Brown v Fernleigh House Inc
[2010] VCC 1309
•17 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06132
| ANNA LISA BROWN | Plaintiff |
| v | |
| FERNLEA HOUSE INC | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 3 September 2010 |
| DATE OF JUDGMENT: | 17 September 2010 |
| CASE MAY BE CITED AS: | Brown v Fernleigh House Inc |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1309 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – injury to lumbo-sacral spine and right leg.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with | Grando & Breheny |
| Mr D McIvor | ||
| For the Defendant | Mr R J Stanley QC with | Thomsons Lawyers |
| Ms H Donmez | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 8 March 2007.
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 s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbo-sacral spine.
6 The plaintiff relied upon two affidavits, sworn 13 August 2009 and 13 July 2010. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.1
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999.2
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.3
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: “… satisfied by reference to the consequences to the worker of any impairment or loss of body function … with respect to pain and suffering … when judged by comparison with other cases in the range of possible impairments or losses of a body function.”
(d)
under s.134AB(38)(c) of the Act, an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked and
as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments. As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:4
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. …”5
10 The test for “serious”, as set out in paragraph (b) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
11 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.6
S.134AB(19)(a) of the Act
S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
Barwon Spinners (op cit) at paragraph [33]
[2009] VSCA 181
Ibid at [42]
S.134AB(38)(j) of the Act
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[7]
[7] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
12 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s Evidence
13 In her first affidavit sworn on 13 August 2009, the plaintiff deposes that:
•
She was born on 19 December 1956. She currently lives with her eighteen-year-old daughter and her sister. She left school when she was seventeen-years-old after completing Year 11.
• From 1972 to 1991, she was employed in various temporary jobs. •
From 1991 to 1998, she was involved in home duties. In 1998, she commenced a part-time course in social sciences at Deakin University, which she continued for the next nine years or thereabouts. In 1998, she worked as a part-time research assistant at the University and from 1999 to 2001, she worked as a part-time tutor. From 2001 to 2005, she worked in two venues as a part-time kitchen assistant, in one venue as a casual chef, and as a self-employed chef operating a café.
•
In or about August 1998, November 1999, August 2003, she experienced back pain, but each time she recovered within a short period.
•
In or about February 2007, she was enrolled in a computer training course by the defendant which was held at the Monbulk Primary School library. The computers were set up on benches up against a wall, with low moulded plastic chairs in front of them, which were suitable for use by small children. Neither the chairs nor benches were adjustable. The participants were required to sit on the chairs facing the computers, whilst the teacher was positioned behind them with a whiteboard.
•
In the first two classes of the computer course the plaintiff was mainly facing the teacher and not operating the computers. In the third class on 8 March 2007, she spent most of the evening operating the computer keyboard and turning and twisting to face the teacher and whiteboard behind her. As a result of the computer course, she developed back pain. On the night of 8 March 2007, she took Panadol. The next day she went to work. Her back pain was increased and she also had pain radiating into both buttocks, particularly on the right side.
•
She consulted Dr Arjuna Herath at Hills Medical Centre on 13 March 2007. Dr Herath put her off work, prescribed painkillers and anti- inflammatory medication and arranged for physiotherapy. Subsequently, Dr Herath arranged for her to see Mr Brian Barrett, orthopaedic surgeon, on 5 April 2007
•
She returned to work on 2 July 2007. She returned to work on 2 July 2007 on a part-time basis, performing light duties. She continued these light duties until October 2007, when she was informed that there were no further light duties available for her.
•
In the second half of 2007, she commenced a graduate diploma in information management at RMIT. She initially attended for 3 hours per week in 2007, 9 hours per week in 2008 and 3 hours per week in 2009. She expects to graduate in the near future.
•
In or about August 2007, while driving a motor vehicle, she had to break hard to avoid a collision. As a result of this accident, she did have increased back pain for a period of three weeks.
•
On 20 February 2009, she commenced employment with VicTrack as a contract archivist, performing keyboard work. She worked there until April 2009, when she had to cease work a week prior to the expiration of the contract because of her back injury.
