was then referred to notes from her chiropractor at the Northern Centre for Natural Healing,[8] indicating she attended in 2017 as well as in January and July 2019, for mid back pain. In this regard, when asked if she had back symptoms before her fall, she said the symptoms were on “a different side…up near my ribs…it was just a bit tight, you know”.[9]
[8] Defendant’s Court Book (“DCB”) 30
[9] T 16
15She also agreed that prior to her injury on 9 August 2019, she had seen her general practitioner, Dr Maddage for hip pain, which had been investigated by way of an X-ray.[10]
[10] T 18
16I was impressed by the plaintiff as a witness. She was forthcoming and articulate, and I was not of the view she embellished her evidence. I am not of the view the earlier chiropractic or medical references to back or hip pain impacted on her credit as those pain sites were at different locations to her current injury for which she has had surgery.
17I will consider the surveillance footage in more detail later, however I am not of the view it is contrary to her evidence or disturbs my view of her credit.
Do the consequences meet the test for a “serious injury”?
18As noted, the onus of proof is on the plaintiff, and I have referred to the test in Humphries and Anor v Poljak.[11]
[11][1992] 2 VR 129 at 140
19The experience of pain and the four factors to consider in its evidentiary assessment are referred to Haden Engineering Pty Ltd v McKinnon,[12] however I also note that the assessment of pain and suffering consequences “is a question of fact, degree and value judgment”.[13]
[12] [2010] VSCA 69 at [11]
[13] [2010] VSCA 69 at [51]
Physical pain
20In the plaintiff’s first affidavit dated 18 October 2021, the plaintiff stated she suffers from constant daily back pain and sciatic pain in her right leg. The back pain is aggravated by any prolonged sitting, standing or walking. She avoids activities requiring repetitive bending, twisting or heavy lifting.[14]
[14] PCB 8
21Her sleep is disturbed most nights by her back and leg pain.[15]
[15] PCB 9
22She suffers from faecal incontinence as a result of her back injury and avoids eating during the day so as not to have an accident at work.[16]
[16] PCB 9
23Other restrictions include avoiding mopping and limited capacity for vacuuming because prolonged standing and bending aggravates her back.
24She lives on 15 acres and she used to be very active cutting and selling her own firewood, which she can no longer do. Further, she can no longer whipper snip.
25She keeps horses, and she used to enjoy horse riding, for example she would take six-hour trail rides, once a month or every two months. Although in her affidavit she stated she could only ride her horse to the front gate,[17] in her evidence she said her back is too painful for any horse riding.[18]
[17] PCB 9
[18] T 29
26The plaintiff’s major passion pre-injury was grooming show dogs. In 2017, she won an award for her Australian terriers at the Royal Melbourne Show. She can no longer groom bigger dogs such as Bearded Collies, or German Shepherds.[19] She is unable to do grooming from home or voluntary work such as de-sexing and installing microchips because of the prolonged standing and bending involved whilst working at the operating table.[20]
[19] PCB 9
[20] PCB 10
27In her second affidavit dated 3 February 2023, she confirmed her continual back pain and sciatic pain in her right leg.[21] She also confirmed her sleep is frequently disturbed by pain. She stated in cross-examination, “I am not a complete insomniac but it is disturbed by back pain.”[22]
[21] PCB 13
[22] T 28
28She continues to suffer from faecal incontinence, as well as not eating during certain hours of the day at work. She takes extra underwear to work in case of an accident.[23]
[23] PCB 13
29She still has the same restrictions described above when doing housework and working around her property. She also continues to be very restricted regarding her interests in riding horses and grooming dogs.[24]
[24] PCB 13-14
30Whilst she is able to work full time as a teacher, not being able to work as a veterinary nurse, given her love of animals, is a huge loss for her.[25]
[25] PCB 14
Medical treatment
31On 15 February 2020 the plaintiff had surgery.[26] She had treatment from a chiropractor until March 2020, the first COVID-19 lockdown.
