Bruning v Mitchell Health Services and Anr

[2012] VCC 404

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-11-01193

DEBRA LEE BRUNING

Plaintiff

v

MITCHELL COMMUNITY HEALTH SERVICES

-and-

VICTORIAN WORKCOVER AUTHORITY

Defendant

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JUDGE:	His Honour Judge Misso
WHERE HELD:	Melbourne
DATE OF HEARING:	26 & 27 March 2012
DATE OF JUDGMENT:	13 April 2012
CASE MAY BE CITED AS:	Bruning v Mitchell Health Services & Anr
MEDIUM NEUTRAL CITATION:	[2012] VCC 404

REASONS FOR JUDGMENT

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SUBJECT: ACCIDENT COMPENSATION

CATCHWORDS: serious injury - injury to the lower back in 2006 - further injury to lower back in 2008 - whether the aggravation in 2008 ceased - pain and suffering consequences -whether the consequences were serious
LEGISLATION: Accident Compensation Act 1985, s.134AB (38)
CASES CITED: Barwon Spinners Pty Ltd and Others v Podolak (2005) 14 VR 622
RULING: leave granted to the plaintiff to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of her employment with the first defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rattray QC with Mr S Martin	Slater & Gordon Ltd, Lawyers
For the Defendant	Mr P Jens	Herbert Geer

HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed 18 March 2011 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the first defendant.  

2       The plaintiff seeks leave to bring such a proceeding for pain and suffering.

3       Mr P Rattray QC appeared with Mr S Martin of Counsel for the plaintiff and Mr P Jens of Counsel appeared for the defendant. 

4       The body function which the plaintiff says has been lost or impaired is her lower back. 

5       The following evidence was adduced during the hearing:

·     The plaintiff gave evidence and was cross-examined;

·     The plaintiff tendered her Court Book (“PCB”), pages 14-36; 87-88; 89-123:  Exhibit A;

·     The plaintiff tendered the Kilmore Medical Centre medical records from 22 June 2006 to 25 September 2008: Exhibit B

·      the plaintiff tendered the Wallan Medical Centre medical records from 10 October 2008: Exhibit C

·     The defendant tendered their Court Book (“DCB”), pages 12-36 and 38-40 Exhibit 1;

·      the defendant tendered the report of Dr Astley, general practitioner dated 19 July 2010: Exhibit 2

6       The application is brought under the definition of “serious injury” contained sub-s. (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.

The Statutory Scheme

7       The relevant considerations which apply to such an application are as follows:

(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.

(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.

(c) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.

(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.

(e) In conformity with Barwon Spinners Pty Ltd and Others v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s. (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

[1](2005) 14 VR 622, at paragraph 11

8 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Issues

9       The plaintiff suffered an injury to her lower back on 29 November 2006 in the course of her employment with the first defendant. She was walking up a pathway to visit a client of the first defendant when she slipped on the unstable surface of the ground beneath her feet. She jarred her back. She did not fall. She was met with immediate pain in her lower back.

10      The plaintiff's evidence and the medical evidence disclosed that the plaintiff suffered a significant injury to her lower back from which she did not recover. I will refer to that evidence in more detail shortly.

11      The plaintiff was subsequently employed by the Kilmore Medical Centre. She suffered an aggravation of her lower back injury on 17 May 2008 in the course of her employment with it. She tripped over a box which had been left at the entrance of the corridor within the premises.

12      Mr Jens’ primary submission was that the plaintiff suffered an injury to her lower back on 29 November 2006 which was aggravated on 17 May 2008. The aggravation constitutes a further injury. The symptoms of the aggravation continue to affect the plaintiff. Therefore, the consequences contended for by the plaintiff are contributed to by both injuries.

13      In the alternative, Mr Jens submitted that if I was persuaded that the aggravation which occurred on 17 May 2008 has ceased then the pain and suffering consequences contended for by the plaintiff cannot meet the statutory test.

14      I have considered the plaintiff's evidence and the medical evidence, and also the submissions made by Mr Rattray and Mr Jens. I have concluded that the plaintiff suffered an injury to her lower back on 29 November 2006. It was exacerbated or temporarily aggravated by what occurred on 17 May 2008. The pain and suffering consequences contended for by the plaintiff are solely contributed to by what occurred on 29 November 2006, and those pain and suffering consequences meet the statutory test.