•
On 24 April 2009, she was involved in a transport accident. She was hit in the rear of her car by another vehicle. Her principal injuries were whiplash to her neck and bruising to her sternum. She also suffered temporary aggravation to her back injury.
•
For treatment she continues to see doctors at the Hills Medical Centre at least once a month, who have prescribed various medications. Currently she is taking eight Panadeine Osteo tablets per day, together with Voltaren. She also takes Zoloft, which she was taking prior to suffering her back injury, but now the dosage has been doubled. Mr Barrett continues to monitor her condition and she last saw him in April 2009. For about a year after her injury, she attended physiotherapy on a weekly basis, and then once a month until November 2008. In the year following her injury, she also attended hydrotherapy a couple of time a week. She currently sees Dr Caroline Delaney, osteopath, for massage, stretching and manipulation. She tries to do a flat walk daily for approximately 15 minutes. She continues to use heat packs and do physiotherapy exercises at home.
•
She continues to suffer from pain, stiffness and limitation of movement in her back with pain radiating into her buttocks and legs, particularly on the right side, together with impaired sensation. She has difficulty engaging in activities which require heavy lifting or repeated bending, sitting and standing for long periods, or walking for long distances.
•
She is now limited in her ability to garden and cut the lawns. At the time of the injury her home was on a large block with an extensive garden which she developed and maintained. This property has now been sold. One of the reasons for this is that she was limited in her ability to maintain the garden. Before her injury, she enjoyed regularly cooking and entertaining at home. These activities are now limited. She now finds vacuuming, cleaning and shopping difficult. Her sleep is now disturbed because of back pain. Before her injury, she enjoyed regularly bushwalking over rough terrain. She is now limited to relatively short flat walks. She used to enjoy belly dancing, but is no longer able to do this. She was a keen swimmer and attended an indoor pool a couple of times a week, swimming about a kilometre, but now only goes occasionally, as she finds kicking difficult. She is now limited with outings to movies, the opera and concerts, as she finds sitting for long periods difficult. Her sexual relations are now limited. Her ability to go on holidays, to the beach and to see her friends and relatives are also now limited.
14 In her second affidavit sworn 13 July 2010, the plaintiff deposes that:
•
She is now aged fifty-three years. She still lives with her nineteen-year- old daughter and her sister.
•
She has recovered from her whiplash injury referred to in her first affidavit.
•
She continues to suffer from the symptoms, impairments and limitations outlined in her first affidavit. She continues to take Panadeine Osteo tablets, Voltaren tablets and to use Voltaren gel. She has ceased taking Zoloft, but will shortly be taking it again. She continues to see the doctors from the Hill Medical Centre from time to time. She continues to see Dr Delaney, osteopath, for massage, stretching and manipulation. She also continues to do physiotherapy exercises at home and undertake daily flat walks for approximately 15 minutes. Further, she now attends the pool weekly for swimming and hydrotherapy, but continues to have difficulty kicking and is unable to swim as she could prior to her injury. At times she has difficulty putting on her shoes and socks, cutting her toe nails and shaving her legs.
•
She had completed her information management course at RMIT, graduating in December 2009.
•
In October 2009, she commenced a twelve-month contract with VicTrack as a records administrator working full-time. She is allowed to sit and stand at will and does not engage in heavy lifting or repeated bending. Whilst the work is light, her back symptoms usually increase by the end of the week and particularly by the end of the week.
The Plaintiff’s Evidence in Cross-examination
15 The plaintiff was cross-examined and gave the following pertinent evidence:
•
The plaintiff agreed she had suffered recurrent back pain going back to 1999. She agreed she had right-sided symptoms with pain into the right buttock and leg. She also agreed that working as a chef was physically demanding and that she might not be able to continue working as a chef in the long-term. She said the hours are long and it was not family friendly.
•
She agreed that she was referred to an osteopath in 1999. She said from 2000, her understanding was sometimes she would have a bad back and other times it would be fine until a particular event occurred, like falling over with the dog or when she moved house. The rest of the time her back was okay.