[26] PCB 8
32She stated she was taking 15 mg of Mobic every day, as well as applying CPD oil daily.[27]
[27] PCB 8
33In her second affidavit, she stated she attends general practitioners at the Goulburn River Practice Group from time to time for prescriptions for her back pain.[28]
[28] PCB 13
34She currently takes two tablets of Aspirin daily and takes Mobic about three times a week.[29]
[29] PCB 13
35She currently takes “just vitamins, minerals and exercise”, and that she does plenty of exercise and this assists with her sleep.[30]
[30] T 27
Medical evidence regarding pain
36The plaintiff was referred to pain specialist, Dr Gavin Weekes. In his report dated 2 March 2023 he states the plaintiff described her pain as:
“…ongoing lower back pain which could still radiate down her right leg to her foot, and it was associated with paraesthesia and numbness and weakness. She described back pain worse than leg pain. She identified in particular standing could exacerbate her symptoms.”[31]
[31] PCB 85
37The plaintiff was referred back to her treating neurosurgeon Dr Akil, by Dr Weekes because of her persistent pain in her lower back as well as her right leg. Dr Akil reported to Dr Weekes in a letter dated 16 January 2023 and noted:
“Surprisingly, she does not have much of a residual back pain as she describes it as more of a tightness than anything else. When I examined her today, I noted she walks in an antalgic gait.”[32]
[32] PCB 51
38Dr Akil agreed with Dr Weekes’ recommendation of a diagnostic L4 block rather than “rushing into a surgical solution here as widening the foramen will require a fusion procedure…”.[33]
[33] PCB 51
39In a further report dated 3 March 2023, Dr Akil recommended the plaintiff proceed with a right L4 diagnostic nerve sheath block. [34]
[34]PCB 54
Analysis of impairment consequences
Work
40In Stijepic v One Force Group Aust Pty Ltd & Anor,[35] the Court of Appeal stated:
“… if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
[35] [2009] VSCA 181 at paragraph [47] (Ashley JA and Beach AJA)
41The fact the plaintiff is able to work full time is relevant to the question whether the pain and suffering consequence of the injury is ‘serious’, but it is not determinative, and it is necessary to consider the evidence as a whole.[36]
[36] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26] (Ross AJA)
42In Haden Engineering Pty Ltd v McKinnon,[37] the President of the Court of Appeal noted “the cases recognise that some plaintiffs may be more ‘stoical’ than others,” and that the injury is not to be viewed as any less serious merely because he/she manages to remain more active than might have been expected given the level of pain. It could be said, in effect, a plaintiff has been “prepared to put up with his pain and suffering and get on with his business as best he can”.[38]
[37]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [13] (Maxwell P)
[38] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3] (Nettle JA)
43She is currently working full-time as a teacher at Melbourne Polytechnic TAFE. I accept the plaintiff is stoic and hardworking. I note there is no evidence of any modifications required to her work routine to accommodate her injury.
44As a result of the injury, the plaintiff can no longer work as a veterinary nurse. She describes this as a huge loss as she loves working with animals. I note she had moved into teaching in 2018 because in veterinary nursing, the pay was so low and there was a high suicide rate, she said “I was done”.[39]
[39] T 14
Faecal incontinence
45The defendant disputed her faecal incontinence was caused by the workplace injury. Although the plaintiff’s counsel submitted regardless of this, the plaintiff still met the threshold test of having a serious injury, I turn to consider the evidence as to whether it was caused by the workplace injury.
46Dr Bruce Low, an orthopaedic surgeon, prepared a medico-legal report for the defendant dated 16 August 2022. He noted the plaintiff had no history of bowel incontinence, “which came on after the accident suggesting a partial cauda equina lesion.”[40] He stated:
“I do not really understand what is causing the bowel incontinence but it certainly needs to be looked into by a neurosurgeon or neurologist or gastrointestinal lower end expert.”[41]
[40] DCB 11
[41] DCB 15
47On the basis of this advice, the defendant obtained an opinion from Mr Myron Rogers, neurosurgeon, who prepared a second report dated 1 March 2023.
48He notes the plaintiff had surgery on 15 February 2020 and on 9 August 2021 she reported to Goulburn Group Medical Practice she had ‘mild faecal incontinence since the procedure’, and the entries made on 7 July 2022 and 15 July 2022 report she has been having faecal incontinence.[42] Whilst noting multiple potential causes, in his opinion it has no connection to the spinal condition. He stated that where it is due to spinal conditions such as spinal cord injury or cauda equina syndrome:
“…it does not occur in isolation, bladder dysfunction will inevitably accompany it as the anal and external urethral sphincters share a common segmental derivation.”[43]
[42] DCB 28
[43] DCB 28
49The defendant’s submission was that there was no connection between the injury and the condition. The first mention of it was on 9 August 2021.