29 November 2006

15      The plaintiff saw Dr Dzartov, general practitioner at the Kilmore Medical Centre on 30 November 2006. Dr Dzartov treated the plaintiff until 6 February 2007 when the plaintiff’s treatment was taken over by Dr de Sousa, general practitioner at the Kilmore Medical Centre. During the period that Dr Dzartov treated the plaintiff she was prescribed painkilling medication and was referred to have physiotherapy.[2]

[2]Exhibit B

16      Dr de Sousa first treated the plaintiff on 21 February 2007 for the injury to her lower back. He noted that the plaintiff had complained of pain radiating down the left side of her lower back into her left leg from about mid-January which had ceased by the time he first saw her. It would appear that he continued her conservative treatment. Dr de Sousa referred the plaintiff to have an MRI scan which was undertaken on 30 April 2007. It demonstrated a left L4/5 paracentral disc protrusion with an annular tear compressing the left L5 nerve root within the subarticular recess producing a moderate central canal stenosis.[3]

[3]PCB 87

17      Dr de Sousa referred the plaintiff to Mr Wilde, orthopaedic surgeon. The plaintiff saw Mr Wilde on 9 May 2007. On that occasion the plaintiff gave a history to Mr Wilde which led him to conclude that she was suffering from mechanical lumbar pain with pain referred into her left leg made worse with standing, walking or sitting. He examined the plaintiff and inspected the MRI scan. His prognosis was guarded. He expected that she would always suffer low-grade symptoms of chronic lumbar pain and stiffness and would have to modify her personal and work activities to accommodate those symptoms in order to avoid further deterioration. His clinical diagnosis was mechanical lumbar back pain secondary to an annualar tear at L4/5 without radiculopathy.[4]

[4]PCB 94-96

18      There is unanimity in the medical evidence consistent with the clinical diagnosis made by Mr Wilde that the plaintiff suffered an injury to her lumbar spine as a result of the incident on 29 November 2006 - Mr Jones, orthopaedic surgeon;[5] Dr Karna, rheumatologist;[6] Mr Kierce, orthopaedic surgeon; [7] Mr Buzzard, general surgeon;[8] Mr King, orthopaedic surgeon;[9] Dr Sutcliffe, occupational physician,[10] and Mr Polke, orthopaedic surgeon.[11]

[5]PCB 122

[6]DCB 34

[7]PCB 120f

[8]PCB 120p

[9]PCB 110

[10]PCB 117

[11]DCB 21 and 27

19      All the foregoing medical practitioners accept that the plaintiff suffered an injury to her lumbar spine, however, there is some variation in the diagnosis of the injury. There is also a difference of opinion regarding whether there was a temporary or more significant exacerbation or aggravation of that injury on 17 May 2008. However, what is most significant is that there is support for the diagnosis made by Mr Wilde, and in particular, from Mr Jones, Dr Karna, Mr King, Dr Sutcliffe and Mr Polke. Mr Kierce and Mr Buzzard diagnosed a soft tissue injury. However, such a diagnosis does not exclude the soft tissues involving the disc at L4/5. Both were provided with the MRI scan undertaken on 30 April 2007, so they were aware of the radiologist opinion of the magnitude of the injury to that disc and its associated structures.

20      Furthermore, the most recent examinations of the plaintiff were undertaken by Mr Wilde and Mr Polke. In his second report dated 8 March 2012 Mr Wilde referred to having seen the plaintiff on 9 May 2007, 26 September 2008 and 17 February 2012. Although, he restated his previous diagnosis he then commented that he did not think the findings on the MRI scan were significant. He was somewhat perplexed by the fact that the plaintiff had undergone a significant amount of treatment without any improvement. This led him to say that he thought there was a degree of psychological reaction amplification of her symptoms. Despite the foregoing he considered that her prognosis was poor.[12]

[12]PCB 101-102

21      Mr Polke re-examined the plaintiff on 7 February 2012. On the two occasions on which he examined the plaintiff he diagnosed the plaintiff’s injury as left-sided L4/5 and L5/S1 disc prolapses. He considered her short and long-term prognosis to be only fair.[13]

[13]DCB 27

22      In the end, I am satisfied that the plaintiff suffered a major injury on 29 November 2006. I prefer the diagnosis made by Mr Wilde principally because he is the treating orthopaedic surgeon, and a specialist in back surgery. I am fortified in reaching that conclusion because of the extent of the diagnoses made by other medical practitioners, among whom are some orthopaedic surgeons.

17 May 2008

23      The plaintiff lodged a workers injury claim form relevant to what occurred on 17 May 2008. The claim form was lodged on 14 October 2008 some five months following that incident.[14]

[14]DCB 12-13

24      The plaintiff said that she experienced increased symptoms in her lower back as a result of that incident, but that the symptoms settled back to what they were like before the incident occurred, that is, to the same level of symptoms she was experiencing as a result of the incident which occurred on 29 November 2006. However, Mr Jens put a number propositions to the plaintiff which he ultimately submitted contradicted that evidence.