• She said now she was never free of pain. •
She agreed that prior to 2007, she would take anti-inflammatories and analgesics when she had a flare up.
• She agreed that she is now limited in doing activities. 16 In re-examination, the plaintiff said:
•
Before the work injury, she sought osteopathic treatment once or twice a year, perhaps three times a year.
•
Before the work injury, she had pain for one or two weeks. Now she has constant back pain. She gets woken up with the pain at night and most nights her sleep is affected. This was not the case before the work injury.
•
Prior to the work injury, she was able to do most of her housework. Since the work injury, she has required assistance from her daughter, particularly with cleaning the bathroom.
•
Prior to the work injury, she was able to garden. She had gardens on a large block. She was able to do the physical labour, the digging and barrowing. She also made compost and installed a watering system. She mowed the lawns; now she pays for her lawns to be mowed. Now she is unable to do that type of work. Now she has pots of herbs, and that is about the extent of her gardening.
•
She said prior to 2002, she entertained; it was a big part of her life. Now she cannot entertain to the extent she did previously.
•
The plaintiff agreed that she now worked full-time and that she had not had any days off work. She travels by train to work from East Ringwood and said that if she stands in a crowded train it is hard on her back and legs and she is aware of not wanting to be knocked. She said that she left early and came home early so that she could get a seat. She said she works from 8.00 am to 4.30 pm.
•
She said she takes Panadol Osteo before and after work and if she gets bad pain at work she applies Nurofen gel.
Radiological Evidence
17 An MRI scan of the lumbosacral spine of 18 September 2007 disclosed degenerative changes involving the lower four lumbar discs. “Annular disruption was present at the L4-5 disc with a small to moderate-sized broad- based disc bulge just contacting the L5 nerves within their respective lateral recesses. No neural displacement or compression. Mild facet joint arthropathy of the L3-4 and L5-S1 levels.”
The Plaintiff’s Medical Evidence
18 Dr Cicily Nesbit, the plaintiff’s general practitioner, provided medical reports dated 1 October 2008 and 21 June 2010. She said that the plaintiff first presented for medical attention on 13 March 2007 when she saw Dr A Herath. The plaintiff reported that on 10 March 2007, while employed as a chef, she attended a computer-training day for work. She was seated in a position which required repetitive turning from the speaker at the front of the room and back to the computer which she was using. Following the training day, the plaintiff noticed low-back and buttock pain which increased over the following days. A diagnosis of L3-4, L4-5 disc herniation was made. The plaintiff experienced paraesthesia of the right medial foot, backache, stiffness, restricted back movement and reduced motor power in the lower right leg.
19 Dr Nesbit said the plaintiff’s treatment was conservative, involving rest, modification of her daily activities (for example, minimising prolonged sitting, standing, driving, avoiding bending, twisting, and carrying weights in excess of 4 kilograms), use of oral analgesics, anti-inflammatories and anti-spasmodics. The plaintiff had osteopathic treatment, physiotherapy, hydrotherapy, occupational therapist assessment and input, heat packs and home help. The plaintiff suffered reactive depression, and required anti-depressant medication and psychological input.
20 It was Dr Nesbit’s view that the plaintiff was not capable of undertaking her work as a chef, as she was incapable of lifting heavy pots and pans, bending, stooping and twisting during cleaning, and she could not stand for long periods of time.
21 Dr Nesbit said the plaintiff’s injuries had a significant impact on her occupational, social and domestic life. She could not participate in her hobbies, such as driving to see friends or walking her dogs, household domestic tasks involving bending, carrying or twisting. She said that during her archiving course and work experience, her work injury meant she was unable to complete her training at a full-time rate. She considered she was likely to continue to be affected by pain, needed to work reduced hours, minimised time sitting/standing, and stretched and rested frequently.
22 In June 2010, Dr Nesbit said the plaintiff continued to suffer altered sensation along the lateral aspect of her right foot. She said the plaintiff had frequent pain and stiffness in the back, buttocks and legs, of varying intensity. She thought it unlikely that these symptoms would fully resolve, and that she would be affected by pain of a variable nature indefinitely. She said the restrictions to her physical capacities are likely to continue indefinitely.