50In cross-examination, the plaintiff stated in fact prior to surgery she had an episode of faecal incontinence and was advised by her doctor to go the Emergency Department.[44] Her evidence was no-one was interested, and she agreed she had not been referred for any treatment or investigations.[45] The plaintiff’s counsel submitted given the COVID-19 pandemic, “she wouldn’t be the only person who had some other health issues slip through the system.”[46]
[44] T 24
[45] T 25
[46] T 65
51Although the plaintiff stated in evidence Dr Akil told her the faecal incontinence was caused by nerve damage,[47] this opinion is not noted in his reports. Dr Low’s report queries its cause, as noted above. Dr Bittar attributes the aggravation of her lumbar spondylosis/synovial cyst and persistent pain following spinal surgery to the work injury.[48] He does not give an opinion regarding causation of her faecal incontinence. Further, Dr Rowe notes “the onset of faecal incontinence is unfortunately a lasting and permanent consequence.”[49] This is not an opinion regarding causation and given he is an occupational physician I am not convinced of his expertise on this subject. There is no medical evidence to challenge Mr Roger’s opinion.
[47] T 25
[48] PCB 125
[49] PCB 121
52There is scant evidence regarding the regularity and extent of faecal incontinence suffered by the plaintiff in either her affidavits or in the medical histories, although Dr Bittar notes she described it as ‘leakage’,[50] and Mr Rogers refers to ‘occasional episodes.’[51] Having noted that, I am of the view even the mildest case would be a significant consequence.
[50] PCB 124
[51] DCB 22
53Although there is a time proximity to the work injury and the symptom occurring, in the absence of a medical opinion regarding causation, given Mr Rogers’ opinion, I do not find the plaintiff has established on the balance of probabilities causation with respect to this symptom.
Medication regime
54The plaintiff’s counsel referred to Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd,[52] where her Honour stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[52][2007] VSCA 267 at paragraph [199]
55The plaintiff’s pain management regime comprises of two Aspirin per day, and Mobic three times per week. She uses CBD oil and does a lot of exercise.
56A consideration in this case is the plaintiff’s stoicism. She does not see a general practitioner regularly. She has declined to take the step of diagnostic nerve block. It cannot be said she is opposed to invasive treatment as she had surgery for the injury in February 2020.
57Her prognosis is poor, and her symptoms have deteriorated since her surgery in February 2020. Although there was some discussion whether her condition had stabilised, if she does not proceed with further treatment as she has indicated, her condition appears unlikely to change in the foreseeable future.
Disabling effect of pain
58Both Counsel referred to Maxwell P in Haden Engineering Pty Ltd v McKinnon,[53] at [16] regarding relevant factors when considering the extent to which pain interferes with the ordinary activities of life. I refer to them seriatim.
[53] [2010] VSCA 69
59The plaintiff’s sleep is disrupted by the pain from her work injury.
60She referred to her mobility being reduced, for example she can no longer run; “I used to be able to stretch right out and sprint.”[54] She stated she does plenty of exercise to help with her sleep.[55]
[54] T 36
[55] T 27
61Her cognitive functioning is not affected, and neither is her capacity for self-care and self-management.
62With respect to the performance of household duties, she has difficulties with mopping and vacuuming on account of the pro-longed standing and bending involved, however acknowledged she could still cook, clean, do the laundry and shopping.[56] She can no longer cut firwood, her son brings the firewood into the house.[57] She can no longer whipper snip.
[56] T 28
[57] T 28
63With respect to recreational activities, the plaintiff can still partake in dog showing and attends a dog show approximately one in every three weekends.[58] She has been breeding dogs since she was 19. Further, COVID permitting, she agreed she has continued to regularly show dogs since the time of her work injury until present.[59]
[58] T 46
[59] T 31
64In considering this consequence, I turn to the surveillance video. Two pieces of surveillance footage were shown in court from the same day, 15 May 2022, which were 38 minutes and 14 seconds, and 50 minutes and 20 seconds in length respectively.
65On Sunday 15 May 2022, the footage shows the plaintiff and her daughter arrived in Wunghnu at approximately 7.25am for the Euroa Show, having driven for 80 minutes from home. The footage showed her unpacking the car and boot and carrying a variety of different items including the portable gazebo which was set up at the arena. She was frequently bending to pick things up and carrying them. She did so freely. She showed her dog around the ring. Plaintiff’s counsel described her as “shuffling at best”,[60] however in my view she was freer on her feet than that word implies.