25      I will firstly look at the explanation given by the plaintiff that the symptoms receded back to what they were like before the 17 May 2008 incident occurred. During cross examination Mr Jens put a number of certificates of capacity to the plaintiff which demonstrated, on their face, that she suffered an injury on 17 May 2008. In connection with those certificates the plaintiff essentially said that she did not believe that they were intended to represent that she suffered an injury on 17 May 2008 which resulted in her suffering an incapacity. She gave the following explanation:

"Q.Do you agree that that's what you were saying, that you didn't realise that those certificates were alleging in effect that your claimed injury was the one from the Kilmore Medical Centre? Were you suggesting that or not?

A.I'm suggesting that I believed that the employer was Kilmore Medical Centre. Am I allowed to tell you the reasons behind my assumption?

Q.Well, first of all, what was your assumption prior to yesterday's questioning?

A.So I was covered by QBE through Mitchell Community Health, and that was to expire in Novembe r2008. I had the second incident at Kilmore Medical Centre in May 08, but was still covered by Mitchell Community Health's insurance company. There was a meeting with Dr De Sousa, my case manager from Mitchell Community Health's insurance company, Micheline - but I can't remember her surname - and the time span of the compensation payments came up, and from memory it was discussed and agreed that I should put in an incident claim with Kilmore Medical, and so that's what I did. I did not - I must admit, I did not understand the legalities or ramifications of it.[15]

[15]Transcript 94

26      In re-examination Mr Rattray referred the plaintiff to Wallan Medical Centre medical records, and in particular, to 10 October 2008 when she saw Dr McWilliam, general practitioner. Dr McWilliam prepared a long note of the consultation with the plaintiff. The note was put to the plaintiff by Mr Rattray. She said she was present during the consultation when the matters referred to in the note were discussed. The relevant part of the note is as follows:

"Basically, because has had second injury, has been told that needs new claim with Kilmore medical Centre – has d/w Tony De Sousa who is apparently happy for this but thinks inappropriate for him to do - recommended she see another GP for paperwork ? Would be med cert or continuing cert of capacity."[16]

[16]Exhibit C

27      The plaintiff was then asked why she made the second claim. She said:

" Q.Why was a second claim made? That is, a claim against the Kilmore Medical Centre?

A.This is what I was saying before. I just - I did what I was advised to do by people that I had faith in."[17]

[17]Transcript 103

28      The principal attack made upon the plaintiff by Mr Jens was firstly, that it is clear that there was an incident on 17 May 2008 which exacerbated or aggravated the pre-existing injury to the plaintiff's lower back, and secondly, the plaintiff was in receipt of certificates of incapacity which certified her as being unfit for duty and for modified duties at various stages. Mr Jens tendered four medical certificates as a sample of a large body of medical certificates. They are dated 14 October 2008, 18 December 2008, 18 January 2010, and 21 June 2010.[18]

[18]Exhibit 3

29      The certificate dated 14 October 2008 refers to the incident which occurred on 17 May 2008 as being the date of injury. It then refers to a diagnosis of injury. In particular it refers to an L4/5 disc protrusion/annular tear with sciatica in the left leg. It then refers to that injury being similar to a previous injury in November 2006, that is the injury which occurred on 29 November 2006. That certificate certified the plaintiff as being unfit for duty as did the certificate dated 18 December 2008. The subsequent two certificates certified the plaintiff as fit for modified duties.

30      Mr Jens submitted that it was difficult to reconcile how the plaintiff obtained those certificates, which she signed on page two of the certificates, if she was representing that what occurred on 17 May 2008 was not an aggravation of the pre-existing injury to her lower back.

31      I have carefully read all of the medical reports in which the plaintiff gave a history of both incidents. It is clear to me that those medical practitioners who accepted that the aggravation ceased based it on the history given by the plaintiff, as did those who were of the opinion that the aggravation persisted. It would appear that it was a matter of their judgement based on the history given by the plaintiff, however, what is obvious from all of those opinions is that none of the medical practitioners consider that the plaintiff suffered any additional pathology over and above what she suffered due to the incident which occurred on 29 November 2006.

32      Indeed, Mr Wilde stated with certainty that what the plaintiff suffered in the incident which occurred on 17 May 2008 was an exacerbation of her pre-existing injury to her lower back which was temporary.[19] Mr Kierce accepted the plaintiff's account that she recovered from what occurred on 17 May 2008,[20] as did Mr Buzzard.[21] Mr King considered that the plaintiff's lower back pain was due to what occurred on 29 November 2006 and her lesser problem of left-sided sciatica occurred after 17 May 2008. I assume he meant to implicate the 17 May 2008 incident in the production of an injury resulting in left-sided sciatica.[22] Mr Polke considered that 30 percent of the plaintiff's injury and symptoms were due to 29 November 2006 and 70 percent to 17 May 2008.[23]

[19]PCB 102

[20]PCB 120

[21]PCB 120o

[22]PCB 110

[23]DCB 22 and 27. I have not referred to the other medical practitioners because they had not made any useful comments on apportionment.