23 On 1 October 2008, Mr Brian Barrett, orthopaedic surgeon, said he had seen the plaintiff at the request of her general practitioner on 5 April 2007 and on four further occasions, the most recent being 18 September 2008. The plaintiff told Mr Barrett that she had previously experienced “occasional” muscle pains in her back without loss of work time. Examination of the lumbar spine revealed normal general contours. Movements of the lumbar spine were limited. Neurological examination of the lower limbs revealed normal power, while sensory testing revealed some mild depression of sensation involving the right L4-5 dermatome region. He reported that an MRI scan of the lumbar spine revealed all four lower limb discs were disrupted to varying extents. It was his opinion that the plaintiff had sustained disruptions of her four lower lumbar intervertebral discs, to varying extents, producing her low- back pain and mainly right sciatica, symptoms of which became particularly troublesome following prolonged sitting in a small chair in the course of her work on 8 March 2007.
24 When reviewed in September 2008, her lumbar contours were normal, and her lumbar movements were moderately limited, all producing some low-back pain, radiating into the buttocks at the limit. Power in the lower limbs was normal and symmetrical, and all lower-limb reflexes were brisk and equal. There was some slight depression of sensation involving the right L5 dermatome region.
25 It was Mr Barrett’s view that the plaintiff was suffering from disruptions involving her four lower-lumbar intervertebral discs, the most significant disruptions occurring at the two lower-lumbar intervertebral disc levels, causing her mainly right L5 and S1 root sciatica, along with her low-back pain. He noted that the plaintiff had no significant symptoms of back pain or sciatica until the incident on 8 March 2007, but said it was likely that her injuries, up to then being asymptomatic, were related to the heavy physical work as a chef. He considered the plaintiff had made only a partial recovery, and noted that substantial lower-lumbar disc disruptions have limited power to heal or repair. He considered she would experience symptoms and disabilities related to her lumbar spine into the foreseeable future. He considered she had no capacity to return to her pre-injury employment or any employment that included prolonged stooping and heavy lifting.
26 In April 2010, Mr Barrett reported that he re-examined the plaintiff on 21 April 2010 at the request of her solicitors. He said the plaintiff continued to experience intermittent low-back pain and right sciatica which she said was now stabilised to a “reasonable” level. He noted that she had assistance with her housework and heavy shopping. He considered that she suffered low- back pain and mainly right sciatica which continued to trouble her to a moderate degree but are compatible with her current full-time and light work. He said she was unfit to return to her pre-injury work as a chef, and considered that her injuries had affected her social, domestic and recreational activities, which was likely to continue for the foreseeable future, due to the inability of lumbar-disc ruptures to heal or repair.
27 In a report of 1 September 2010, he said that he had reviewed the plaintiff’s general practitioner’s clinical notes from 17 July 1990 up to 3 October 2008. He noted that there had been a number of complaints by the plaintiff for back spasm and low-back pain. He said that these complaints were occasional, spread over a relatively prolonged period of time, and did not produce significant loss of working time. He said he had no reason to alter his earlier opinions expressed in his reports of October 2008 and April 2010.
28 On 29 April 2010, Mr John F O’Brien, orthopaedic surgeon, medically examined the plaintiff at the request of her solicitor. It was his view that the plaintiff’s injury at work precipitated the back and subsequent leg pain which predominantly involved the right leg. He noted that the plaintiff demonstrated some restriction of lumbar movements, and the presence of mild signs of nerve-root compromise, with evidence of some residual radiculopathy in the right L5 distribution. He considered that the x-rays demonstrated pre-existing lumbar-disc degenerative change, with the MRI of September 2007 demonstrating a significant disc bulge which appears to result in some compromise of the L5 nerve root, which would correlate with the clinical findings.
