Bowen v Alfred Health
[2014] VCC 1941
•26 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02767
| KATHRYN BOWEN | Plaintiff |
| v | |
| ALFRED HEALTH (ABN 27 318 956 319) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2014 | |
DATE OF JUDGMENT: | 26 November 2014 | |
CASE MAY BE CITED AS: | Bowen v Alfred Health and Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1941 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering
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; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sabo v George Weston Foods [2009] VSCA 242
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith and Mr A Saunders | Slater & Gordon Ltd |
| For the Defendants | Ms R Kaye | Hall & Wilcox |
HER HONOUR:
1 This 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 the first defendant on 24 February 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The 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.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By 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”.
9 I 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.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. She also relied on an affidavit sworn by her husband, Graeme, on 20 October 2014 and her co‑worker, Nola Kennedy, sworn on 18 October 2014. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged fifty-three, having been born in April 1961.
14 Having completed VCE, the plaintiff obtained a Bachelor of Applied Science in Medical Technology, an Advanced Certificate in Horticulture and a Diploma in Management.
15 The plaintiff has spent her entire working career in the medical science field, and in 2002, she commenced employment with the first defendant as a clinical trial coordinator.
16 That job involved organising patients to attend clinical trials, liaising with them and the doctors involved, booking in patients online, keeping clinical data records, some data entry and preparing submissions for new protocols, perhaps once or twice a year.[3]
[3]Transcript (“T”) 9
17 Every six weeks or so, the plaintiff was required to move files around when the auditors attended. Otherwise, there was not much by way of pushing and pulling in her job. At times, she had to reach or bend to get a file from the shelf. She now tends to place files where they are easily accessible.[4] She has done fewer submissions since the incident as she finds it hard to sit for long at the computer and her manager has also been more involved in their preparation. There has been no formal change to the plaintiff’s work routine since the incident.[5]
[4]T11, T31
[5]T12
18 Prior to the incident, the plaintiff was in good health and had not suffered any significant illness or injuries. She was physically active and had been attending Genesis gym two to three times a week for a few years for a combination of cardio and weights work. The plaintiff also walked her Labrador for about 45 minutes every day.
19 The plaintiff shared household tasks equally with her husband, although she did most of the inside work and all the shopping and he washed the car.[6]
[6]T24
20 The plaintiff enjoyed attending football matches to see the West Coast Eagles when they played in Melbourne and also Melbourne Storm rugby league games.
21 On the said date, whilst the plaintiff was sitting at a work station, a bookshelf collapsed and landed on top of her (“the incident”). Initially she felt pain in her neck and shoulder, and after a short time, her lower back.
22 The plaintiff was initially treated at The Alfred. She underwent an MRI scan on 21 July 2011.
23 The plaintiff has been under the care of her general practitioner, Dr Peters, since July 2011 and she continues to see her monthly for certificates and to discuss her progress. The plaintiff has not been referred to any specialist, as she had been informed by Dr Peters there is little treatment that can be offered to assist her situation.
24 The plaintiff had physiotherapy until 2012. She agreed that by March 2012 she had certainly improved a lot. She definitely had improvement in the first twelve months but she denied it was significant. She has definite exacerbations of pain. Radiating pain to the right leg resolved about two years ago.[7]
[7]T30
25 The plaintiff tries to manage her condition by doing Pilates weekly and also doing exercises at home which her physiotherapist gave her. She is endeavouring to build her core strengths with a view to hopefully returning to some limited gym work. She previously tried to return to the gym but she suffered an increase in her back pain and did not persist.[8]
[8]T23
26 Recently, the plaintiff’s back has not been as good, and she has taken Panadol Osteo, two to four a day. She takes Mersyndol at night as a calmative, and probably at least three to four times during the week.[9] On occasions, she takes Voltaren and/or Nurofen.