33      I watched the plaintiff giving her evidence closely. She gave her evidence in a rather halting way which is not evident in the manner in which the transcript has been produced. She often stared straight ahead after being asked question and took some appreciable time before she gave an answer. She often gave her answers in a manner which gave me the impression that she found it difficult to readily find the words to compose an answer. At no time did I form the opinion that the plaintiff was prevaricating. She struck me as being a rather simple woman for whom examination and cross examination was in itself a trial.

34      I have referred to the plaintiff's mannerisms and intellect because I think they marry up with my acceptance of the reasons advanced by the plaintiff for putting in a claim for 17 May 2008 and her misunderstanding of what the certificates actually represented. I accept the answer she gave to Mr Jens regarding advice given that she should put in a claim, and I think a lot of that is explained by the clinical note of Dr McWilliam of 10 October 2008. In the end I do not accept that the plaintiff suffered anything other than either an exacerbation or a temporary aggravation of the pre-existing injury to her lower back. I think she was influenced to put in the claim against her own views that the claim had any real substance.

Consequences

35      The plaintiff was born on 13 January 1960. She is now 52 years of age. She is a married woman with three children.

36      It is clear from my analysis of the medical evidence that I accept the diagnosis made by Mr Wilde. Furthermore, it is clear from the preponderance of the medical evidence that the plaintiff has had an actively symptomatic lower back injury since its occurrence, and it is likely that she will suffer symptoms to a similar degree for the foreseeable future. I have little doubt that the impairment of function of the plaintiff's lower back is permanent.

37      The pain and suffering consequences suffered by the plaintiff easily meet the statutory test. The plaintiff was unable to work until about January 2007 when she made an attempt to return to work. It was during that period that she continued to suffer significant symptoms of pain and restriction of movement, and also pain radiating from her lower back into her left leg. She returned to work on light duties in about August 2007. She ceased work in about October 2007. Thereafter she was not employed until about March 2008 when she commenced employment with the Kilmore Medical Centre working about 15 hours per week.

38      After the incident of 17 May 2008 occurred the plaintiff went off work as a result of the exacerbation or aggravation of her pre-existing lower back injury. She regained her capacity for work and commenced work with Glenroy Chiropractic Clinic as a receptionist. There appears to have been some measure of falling out between herself and her employer which was a significant event in her employment coming to an end on 25 October 2010. She subsequently commenced working with Smith's Legal in May 2011 working up to 15 hours per week until 20 December 2011.

39      Mr Jens put to the plaintiff that she had never intended to work full-time, and that was consistent with her working history. However, Mr Rattray referred me to the plaintiff's first affidavit where she said that she had planned to get back to full-time work at a time when her children gained some independence. He reminded me that she was not challenged on that issue. It seems to me that the plaintiff has had, and probably continues to have, a capacity for light clerical/administrative type work, but whether she is capable of doing that work full-time is problematic due to the nature and extent of her lower back injury.

40      I accept the plaintiff's evidence that she suffers persistent pain in her lower back which varies. Her capacity to undertake full, free and unrestricted movements of her lower back has been lost. Activities which involve bending, lifting, twisting and stooping are likely to lead to flareups of pain. She is vulnerable to the return of the shooting type pain which she has experienced in her left leg.

41      The plaintiff requires treatment. She sees Dr Astley on a monthly basis. She is prescribed Tramal drops, and she takes Panadol Osteo tablets. Her medication has changed from time to time because of side-effects she experienced with some types of medication. Both are used by her for pain relief. It should be remembered that she has had other medical treatment over time. Very little of it has afforded her any significant relief from the symptoms which she describes.

42      She described a number of activities and interests which she had prior to the occurrence of the injury to her lower back. She had an interest in car restoration and mechanics; attending car race meetings; attending football games; travelling; reading; scrap booking; and gardening. She is not able to cook and clean and do her domestic chores without difficulty.

43      In summary, I am satisfied that the pain and suffering consequences which the plaintiff has suffered, and continues to suffer, have arisen from the incident which occurred on 29 November 2006. I am satisfied that the injury the plaintiff suffered is consistent with the diagnosis of Mr Wilde. I am satisfied that the injury has impaired the function of the plaintiff's lower back, and that the impairment is permanent. I am satisfied that the consequences to the plaintiff which affect her capacity to work and her capacity to undertake social, recreational and domestic activities have been affected adversely. I am satisfied that she requires and will require medical treatment for her injuries.

Conclusion

44 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for injuries for pain and suffering arising out of her employment with the first defendant.

45      After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

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