29 It was Mr O’Brien’s view that the plaintiff continues to experience discogenic back pain and associated L5 nerve-root symptoms, and that the plaintiff’s employment was a significant contributing factor to the specific disc pathology. He did not consider that the recent motor-vehicle accident had affected the pathology, and he did not consider the plaintiff’s symptoms related to generalised degenerative changes noted on x-ray of the lumbar spine. He thought her condition was stable. He was guarded in relation to the prognosis. He thought she would continue to experience back and leg pain, and there is the possibility of exacerbations of current symptoms. He thought she had a moderate level of disability associated with ongoing lumbar-disc pathology. She is restricted in relation to any heavy physical tasks. She could not return to her pre-injury occupation, nor any employment which required heavy physical duties. He considered her employment will be confined to modified duties.
30 On 1 September 2010, Mr O’Brien reported that he had had viewed the general practitioner’s clinical notes. He considered that the previous references of back pain would appear to suggest minimal temporary lumbo- sacral pathology, and did not suggest the plaintiff had suffered recurrent discogenic pathology prior to the incident of March 2007.
The Defendant’s Medical Evidence
31 On 19 July 2007, Dr Philip Mutton, consultant occupational physician, examined the plaintiff at the request of the defendant’s insurer. It was his view that the plaintiff had suffered a musculoligamentous strain with CT evidence of bulging at L3-4 and L4-5. He thought they were unlikely to be acute changes in response to the particular injury but are likely to be pre- existing. He expected that the plaintiff would have full resolution of her injuries and be able to return to pre-injury duties. He said she suffered low- back pain in the course of an out of hours tuition course.
32 Dr Mutton re-examined the plaintiff in November 2007 and considered there had been some positive steady improvement since his last assessment. He considered it was likely she suffered aggravation of pre-existing changes in the course of her computer course. He expected she would recover with ongoing conservative measures. He thought a less physically demanding work role may be beneficial but expected she could return to her pre-injury duties after further treatment and the passage of time.
33 In April 2008, he said, after reviewing the plaintiff in March 2008, that she had improved mildly. He noted she was not working but was undertaking studies. He had reviewed Mr Barrett’s report. He disagreed with Mr Barrett’s assessment and said that he had the opportunity to assess the plaintiff’s workplace. He said his initial impression was that the plaintiff would not be able to return to her cooking duties but after review of the workplace, he considered it was a relatively light function, equivalent to a domestic cooking situation and light housework/cleaning. He therefore confirmed that the plaintiff could return to her previous duties. He noted that the radiological investigations revealed changes in the lower four lumbar discs and said that such changes are commonly seen in persons of the plaintiff’s age. He said there was no evidence of neural compression or radiculopathy on the MRI. He said that “she is now in a chronic low-back pain situation” and the most appropriate treatment is activity.
34 Dr Mutton reviewed the plaintiff in April 2008 and said that her employment was not a material contributing factor to her condition. He noted that while she complained of mild symptoms, there appeared to be no loss of function. He considered the workplace aggravation had ceased. He said she was independent in terms of activities of daily living and noted that she was undertaking study. He said her medication is reduced to sustained-release, Paracetamol in the main.
35 On 18 December 2008, Mr Robert Marshall, surgeon, examined the plaintiff at the request of the insurer and said he agreed with the views of Dr Phillip Mutton. He considered the plaintiff’s employment had not been a significant factor in the development of her problems, because she had multiple discs involved and there was never any specific injury which could have caused any problems in any of those discs. He said that rotation does not occur at the lumbar spine, because the facet joints are vertically disposed in relation to the axis of rotation. The only rotation possible in the thoracolumbar region occurs in the thorax and not in the lumbar region, where only flexion/extension and lateral flexion is possible. He said it was not possible to damage the lumbar discs by this sort of movement. He said that the four lower discs were involved and it was clear that these had been disrupted to varying extents. He said this was characteristic of age-related degeneration which is common, happening in women and men around the age of fifty. He considered she was suffering from an age-related degenerative change in her lower back.