[9]T6
27 Prior thereto, the plaintiff was probably taking one to two Panadol Osteo per day but not every day. Dr Peters has now told the plaintiff it is safe to take this medication more frequently.[10]
[10]T22
28 The plaintiff suffers from constant low back pain which varies in intensity. Sometimes it is a dull aching pain, and on other days, she has a grabbing sensation in the back, such that she finds it difficult to get out of bed.
29 The plaintiff needs to avoid activities such as pushing, pulling, lifting, overhead activities and squatting. In addition, her ability to sit or stand for prolonged periods is limited. She has learned to manage her back pain and modify behaviour to keep her pain in check.
30 The plaintiff’s back pain is generally worse with physical activity, and sometimes she has flare-ups for no apparent reason. When the pain is really bad, she takes extra painkillers and has to rest for lengthy periods. The pain is worse in colder weather.
31 Before the work injury, the plaintiff rarely took a day off work. Since then, she has found it difficult to complete a week’s work. Generally, she finds that by midweek, she is struggling to cope, and as a result, she has to take more days off. She tries to use her weekends to recuperate so she will be ready for the next week’s work.
32 The plaintiff indicated that she usually took one day off a month when she attended her doctor and went to Pilates.[11] Occasionally, she took other days off because of her back pain. Most of the four weeks accrued sick leave that she had outstanding at the time of the incident has been taken in relation to her back condition.[12]
[11]T5
[12]T14
33 The plaintiff has not approached the first defendant requesting she be able to take work home as that would not be possible. Nor has she requested cutting down her hours to part time.[13]
[13]T13
34 The plaintiff continues to experience difficulties moving and using her spine and getting around. In recent times, she has declined to attend a number of birthday gatherings which were either over 50 kilometres away or involved some physical activity such as bowling. The plaintiff confirmed that since the incident, she had missed out on each of those activities once.[14]
[14]T29
35 By reason of her back injury, the plaintiff less frequently attends sporting events which she once enjoyed. She still goes to the football but has reduced her attendance, not going to a couple of West Coast games as she has a reduced membership status.[15] She takes medication before she goes, and has to get up during the game and stretch, and her pain substantially diminishes her enjoyment of the game.[16]
[15]T28
[16]T34
36 Since her injury, the plaintiff has avoided overseas travel, finding that travelling on planes increases her back pain. Prior to her injury, the plaintiff and her husband travelled overseas and went backpacking, but she is no longer able to do so. The backpacking trip was in 2002 and they had planned to do a similar trip later. The plaintiff and her husband also went to Bali in 2010.[17]
[17]T20
37 The plaintiff was recently requested to participate in an advisory board meeting in Spain and chair the meeting. She was reluctant to attend because of the long flight, nor did she feel she would be able to function and contribute to the discussion 100 per cent. She was eventually persuaded to attend, and, despite increasing medication before and during the flights, travel again increased her back pain, which persisted thereafter for over a week.
38 Earlier this year, the plaintiff was asked to travel to Italy for work. She initially declined as she did not think she could sit for that long in economy class,[18] but her ticket was later changed to business class. However, after the long flight, she found her back symptoms increased, and her ability to function was significantly impaired by reason of her pain and lack of sleep due to that pain.
[18]T32
39 The plaintiff had earlier travelled to Malaysia for work in September 2013. She was reluctant to go but she was then provided with business class tickets. She attended with a doctor from The Alfred, who also travelled business class.[19]
[19]T16
40 The plaintiff confirmed she had travelled interstate on a number of occasions since her injury.[20] She pays for such travel with increased back pain.[21]
[20]T14
[21]T33
41 Since her injury, the plaintiff’s sleep has been greatly interfered with. In her first affidavit, she described waking two to three times a night with pain, and she only got about five or six hours’ sleep a night. That lack of sleep interferes with her ability to function at work at a pre-injury level.
42 The plaintiff had always taken great pride in her work and functioned at a very high level, having been the deputy chief scientist of a private laboratory prior to starting her present job.
43 The plaintiff has pain with prolonged postures and problems lifting weights more than 2 kilograms. Typically her pain worsens over a day, with it not being too bad in the morning, but on most days there is significant pain, and she will need to stretch and rest at the end of the day.