[60] T 78
66After the event she re-packed the car, dismantling pens and cages and lifting items. She then spent considerable time, approximately 33 minutes, standing and chatting to a woman with a cattle dog. After the show was over, she then drove home, and stopped at the supermarket, with her daughter. She told Dr Rowe she had difficulty with prolonged standing. Whilst she was standing for a considerable time in the video surveillance, her evidence was not inconsistent with her reportage of consequences, as it is unknown what is meant by ‘prolonged’. I accept the plaintiff’s counsel’s submission the surveillance footage is not inconsistent with the evidence in her affidavits.
67However, it did not appear her recreational activity, namely her great love of showing and grooming dogs, aside from not being able to show or groom larger dogs, has been impacted by the consequences of her work injury.
68It was submitted a great loss for her is that she can no longer show or groom large ‘working dogs’ such as Bearded Collies and German Shepherds. The plaintiff currently has 12 Australian Terriers. Her affidavit refers to her pre-injury winning an award at the Royal Melbourne Show in 2017 for showing this breed of dog.
69Another recreational activity enjoyed by the plaintiff was horse riding. I accept for the plaintiff, who keeps horses, this is a significant consequence as she can no longer do trail rides and no longer even ride a horse to her front gate.
70In terms of social activities, the plaintiff did not give any evidence that this has been adversely impacted, although some of the medical reports, such as Dr Bittar’s, note ‘she socialises much less than she did previously...’.[61] She gave evidence of a road trip weekend away to a New South Wales dog show with some female friends.[62]
[61] PCB 124
[62] T 32
71Overall, in terms of her enjoyment of life, it does not appear to be significantly impacted. She works full time without modification. She can drive up to two hours and can take long trips in the car to dog shows. She can still fully participate in dogs shows, showing and grooming, albeit smaller dogs, even if Australian Terriers are just “cute little scruff bags”, and not “beautiful and flashy” like the Bearded Collies.[63]
[63] T 47
Conclusion
72I note in measuring whether the injury is serious, Ashley JA in Dwyer v Calco Timber (No 2) [2008] VSCA 260 stated:
“It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.” [64]
[64] Dwyer v Calco Timber (No 2) [2008] VSCA 260 at paragraph [27]
73In this case, the plaintiff has suffered significant consequences regarding her pain, including not being able to work as a veterinary nurse, which I accept is evidence of her pain and restrictions. She had an operation for her work injury. Although she has now taken a conservative route regarding treatment, Dr Akil refers to the possibility of a spinal fusion. Given her age of forty-five at the time of the injury, that is significant too. In submissions it was put she will suffer this for another 40 years, not being able to work as a veterinary nurse.
74I was referred to Davidson v Transport Accident Commission,[65] as in that case, it was held an 18-year-old would suffer consequences ‘over the whole of an adult lifetime’ which led to the conclusion the impairment satisfied the ‘very considerable’ test.[66]
[65] [2015] VSCA 12
[66] Davidson v Transport Accident Commission [2015] VSCA 12 at paragraph [51]
75I note the plaintiff, when she was asked why she decided to go into a teaching role in 2018 (pre-injury), she stated her reasons as the low pay and the high suicide rate.[67] Despite it being submitted by the plaintiff’s counsel that the plaintiff in addition to teaching, would like to be doing some veterinary nursing work “to still be hands on”,[68] I give less weight to the impact on her of no longer being able to work as a veterinary nurse.
[67] T 14
[68] T 79
76Further, she can no longer ride her horses. She can no longer show and groom the bigger working breeds of dogs she is passionate about. She takes over the counter medication daily and prescription medication three times a week. These are significant consequences.
77However, she has retained the ability to work full time without modification. She can partake in dog showing and grooming. She can drive for two hours, and whilst some home tasks are affected, she can still cook, clean, and do the laundry and shopping. She was able to spend her hours on a Sunday driving to a dog show, fully participating in all that involved showing her dog, as well as, stopping at the supermarket for considerable supplies before going home.
78The consequences are significant for her and by no means trivial. However, I am not satisfied by the evidence, on the balance of probabilities, that these consequences, when judged by comparison with other cases in the range of possible impairments, they can fairly be described as at least very considerable and certainly more than significant or marked.
79I refuse leave to the plaintiff to commence proceedings at common law under sub-paragraph (a).
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