36 On 18 May 2010, Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors. He noted that the plaintiff had a recurrent low-back pain extending back to 1999. He noted that the previous pain was also associated with right-sided symptoms. He considered the plaintiff had a multi-level degenerative lumbar disc desiccation with a small localised protrusion of the L4-5 lumbar intervertebral disc. These degenerative changes relate to constitutional factors and the ageing process. He said the degenerative pathology was longstanding, and symptoms from this pathology were recorded in the file of Dr Kerri Pearce in 1999. He said it was difficult to postulate how two hours of sitting on a low chair and rotating the thoracolumbar spine could cause a physical injury to the back which would lead to unremitting back pain from that time onwards. He considered that particularly awkward postures, such as described in this case, may cause an exacerbation of pain from established degenerative lumbar disc pathology. Therefore, it is consistent that the plaintiff, who already had a history of recurrent low-back pain with right-sided features, experienced these symptoms over the period of sitting. He said the only explanation was largely a spontaneous progression of the established degenerative disc pathology as a result of the prolonged sitting and rotation of her back. He said she did not have a current work capacity for her pre-injury employment as a chef. He thought she had a capacity for suitable employment. He regarded the relationship between her back condition and employment as more one of coincidence rather than causation.
Video Surveillance
37 I was shown a video of the plaintiff taken over one hour. I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described may have days when she is able to do more activities than on other days. In particular, I saw the plaintiff bending well into the backseat of the car and extracting from the car empty shopping bags. I also saw the plaintiff carrying bags to the car being accompanied by another person with what appeared to be heavier bags. The plaintiff put the bags she was carrying into the backseat of the car and then put the heavier bags that the other person was carrying into the car. The plaintiff was shown doing her shopping in a supermarket. She was shown to bend to the bottom shelves and put things in her basket. She was then shown pushing a trolley up an incline. She agreed that the level of activity depicted by the film reflected her level of activity in terms of the way she walked, bent, lifted and carried things.
38 The video depicted the plaintiff conducting herself in a manner totally consistent with any fifty-three-year-old woman engaged in the tasks she was shown to perform.
Credit of the Plaintiff
39 The plaintiff impressed me as a very straightforward witness who made no attempt to exaggerate the extent of her impairment or its impact upon her. I formed the impression that the plaintiff has sought to manage her condition and her current and future employment by retraining. This is to her credit. She has attempted to deal with the consequences of her injury in a practical manner. That is, she leaves for work early to avoid the crowded train. She has arranged with her daughter to do the heavy household chores which she is no longer able to do.
40 She made concessions, and I accept that she is a witness of truth.
Analysis of the Evidence
41 I must be satisfied that the plaintiff suffered a compensable injury – that is, an injury, linked or related to employment after 20 October 1999. In this case, the plaintiff had suffered lower back pain from time to time prior to the work injury. In cross-examination, she said that her back would be fine until a particular event occurred, like falling over with the dog or moving house. On those occasions, she would have pain for one or two weeks, then recover without loss of work time.
42 The plaintiff’s medical evidence accepted that prolonged sitting in a low chair on 8 March 2007 at work precipitated back and leg pain. Mr Barrett and Mr O’Brien said that her employment was a significant contributing factor to her disc pathology.
43 The defendant’s medical evidence varied. Initially, Dr Mutton said it was likely the plaintiff suffered injury in the course of her employment. In November 2007, he said she had aggravated age-related changes, and in March 2008, he said she may have sustained aggravation in the course of her tuition. When he reviewed her in April 2008, he said that her employment was not a material contributing factor to her condition. Mr Marshall said her work was never a contributing factor. Mr Simm explained the level of pain and persistence of pain by saying that:
“She had what was largely a spontaneous progression of the established degenerative lumbar disc pathology as a result of the prolonged sitting and rotation of her back.”
44 Mr Barrett treated the plaintiff on a number of occasions. He and Mr O’Brien reviewed the general practitioner’s clinical notes from 2000. Dr Mutton initially supported her claim when he saw her immediately after her injury.
45 Given the plaintiff’s medical evidence, the reports of Mr Simm and the reports of Mr Mutton, save for his last report, I am satisfied that the plaintiff suffered a compensable injury which is linked or related to her employment.