44 The plaintiff has back pain all the time which ranges from 2 to 3 out of 10 to 6 or 7. Since the recent trip to Spain, she has been getting more back spasms which affect all her activities.[22]
[22]T36
45 The plaintiff now relied on her husband most of the time to walk the dog, as pulling her on the lead could hurt her back. She does however walk the dog and also walks for exercise regularly.[23]
[23]T27
46 The plaintiff tried to do some work around the house but found her back pain was made worse by vacuuming, mopping, cleaning the bathroom, or doing any heavy cooking or shopping. She now relies mostly on her husband to do those things. The plaintiff still tries to do lighter tasks and she goes shopping with him.[24]
[24]T28
47 The plaintiff confirmed that prior to the incident, she did more than half the housework although her husband did some cooking and vacuuming.[25]
[25]T25
48 The plaintiff and her husband no longer entertain as frequently at home as preparing for a dinner party increases her back pain. They go out to restaurants locally more frequently as they can walk there.[26]
[26]T35
49 The plaintiff’s inability to do her former pastimes and household activities has caused her to become depressed and irritable. In her first affidavit, she deposed her relationship with her husband had deteriorated significantly, as she was much more moody and difficult to live with, and because he had had to shoulder an unfair part of household responsibilities.
Lay evidence
50 The plaintiff’s husband, Graeme, swore an affidavit on 20 October 2014. They have known each other for thirteen years.
51 Mr Bowen confirmed the plaintiff had always been a very highly motivated, positive and mentally strong woman. Pre incident, she handled her full-time job and household tasks and they enjoyed a very social and active outdoor life.
52 Since her injury, the plaintiff now relies heavily on him to do more demanding housework and he now assists her with the weekly food shopping.
53 Mr Bowen confirmed the plaintiff was limited in bending and she now infrequently walked the dog. They attended sporting events infrequently due to the plaintiff’s pain. They have not undertaken any overseas holidays since her injury, previously having enjoyed backpacking.
54 Having only rarely taken medication pre injury, the plaintiff now takes painkillers regularly. Pilates gives her some assistance with back pain.
55 Since her injury, the plaintiff’s sleep has been greatly affected and she now tends to sleep during the day. She is now “just living to work”. She now displays a short fuse, having been happy and bubbly prior to the incident.
56 Nola Kennedy swore an affidavit on 18 October 2014. She is the manager of Clinical Trials in Haematology at The Alfred. She and the plaintiff have worked in that area for the last twelve years.
57 Ms Kennedy confirmed the plaintiff’s strong work ethic and the fact she had very few days off pre injury.
58 Ms Kennedy had observed the plaintiff since injury move about the department quite stiffly and slowly. She has seen the plaintiff take medication at work and they have discussed her Pilates’ treatment.
59 The plaintiff has complained since injury of disrupted sleep and has displayed grumpy behaviour in meetings. She was surprised at the plaintiff’s reluctance to attend an advisory meeting overseas until persuaded by her to do so.
60 Since the incident, the plaintiff has changed from a happy-go-lucky character to becoming more cautious and she has lost confidence, and her capacity to participate in all aspects of her work happily has been reduced.
Treaters
61 Dr Peters in Albert Park first reviewed the plaintiff on 11 July 2011 regarding her low back pain. The plaintiff had earlier been to The Alfred and seen another practitioner.
62 Three days before this initial presentation, the plaintiff began to experience intermittent paraesthesia in her leg.
63 On examination, the plaintiff she was tender over the L4‑5 level and she was referred for physiotherapy. An MRI scan revealed disc degeneration of L5‑S1 with subjacent marrow reaction.
64 Conservative treatment was pursued and the plaintiff was certified fit for modified duties, to lift no greater than one kilogram, not to repetitively bend or twist, and not to sit for longer than 30 minutes. She was also referred for physiotherapy and an exercise program.