46 The majority of the medical opinions suggested that her impairment was of a permanent nature. What was in issue was the consequences of the plaintiff’s injury and whether they met the test of seriousness for pain and suffering, in that they could be considered to be “more than significant or marked and as being at least very considerable” when compared to other cases in the range.
47 Counsel for the defendant submitted that this was an aggravation case. I accept the plaintiff did have complaints of back pain in the past. A review of the osteopath’s notes confirm that she attended complaining of back pain but generally after some incident, for example, falling walking a dog, being knocked over by a dog, moving house and constructing furniture. The plaintiff said that in the past she had pain for one to two weeks then recovered. After March 2007, the pain was constant.
48 I accept the radiological evidence disclosed that she had degenerative changes, however, Mr Barrett accepted that her symptoms became particularly troublesome following the prolonged sitting in March 2007, and Mr O’Brien did not consider the plaintiff’s symptoms related to generalised degenerative changes. Mr Simm said she had a multi-level lumbar disc degeneration but that her right-sided lower limb symptoms became problematic after the work incurred, indicating that there may have been some progression of the annular changes at the L4-5 level following the incident in March 2007.
49 Based on Petrovski v Galletti,[8] affirmed in Guppy v Victorian WorkCover Authority and Bendigo Access Employment Inc.,[9] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve serious long-term impairment of body function.
[8] [1994] 1 VR 436
[9] [2010] VSCA 164
50 In re-examination, the plaintiff said she always has back pain. She said that she takes Panadol Osteo before she goes to work and when she comes home, and if the pain is bad at work, she applies Nurofen Gel. In May of this year, the plaintiff told Mr Simm she takes Panadol Osteo when required and may go for a week or two without medication. She said she took Voltaren in a similar way and attends her general practitioner infrequently.
51 In April of this year, the plaintiff told Mr Barrett that she was continuing to experience some intermittent low-back pain and right sciatica, which she says is now stabilised to a reasonable level, yet when she saw Mr O’Brien in September of this year, she said she had constant pain which was now aggravated by mechanical factors, she regularly used analgesic medication and is regularly reviewed by her local doctor, and that she undergoes osteopathic treatment about once per month.
52 In her most recent affidavit, the plaintiff said she continues to take Panadeine Osteo, Voltaren and Voltaren Gel, but did not say how often, and visits doctors from time to time.
53 The plaintiff’s doctors accepted that she had sustained disruptions of her four lower lumbar invertebral discs, particularly involving the two lower discs, which produced low-back pain and mainly right sciatica which continued to trouble her to a moderate degree, but are compatible with her current full-time work. Treatment has been of a conservative nature of rest and medication. It was accepted by all doctors that her injuries have reduced her social, domestic and recreational activities which is likely to continue into the foreseeable future.
54 The plaintiff impressed me as a woman who actively engaged in recreational activities. The evidence was that she lived in the Dandenongs and then Monbulk and her activities were centred around what that area offered, namely beautiful gardens, bushwalking and a small community which involved substantial entertaining. She said gardening and entertaining were her passions. She has only had one full-time job, which lasted eight months. Aside from that, she has worked part-time for short periods and been involved in home duties. Whilst I accept that her recreational activities of gardening, entertaining and bushwalking are limited by her injuries, I note that the plaintiff is now working full-time, no longer lives in the Dandenongs’ community and is now living in Ringwood East.
55 It was to the plaintiff’s credit that she has re-trained and adapted her lifestyle to accommodate her restrictions. There is no doubt that the plaintiff’s working life and her home life have been affected by her back pain.
56 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[10]
“… many disturbances are considerable, in the sense that they are
important or substantial, without being very considerable. … .”
[10] [1998] 1 VR 702
57 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of “very considerable” magnitude. Although the plaintiff’s back injury had a notable effect on her life, she retains the capacity to participate in many activities and to undertake full- time work.
58 Taking all of the evidence into account, I am not persuaded, on the balance of probabilities, having viewed and considered the surveillance film, and in light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a back injury at work in March 2007. I accept that the injury has had consequences to her, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, that the injury can “fairly be described as being more than significant or marked and as being at least very considerable”.
59 Accordingly, I dismiss the application.
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