65 On 18 August 2011, the plaintiff reported her back was considerably better. She was continuing physiotherapy and modified duties. Lifting was allowed to 2 kilograms, and it was suggested she do Pilates.
66 The plaintiff’s back was more painful on 15 September 2011. On 13 October 2011, it was generally more comfortable, with the ergonomic change to her workstation.
67 There was an exacerbation of the plaintiff’s pain after physiotherapy on 10 November 2011. That settled, but she had more muscle spasms in her low back.
68 At the end of 2011, the plaintiff had reduced physiotherapy treatment and had been managing her discomfort with exercises adequately. When reviewed in early 2012, her low back had been worse, and she had been seeing the physiotherapist every two weeks and managing the discomfort. She reported more discomfort over the preceding month and more lumbar stiffness in February 2012, and needed to see the physiotherapist more.
69 Dr Peters diagnosed low back pain secondary to bilateral L4‑5 facet joint degeneration and L5‑S1 disc injury. She noted, as of March 2012, the plaintiff’s back pain had significantly improved. However, twelve months after her injury, she continued to experience low back pain which intermittently flared.
70 Dr Peters then thought the condition had not stabilised, noting the plaintiff had only recently started Pilates, and there had already been some improvement in her back pain since that started. She then thought the plaintiff was fit to work, with lifting not greater than 2 kilograms, and to not repetitively bend or twist or sit for longer than 30 minutes.
71 At that stage, Dr Peters thought the injury had had a considerable impact on the plaintiff’s social and domestic life and also her personal relationships. She noted the plaintiff had been a very motivated client who actively participated in physical therapy and exercise programs.
72 In February 2014, Dr Peters noted that the plaintiff’s symptoms remained very similar. Her low back pain would improve with physiotherapy and Pilates, but she suffered frequent exacerbations. Throughout that time, the plaintiff remained committed to Pilates, and bought machinery to help her with her pain management. Dr Peters thought, as the plaintiff’s situation became more chronic and she experienced difficulties accessing appropriate funding for Pilates, she had experienced lowering of mood.
73 Dr Peters confirmed her earlier diagnosis and the restrictions on the plaintiff’s work previously imposed. She noted the plaintiff had been able to fulfil the productivity expectations of her employer within these restrictions, and was currently working in her pre-injury job.
74 Dr Peters thought the treatment the plaintiff was having was essential to ensure she could remain at work, remain healthy, and undertake necessary activities of daily living. At that stage, the plaintiff had been paying herself to have twice-weekly physiotherapy and supervised small group Pilates, as her low back pain had significantly improved, and the frequency and severity of exacerbations of her back pain were reduced by this regime.
75 In the most recent report of September 2014, Dr Peters confirmed the earlier diagnosis and that the plaintiff’s condition had stabilised, with chronic mechanical lumbar back pain with intermittent exacerbations of pain.
76 Dr Peters noted the plaintiff experiences chronic low back pain which increases in severity if she reduces her Pilates or changes her activity. Her treatment requirements are twice-weekly group Pilates of one hour’s duration, a gym exercise program, and home exercise.
77 The restrictions imposed because of the plaintiff’s physical injury would be preclusion from bending, lifting or pushing. She could squat or stoop to pick up items weighing less than a kilogram. Pushing, pulling or lifting was likely to be restricted to less than 2 kilograms. Repetitive pushing, pulling or lifting and crouching were precluded. Overhead activities were restricted to less than a kilogram, kneeling for five minutes only, and squatting briefly for less than a minute. Prolonged sitting, walking or standing was precluded for times greater than half an hour. The plaintiff could walk up and down gentle inclines only, for less than 10 minutes, and she could walk up less than fifteen steps, and was precluded from using ladders.
78 Dr Peters thought the plaintiff was capable of performing modified duties in her normal work role. As a consequence of her physical injury and impairment, the plaintiff was restricted in her social, domestic and recreational activities. She had reduced social interactions that required travel of more than 30 minutes and involved sitting or standing, and her enjoyment was reduced as her pain was exacerbated. Domestically, she had significantly reduced her activities. Vacuuming and household duties were significantly affected. Grocery shopping was impaired, and she needed help from her husband with these activities.
79 The plaintiff was unable to carry a backpack, an activity which she and her husband previously enjoyed. The plaintiff felt unable to undertake an overseas holiday travelling economy class. She was concerned about pain exacerbation. She had not been able to attend the gym, which she previously enjoyed. She could not walk her dog, other than around the block, as she was concerned, holding its leash, if the dog lunged at other dogs this would exacerbate her back pain, and generally, the plaintiff’s confidence in all tasks had been reduced.
80 Dr Peters expected these incapacities were likely to last for the foreseeable future, and the plaintiff would require ongoing physical therapy and exercise to maintain her current range of movement and manage her pain. She was at increased risk of developing degenerative arthritis in her L4‑5 facet joints bilaterally. It was likely, as she aged, the plaintiff would experience increased low back pain, and continued Pilates would be likely to reduce the severity of the symptoms. She did not currently require any assessment by another specialist.
Investigations
81 The plaintiff underwent an MRI scan on 21 July 2011. It was reported as showing no evidence of fracture. There was disc degenerative change at L5‑S1 with subjacent marrow reaction. There was mild facet degenerative arthropathy at L4‑5 bilaterally, and no spinal canal stenosis or nerve-root impingement.
Medico-legal evidence
82 The plaintiff was examined by orthopaedic surgeon, Mr Stephen Doig, in September 2014.
83 On examination, the plaintiff was somewhat tender in the midline at L4‑5. There was some minor wasting of the right quadriceps by one centimetre. There was no neurological abnormality. Flexion was to 65 degrees and extension to 20 degrees. Lateral flexion on the right was to 20 degrees, and to the left 30 degrees. Rotation was to 30 degrees bilaterally.
84 Mr Doig thought the plaintiff’s work had been a significant contributing factor to her chronic low back pain. He thought her condition had stabilised, and Pilates was reasonable. He considered there was a restriction in employment activities along the lines described by Dr Peters, and difficulty with prolonged positions.
85 Mr Doig thought this situation was likely to be for the foreseeable future, noting it was now three years since the injury and it had not really changed markedly. He thought the plaintiff was capable of her current normal job with some restrictions.
86 In his view, the plaintiff was restricted in relation to social, domestic and recreational activities to a moderate extent permanently.
87 Mr Doig thought the prognosis was a little guarded. He noted the plaintiff continued to have ongoing problems with her back, and had not had a lot of treatment, with no injections and no specialist referral for pain management. The latter might give her some benefit, but he noted it was now three and a half years down the line, so it was less likely that it would help, and he did not think surgery had any role to play.
The Defendants’ medico-legal evidence
88 Dr Fraser, rheumatologist, examined the plaintiff in April 2013 and August 2014.
89 On the first examination, there was slight restriction of forward flexion and lateral movements to the right. The dorsolumbar spine was restricted, with mild discomfort at the extremes of range. Flexion/extension was 70/30 degrees, right lateral flexion 20 degrees, left lateral flexion 30 degrees, right lateral rotation 20 degrees, and left 30 degrees. There was local tenderness at the lumbosacral junction. Straight leg raising was not restricted, and there were no neurological abnormalities.
90 On re‑examination, there was a slight improvement, with movements not restricted but complaints of some discomfort at the extremes of range, more so on right lateral rotation. Flexion/extension was 80/40 degrees, bilateral lateral flexion 30 degrees, and bilateral rotation 30 degrees. There was mild local tenderness to the right of the lumbosacral junction. Straight leg raising was not restricted or painful, and there were no neurological abnormalities.
91 Dr Fraser thought the plaintiff gave her history in an honest and straightforward fashion and there was no overreaction. He considered the incident had aggravated early degenerative changes at L4‑5 and L5‑S1, rendering them symptomatic, and she had not recovered from that situation. He thought there would probably be some mild permanent incapacity as a result of the injury.
92 Dr Fraser noted the plaintiff was physically fit for pre-injury duties and was in fact doing them. The nature of her work made any specific restrictions unnecessary, but he noted the plaintiff was obviously unfit for work requiring any bending, lifting, or prolonged standing. He considered the restrictions imposed by Dr Peters were not unreasonable.
93 Dr Fraser thought the current treatment with analgesics and anti-inflammatory drugs was appropriate, and he did not consider there was any indication for facet-joint injections or surgery.
94 While it was up to the plaintiff whether she self-funded Pilates, he thought that she may do just as well with a self-managed exercise program. He thought it seemed unlikely there would be any significant change in the foreseeable future.
95 Dr Elder, occupational physician, examined the plaintiff in July 2012.
96 The plaintiff then estimated overall that she was about 75 per cent improved. She still had low back pain on the right side, but it did not radiate into the leg any more, and she had no other radiation or radicular symptomatology, and she had not lost control of her bladder or bowel.
97 On examination, there was a decreased range of motion in the lumbosacral spine. There was no spasm. Thigh and calf circumferences were within a centimetre, and neurologically the plaintiff was normal. She had a positive quadrant test to the right, and there was normal spinal contour.
98 Dr Elder thought the plaintiff had ongoing mechanical back pain with no clinical evidence of radiculopathy relevant to the original back injury.
99 The plaintiff was examined by orthopaedic surgeon, Dr Boys, in May 2014.
100 The plaintiff described to him intermittent use of Panadol Osteo or Mersyndol, and that she did not take regular medication.
101 On clinical examination, the plaintiff sat and walked normally. She stood without spinal deformity. There was mild tenderness with palpation at L5‑S1. Active spine extension range was mildly restricted with complaints of a lumbosacral strain. Straight leg raising was 80 degrees bilaterally, and neurological examination showed no evidence of muscle wasting.
102 Dr Boys diagnosed osteoarthritic degenerative change of the lower lumbar spine/facetal osteoarthritis.
103 Dr Boys noted the plaintiff experienced mechanical lower back pain reflected during changes within the lower lumbar spine. He thought employment would be considered to be contributory, and that the plaintiff had suffered a soft tissue injury of the lower back, aggravating constitutional degenerative change within the lower lumbar spine occurring in the incident.
104 There was no indication of surgery, and the main state of treatment involved conditioning exercises directed to core stabilising. Intermittent use of pharmaceutical agents such as anti-inflammatories was appropriate. He noted the plaintiff believed regular Pilates improved her condition. He also noted the plaintiff’s husband assisted at home.
105 The plaintiff first attended Middle Park Physiotherapy in July 2011, and treatment continued until March 2012.
106 Physiotherapist, Mr Little, thought the plaintiff was likely to suffer occasional aggravations and progression of her L4‑5 facet arthropathy and degenerative change at L5‑S1 disc into the future. The work she was completing with Pilates and her external program would facilitate improvement in lumbopelvic stability and peripheral strength, improving her functioning and reducing deterioration and the severity and frequency of painful episodes.
107 Mr Little noted that the plaintiff had already reached a point at which now she feels minimal to no aggravation of her pain with work-related tasks and exercises. At that stage, surgery for the condition was highly unlikely unless a significant aggravation caused progression of her injury and symptoms.
108 On 17 September 2012, Mr Little advised that the plaintiff would be appropriate to attend weekly group classes of Pilates.
Overview
109 It is not disputed the plaintiff suffered a compensable injury in the incident.
110 I am mindful of the fact that the defendants accepted liability for the payment of statutory benefits. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd & Anor v Taylor,[27] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[27][2006] VSCA 171
111 The consensus of medical opinion is that the plaintiff aggravated pre-existing asymptomatic degenerative change at L4-5 and L5-S1 in the incident.
112 There is no suggestion of any pre-existing spinal problems or that the plaintiff’s condition does not have a substantial organic basis.
113 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[28]
“… 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.”
[28](2010) 31 VR 1 at paragraph [12]
114 I found the plaintiff to be a truthful witness who did not exaggerate the level of her pain and restriction. Counsel for the defendants agreed the plaintiff’s credit was not in issue in this case.[29]
[29]T37
115 Counsel for the defendants submitted that the plaintiff’s impairment is not serious, as she still does everything she used to but she does it slightly less frequently or with some modifications.[30] It was submitted a fair bit had been retained in her life.[31]
[30]T37
[31]T40
116 Reliance was placed on the decision of the Court of Appeal in Dwyer v Calco Timbers (No 2)[32] where Ashley JA stated that, in assessing whether the impairment consequences of injury are serious –
“… one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that the impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed to an extent by what has been retained.”[33]
[32][2008] VSCA 260
[33]At paragraph 27
Pain
117 As Maxwell P said in Haden Engineering v McKinnon,[34] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about her pain both to the court and to doctors.
[34]At paragraph 11
118 I accept that since the incident, the plaintiff has suffered low back pain, varying in intensity and nature, from a dull ache to a grabbing sensation. She suffers increased pain with prolonged postures and there is a worsening of pain during the day with activity. Sometimes she has flare ups for no particular reason and her pain is worse in colder weather.
119 Without Pilates or exercises, the plaintiff’s back pain increases, as Dr Peters described.
120 I accept that by reason of her back pain, the plaintiff has some restrictions in overhead activity and her ability to bend, lift and squat.
121 In this regard, restrictions have been imposed by the plaintiff’s general practitioner in relation to activities involving lifting, bending, twisting and prolonged posture.
122 The plaintiff agreed there had been improvement in her condition in the twelve months after injury as reported by Mr Little and Dr Peters. She denied however, significant improvement, as treating physiotherapist, Mr Little had noted she reported in March 2012 when he noted she told him that she felt minimal to no aggravation of her pain with work related tasks and exercises.
123 Whilst the plaintiff has complained of ongoing flare ups, the last one noted by Dr Peters was in November 2011.[35] Thereafter, the plaintiff has not attended Dr Peters complaining of any exacerbation of back pain, although Dr Peters reported the plaintiff suffered intermittent flare ups.
[35]T42
124 Of note in her most recent report of September 2014, Dr Peters confirmed there was no need for specialist referral.
125 There have not been findings of any great significance on examination.
126 There was a slight improvement in level of lumbar spine movement between Dr Fraser’s first examination in August 2103 and on re-examination in April this year.
127 Most recently, there was no restriction at all in contrast with the earlier slight restrictions. There was some discomfort on extremes and improvement in the general range of movement.
128 Dr Fraser concluded there would be only mild permanent incapacity. Other examiners do not differ greatly in this regard, with Mr Doig describing a moderate level of disability.[36]
[36]T44
129 When Dr Elder examined the plaintiff in July 2012, the plaintiff estimated about a 75 per cent improvement. There was a decreased range of lumbar movement and no muscle spasm. There was then no radiation into the leg. As the plaintiff confirmed in her viva voce evidence, that had stopped some two years ago.[37]
[37]T44
130 Mr Boys’ examination in May 2014 was quite similar to Dr Fraser’s. He noted the plaintiff was in no distress and there was a mild tenderness and a mild restriction of extension. There was no muscle wasting.
131 Whilst I accept the plaintiff has ongoing back pain since the incident, in my view, the consequences thereof do not meet the statutory definition of serious.
Work
132 Following the incident, the plaintiff had only three days off work and then returned to essentially normal duties.
133 The plaintiff regularly takes off a pre-arranged day per month to see Dr Peters for certificates and to discuss her progress. She attends Pilates on that day. Otherwise, the plaintiff takes the odd day off for back pain.
134 There has been no need to reduce the plaintiff’s work hours or modify her duties in any substantial way since the incident. No formal restrictions have been placed by any doctor on her work duties other than would be expected with a light work back.
135 However, these restrictions are not as relevant as in the case of a manual worker, because the activities upon which restrictions have been imposed are not involved in the plaintiff’s job as a clinical trials officer. Her job does not really involve hands-on pushing, pulling or twisting. She certainly is not a manual worker.[38]
[38]T41
136 The plaintiff simply has to move some files on an infrequent basis and she now places them in a position more accessible for her. The only change to her work practises is that she now puts key documents on the middle shelves rather than the higher or lower ones.[39]
[39]T43
137 The plaintiff is generally doing the same duties as before injury and her report writing duties have reduced due to her problems sitting writing and also because her manager is now doing more submission work.
138 I do not accept this situation at work demonstrates the plaintiff is a stoic as her counsel submitted.[40] In my view, the plaintiff can undertake her usual duties, albeit at times in pain, as Ms Kennedy confirmed, with some minor adjustments in relation to report writing and file placement, continuing in the sedentary role she has performed for most of her working life.
[40]T47
Treatment
139 There has been very little in the way of treatment.
140 There is no prescription medication. Whilst the need for over-the-counter medication has recently increased, prior thereto, the plaintiff did not take painkillers on a regular daily basis.
141 The only current treatment is Pilates and a monthly visit to the general practitioner, who provides certificates and support to the plaintiff. There is no actual treatment provided.
142 There has been no referral to a specialist. No further investigations have been undertaken since the original MRI scan in July 2011 which showed no evidence of protrusion. There has been no suggestion of injections or a pain management course.[41]
[41]T39
Activities
143 In recent times, the plaintiff has travelled overseas extensively for work. She has not declined any work trips, although she has required business class travel, similar to that offered to other employees of the first defendant accompanying her.[42]
[42]T39
144 I accept that travelling overseas for leisure has somewhat reduced since the incident. However, the last time the plaintiff and her husband had been backpacking was in 2002, some nine years before the incident. They are still able to travel extensively interstate, albeit the plaintiff has increased pain on longer trips.
145 The plaintiff still has a regular walking regime, although she does not walk her dog as much by herself.
146 The plaintiff has been unable to continue her pre-injury gym routine but hopes to do return to the gym in the future after she has built up her core strength.
147 Despite attending in pain and experiencing discomfort whilst watching matches, the plaintiff still attends most West Coast Eagles matches in Melbourne, being an interstate member. She also watches the Melbourne Storm play.
148 The plaintiff’s ability to do housework has not been completely diminished by her injury. She assists with lighter duties and the shopping.[43] When she undertakes heavier activities such as vacuuming, she has increased pain.
[43]T40
149 There is no mention by the plaintiff of problems gardening or problems with driving other than long distances.
150 The plaintiff and her husband still enjoy a reasonable social life, although her ability to entertain at home is somewhat reduced because of back pain.
151 There are some problems with sleep, confirmed by the plaintiff’s husband but the plaintiff does not require medication in this regard.
152 Dr Peters is the only medical practitioner who has raised the possibility of an increased risk of osteoarthritis in the future. This is not a grim picture of increased risk of developing degenerative arthritis as the plaintiff’s counsel described.[44]
[44]T50
153 As Mandie JA commented in Sabo v George Weston Foods,[45] weight must be given to the adverb “very” in the “more than significant” or “marked” and “at least very considerable” test.
[45][2009] VSCA 242 at paragraph 73
154 I accept that this high threshold is simply not reached in the case of a woman who is working full time on the same duties doing essentially the same leisure activities, save for gym, albeit with some modification and some less frequency than previously with very little by way of medication and treatment and complaints of pain.[46]
[46]T45
155 Taking into account all the evidence, I am not satisfied that there has been a very dramatic alteration in the plaintiff’s life as a result of her injury as her counsel submitted.[47] In my view, the plaintiff has not met the high statutory threshold of serious.
[47]T48
156 Accordingly, the plaintiff’s application is dismissed.
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